Pages 9773±10004 Vol. 60 2±22±95 No. 35 federal register February 22,1995 Wednesday issue. Dallas, TX,seeannouncementontheinsidecoverofthis For informationonbriefingsinWashington,DC,and Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 Agricultural Marketing Service Energy Efficiency and Renewable Energy Office PROPOSED RULES NOTICES Florida grapefruit, oranges, and tangelos; grade standards, Meetings: 9990–10004 State Energy Advisory Board, 9830–9831 Agriculture Department See Agricultural Marketing Service Environmental Protection Agency See Forest Service RULES See Grain Inspection, Packers and Stockyards Air quality implementation plans; approval and Administration promulgation; various States: Washington, 9778–9780 Air Force Department Pesticides; tolerances in food, animal feeds, and raw NOTICES agricultural commodities: Environmental statements; availability, etc.: Acrylamide-potassium acrylate-acrylic acid copolymer, Base realignment and closure— crosslinked, 9781–9783 England AFB, LA, 9822–9823 Carbofuran, 9780–9781 Imidacloprid, 9783 Antitrust Division Permethrin, etc., 9783–9786 NOTICES PROPOSED RULES Competitive impact statements and proposed consent Air and water programs: judgments: Pulp, paper, and paperboard industries; effluent Playmobil USA, Inc., 9860–9866 limitations guidelines, pretreatment standards, and Arctic Research Commission new source performance standards; data availability, 9813 NOTICES Meetings, 9820 Air pollutants, hazardous; national emission standards: Wood furniture manufacturing operations, 9812–9813 Army Department Air quality implementation plans; approval and NOTICES promulgation; various States: Meetings: Massachusetts, 9810–9812 Science Board, 9823 Washington, 9802–9810 Air quality planning purposes; designations of areas: Commerce Department Maine, 9813–9815 See International Trade Administration Pesticides; tolerances in food, animal feeds, and raw See National Oceanic and Atmospheric Administration agricultural commodities: Imidacloprid, 9815–9816 Committee for the Implementation of Textile Agreements Methyl anthranilate, 9816–9817 NOTICES NOTICES Textile and apparel categories: Agency information collection activities under OMB Correlation with U.S. Harmonized Tariff Schedule, 9822 review, 9835 Diesel emissions; health assessment document availability; Defense Department extension of public comment period, 9835–9836 See Air Force Department Drinking water: See Army Department Public water supply supervision program— Education Department New York, 9836–9837 NOTICES Virgin Islands, 9837 Grantback arrangements; award of funds: Pesticide registration, cancellation, etc.: Oregon, 9823–9824 Green Light 10% Sevin Dust, etc., 9837–9838 LipaTech, Inc., 9838–9839 Energy Department Pesticides; temporary tolerances: See Energy Efficiency and Renewable Energy Office Monsanto Co., 9839–9840 See Federal Energy Regulatory Commission NOTICES Environmental statements; availability, etc.: Federal Aviation Administration Savannah River Site, SC— PROPOSED RULES F-Canyon plutonium solutions, 9824–9829 Airworthiness directives: Grant and cooperative agreement awards: General Electric Co., 9792–9794 WalMart Stores, Inc., 9829–9830 Jetstream, 9794–9796 Meetings: Lockheed, 9796–9799 Nuclear Safety External Regulation Advisory Committee, Piper, 9799–9800 9830 Teledyne Continental Motors, 9800–9802 IV Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Contents Federal Communications Commission Grain Inspection, Packers and Stockyards Administration RULES PROPOSED RULES Common carrier services: Grain standards: Public mobile services— Corn, 9790–9792 Revision; correction, 9889–9892 Radio services, special: Health and Human Services Department Private land mobile services— See National Institutes of Health 220-222 MHz frequency band use; station construction See Substance Abuse and Mental Health Services deadline extension, 9787–9788 Administration Federal Emergency Management Agency Immigration and Naturalization Service NOTICES RULES Disaster and emergency areas: Immigration: California, 9840 Immigration forms; application for asylum and withholding of deportation (Form I–589); compliance Federal Energy Regulatory Commission date establishment, 9774 RULES Philippine natives naturalization (Form N–400); fee Natural Gas Policy Act: schedule, 9773–9774 Electronic Bulletin Boards Standards Natural gas pipeline tariff rate related to released Interagency Committee on Women's Business Enterprise capacity, 9775–9776 See Women’s Business Enterprise Interagency Committee NOTICES Electric rate and corporate regulation filings: Interior Department Consolidated Edison Co. of New York, Inc., et al., 9831– See Fish and Wildlife Service 9833 See Land Management Bureau Washington Power Co., L.P., 9833 See National Park Service Environmental statements; availability, etc.: See Surface Mining Reclamation and Enforcement Office Takoma, WA, 9831 RULES Hydroelectric applications, 9833–9835 Assistance programs; administrative and audit requirements and cost principles: Federal Maritime Commission Nonprocurement debarment and suspension; drug-free RULES workplace; and lobbying certification requirements, Conflict of interests, 9786–9787 9786 NOTICES Agreements filed, etc., 9840 Range management: Freight forwarder licenses: Grazing administration, 9894–9971 Marmara, Inc., et al., 9840 Internal Revenue Service Federal Reserve System RULES NOTICES Income taxes: Meetings; Sunshine Act, 9888 Subchapter K anti-abuse rule Applications, hearings, determinations, etc.: Correction, 9776–9777 Bergau, Glenn Fred, 9840 First Community Bancshares, Inc., 9840–9841 International Trade Administration First Mariner Bancorp, et al., 9841 PROPOSED RULES North American Free Trade Agreement (NAFTA): Federal Trade Commission Antidumping and countervailing duties regulations, 9802 NOTICES NOTICES Premerger notification waiting periods; early terminations, Antidumping: 9841–9842 Canned pineapple fruit from— Prohibited trade practices: Thailand, 9820–9821 Equifax Credit Information Services, Inc., 9842–9847 Malleable cast iron pipe fittings from— Tele-Communication, Inc., 9847–9852 Brazil, 9821–9822 Fish and Wildlife Service Interstate Commerce Commission NOTICES NOTICES Environmental statements; availability, etc.: Railroad services abandonment: Incidental take permits— Huron & Eastern Railway Co., Inc., 9858 Travis County, TX; Golden-cheeked warbler, 9855 Norfolk Southern Railway Co., 9858–9859 Forest Service Judicial Conference of the United States NOTICES NOTICES Environmental statements; availability, etc.: Meetings: Kootenai National Forest, MT, 9818–9820 Judicial Conference Advisory Committee on— Bankruptcy Procedure Rules, 9859 General Accounting Office RULES Justice Department Practice and procedure: See Antitrust Division Personnel Appeals Board, 9773 See Immigration and Naturalization Service Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Contents V RULES Yankee Atomic Electric Co., 9870–9871 Organization, functions, and authority delegations: Deputy Attorney General, 9777–9778 Public Health Service NOTICES See National Institutes of Health Pollution control; consent judgments: See Substance Abuse and Mental Health Services Bostic, et al., 9859 Administration Nalco Chemical Co. et al., 9859–9860 Taylor Lumber & Treating, Inc., 9860 Research and Special Programs Administration NOTICES Labor Department Hazardous materials: See Mine Safety and Health Administration Applications, exemptions, renewals, etc., 9882–9885 Land Management Bureau Securities and Exchange Commission RULES Range management: NOTICES Grazing administration, 9894–9971 Meetings: Securities uniformity law; annual conference, 9871–9875 Mine Safety and Health Administration Self-regulatory organizations; proposed rule changes: NOTICES Depository Trust Co., 9875–9877 Program policy letters: Midwest Securities Trust Co., 9877–9878 First aid training for selected supervisors, 9986–9987 National Association of Securities Dealers, Inc., 9878– Public input in development and withdrawals, 9986 9880 Workplace examinations, 9987–9988 Philadelphia Stock Exchange, Inc., 9880–9881 Safety standard petitions: Applications, hearings, determinations, etc.: Serendipity Mining, Inc. et al., 9866–9868 Transamerica Tax-Free Funds Trust, 9881 National Highway Traffic Safety Administration Small Business Administration RULES NOTICES Organization, functions, and authority delegations: Agency information collection activities under OMB Director, Office of Vehicle Safety Compliance, 9788–9789 review, 9882 National Institutes of Health Substance Abuse and Mental Health Services NOTICES Administration Meetings: NOTICES National Cancer Institute, 9852–9853 Grants and cooperative agreement awards: National Institute of Mental Health, 9853 Pennsylvania Department of Health, 9853–9855 Grants and cooperative agreements; availability, etc.: National Oceanic and Atmospheric Administration Knowledge dissemination conference et al.; correction, NOTICES 9853 Meetings: Mid-Atlantic Fishery Management Council, 9822 Surface Mining Reclamation and Enforcement Office RULES National Park Service Abandoned mine land reclamation: NOTICES Grant procedures; miscellaneous amendments, 9974–9984 Concession contract negotiations: Jacob Riis Park, Gateway National Recreation Area, NY, Textile Agreements Implementation Committee 9857 See Committee for the Implementation of Textile Concessions contracts and permits; sample prospectus and Agreements related guidelines; availability, 9855–9857 Meetings: Thrift Depositor Protection Oversight Board Indian Memorial Advisory Committee, 9857 NOTICES National Register of Historic Places: Meetings; regional advisory boards: Pending nominations, 9857–9858 Regions I through VI, 9885 National Science Foundation Transportation Department NOTICES See Federal Aviation Administration Administrative programs; alternative means of dispute See National Highway Traffic Safety Administration resolution; policy statement, 9868 See Research and Special Programs Administration NOTICES Nuclear Regulatory Commission Aviation proceedings: NOTICES Hearings, etc.— Meetings: Navcom Aviation, Inc., et al., 9882 Reactor Safeguards Advisory Committee, 9868 Meetings; Sunshine Act, 9888 Treasury Department Regulatory guides; issuance, availability, and withdrawal, See Internal Revenue Service 9868–9869 NOTICES Applications, hearings, determinations, etc.: Agency information collection activities under OMB Blackhawk Engineering, Inc., 9869–9870 review, 9885–9887 VI Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Contents Women's Business Enterprise Interagency Committee Part V NOTICES Department of Agriculture, Agricultural Marketing Service, Meeting, 9887 9990–10004 Separate Parts In This Issue Reader Aids Part II Additional information, including a list of public laws, Department of the Interior and Bureau of Land telephone numbers, and finding aids, appears in the Reader Management, 9894–9971 Aids section at the end of this issue. Part III Department of the Interior, Office of Surface Mining Reclamation and Enforcement, 9974–9984 Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law Part IV numbers, Federal Register finding aids, and a list of Department of Labor, Mine Safety and Health documents on public inspection is available on 202–275– Administration, 9986–9988 1538 or 275–0920. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Contents VII CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 4 CFR 28...... 9773 29...... 9773 7 CFR Proposed Rules: 51...... 9990 810...... 9790 8 CFR 103...... 9773 299...... 9774 14 CFR Proposed Rules: 39 (5 documents) ...... 9792, 9794, 9796, 9799, 9800 18 CFR 284...... 9775 19 CFR Proposed Rules: 353...... 9802 355...... 9802 356...... 9802 26 CFR 1...... 9776 28 CFR 0...... 9777 30 CFR 870...... 9974 886...... 9974 887...... 9974 888...... 9974 40 CFR 52...... 9778 180 (4 documents) ...... 9780, 9781, 9783 185...... 9783 186...... 9783 Proposed Rules: 52 (3 documents) ...... 9802, 9810 63 (3 documents) ...... 9802, 9812, 9813 81...... 9813 180 (2 documents) ...... 9815, 9816 430...... 9813 43 CFR 4...... 9894 12...... 9786 18...... 9786 1780...... 9894 4100...... 9894 46 CFR 500...... 9786 47 CFR 1...... 9889 22...... 9889 90...... 9787 49 CFR 501...... 9788 9773 Rules and Regulations Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 This section of the FEDERAL REGISTER necessitated by a recent decision of the FOR FURTHER INFORMATION CONTACT: contains regulatory documents having general United States Court of Appeals for the W.R. Tollifson, Adjudications Officer, applicability and legal effect, most of which District of Columbia Circuit. The Naturalization and Special Projects are keyed to and codified in the Code of regulations have been in effect on an Branch, Immigration and Naturalization Federal Regulations, which is published under interim basis since November 16, 1994. Service, 451 I Street, NW., Room 3214, 50 titles pursuant to 44 U.S.C. 1510. In order to ensure that all interested Washington, DC 20536, telephone (202) The Code of Federal Regulations is sold by persons have an opportunity to submit 514–5014. the Superintendent of Documents. Prices of comments on the regulations, the SUPPLEMENTARY INFORMATION: new books are listed in the first FEDERAL deadline for receipt of comments is REGISTER issue of each week. being extended until March 15, 1995. On May 27, 1993, the Commissioner The Board will carefully consider all of the Immigration and Naturalization comments received by that date in Service published in the Federal GENERAL ACCOUNTING OFFICE preparing the final regulations. Register at 58 FR 30698–30699, an Beth L. Don, interim rule with request of comments 4 CFR Parts 28 and 29 to amend the Service’s application fee Executive Director, Personnel Appeals Board, U.S. General Accounting Office. schedule to include a surcharge for Personnel Appeals Board; Procedural applications for naturalization where [FR Doc. 95–4287 Filed 2–21–95; 8:45 am] Regulations the applicant will be naturalized in the BILLING CODE 1610±01±M AGENCY: General Accounting Office Philippines under section 405 of Personnel Appeals Board. IMMACT. ACTION: Interim rule; extension of The public was provided with a 45- comment period. DEPARTMENT OF JUSTICE day comment period which ended on July 12, 1993. No comments were SUMMARY: The General Accounting Immigration and Naturalization Service received during that period. Office Personnel Appeals Board is Accordingly, the fee for those 8 CFR Part 103 extending until March 15, 1995, the applications processed in the deadline for receipt of public comments [INS No. 1404F±92] Philippines and received by the Service on the interim procedural rule that it on or after June 28, 1993, will remain published in the Federal Register on RIN 1115±AC34 $120.00. November 16, 1994 (59 FR 59103). Fee for Application for Naturalization Regulatory Flexibility Act DATES: Comments on the interim rule Under Section 405 of the Immigration must be received by the Board on or In accordance with the Regulatory Act of 1990; Form N±400 before March 15, 1995. Flexibility Act, 5 U.S.C. 605(b), the Commissioner of the Immigration and ADDRESSES: Comments should be AGENCY: Immigration and Naturalization Naturalization Service certifies that this addressed to: Patricia Reardon, Clerk of Service, Justice. rule will not have a significant adverse the Board, General Accounting Office ACTION: Final rule. Personnel Appeals Board, Suite 830, economic impact on a substantial number of small entities. This rule Union Center Plaza II, 441 G Street, SUMMARY: This rule adopts without NW., Washington, DC 20548. change, an interim rule published in the merely adopts without change, an interim rule which has been in effect FOR FURTHER INFORMATION CONTACT: Federal Register on May 27, 1993, by since June 28, 1993. Barbara Lipsky, Attorney, Personnel the Immigration and Naturalization Appeals Board, 202–512–6137. Service (the Service), which amended Executive Order 12866 SUPPLEMENTARY INFORMATION: On the existing fee schedule. The fee This regulation is not considered by November 16, 1994, the General schedule was amended to recover the the Department of Justice, Immigration Accounting Office Personnel Appeals cost of providing special services under and Naturalization Service, to be a Board published interim procedural section 405 of the Immigration Act of ‘‘significant regulatory action’’ under regulations in the Federal Register (59 1990 (IMMACT), which allows for the Executive Order 12866, section 3(f), FR 59103) and requested public naturalization of certain natives of the Regulatory Planning and Review, and comments on those regulations. The Philippines, based upon qualifying the Office of Management and Budget interim regulations provide procedures active duty military service during has waived its review process under for the receipt and adjudication of World War II, who would not otherwise section 6(a)(3)(A). appeals filed by employees of the be eligible for naturalization, and Architect of the Capitol alleging section 113 of the Departments of Executive Order 12612 discrimination on the basis of race, Commerce, State, Justice, and Related The regulation proposed herein will color, sex, national origin, religion, age, Agencies Appropriations Act of 1993, not have substantial direct effects on the or disability. The interim regulations which permits the interview and States, on the relationship between the also include a few conforming naturalization of these persons in the national government and the States, or amendments to the procedures Philippines. The fee for naturalization on the distribution of power and governing appeals filed by employees of in those cases was raised to recover the responsibilities among the various the General Accounting Office, and a cost of providing those special services levels of government. Therefore, in change to the procedures for obtaining and benefits. accordance with Executive Order 12612, judicial review of Board decisions EFFECTIVE DATE: February 22, 1995. it is determined that this rule does not 9774 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations have sufficient federalism implications versions of the Form I–589 will not be Executive Order 12866 to warrant the preparation of a accepted after March 24, 1995. Federalism Assessment. This rule is not considered by the DATES: This rule is effective February Department of Justice, Immigration and Executive Order 12606 22, 1995. Applications submitted on the Naturalization Service, to be a The Commissioner of Immigration prior versions of the Form I–589 will ‘‘significant regulatory action’’ under and Naturalization Service certifies that not be accepted after March 24, 1995. Executive Order 12866, section 3(f), she has assessed this rule in light of the FOR FURTHER INFORMATION CONTACT: Regulatory Planning and Review, and criteria in Executive Order 12606 and Christine Davidson, Senior Policy the Office of Management and Budget has determined that this regulation will Analyst, Office of International Affairs, has waived its review process under not have an impact on family well- Immigration and Naturalization Service, section 6(a)(3)(A). being. 425 ‘‘I’’ Street NW., Washington, DC The information collection 20536, Attn: ULLICO, Third Floor, Executive Order 12612 requirement contained in this rule has Telephone: (202) 633–4389. The regulation proposed herein will been cleared by the Office of SUPPLEMENTARY INFORMATION: not have substantial direct effects on the Management and Budget under the On States, on the relationship between the provisions of the Paperwork Reduction November 4, 1994, a notice of revision national Government and the States, or Act. The clearance number for this of the Form I–589 was published in the collection is contained in 8 CFR 299.5, Federal Register at 59 FR 55289. On on the distribution of power and Display of Control Numbers. November 28, 1994, the revised Form I– responsibilities among the various 589 was approved by the Office of levels of government. Therefore, in List of Subjects in 8 CFR Part 103 Management and Budget (OMB) for use accordance with Executive Order 12612, Administrative practices and by the Service under the provisions of it is determined that this rule does not procedures, Authority delegations the Paperwork Reduction Act. This rule have sufficient Federalism implications (Government agencies), Freedom of amends 8 CFR 299.1 by updating the to warrant the preparation of a Information, Privacy, Reporting and entry for the Form I–589 to reflect the Federalism Assessment. current title and edition date (November recordkeeping requirements, Surety Executive Order 12606 bonds, Fees, Forms. 16, 1994). Accordingly, the interim rule The Form I–589 must be submitted The Commissioner of the Immigration amending 8 CFR part 103 which was when an individual who is present in and Naturalization Service certifies that published in the Federal Register on the United States applies for asylum and she has assessed this rule in light of the May 27, 1993 at 58 FR 30698–30699 is for withholding of deportation. criteria in Executive Order 12606 and adopted as a final rule without change. Applications submitted using a prior has determined that this regulation will version of the November 16, 1994, Form Dated: February 9, 1995. not have an impact on family well- I–589 will no longer be accepted after being. Doris Meissner, March 24, 1995, and the application Commissioner, Immigration and will be returned by the Service. After List of Subjects in 8 CFR Part 299 Naturalization Service. March 24, 1995, the 150-day period after [FR Doc. 95–4258 Filed 2–21–95; 8:45 am] which the applicant may file an Immigration, Reporting and BILLING CODE 4410±10±M application for employment recordkeeping requirements. authorization in accordance with the Accordingly, part 299 of chapter I of regulations will not commence if the 8 CFR Part 299 title 8 of the Code of Federal applicant submits a version of Form I– Regulations, is amended as follows: [INS No. 1651N±95] 589 with a revision date prior to November 16, 1994. PART 299ÐIMMIGRATION FORMS RIN 1115±AD64 The deadline for use of the prior version of the Form I–589 is, in the view 1. The authority citation for part 299 Form I±589; Request for Asylum and of the INS, a rule of agency procedure continues to read as follows: Withholding of Deportation in the or practice. Therefore, it is not subject United States: Establishment of Authority: 8 U.S.C. 1101, 1103; 8 CFR part to the notice and comment requirements 2. Compliance Date of 5 U.S.C. § 553. The INS publishes this AGENCY: Immigration and Naturalization rule of procedure or practice in the 2. Section 299.1 is amended by Service, Justice. Federal Register for the guidance of the revising the entry for ‘‘Form I–589’’ to public as required by 5 U.S.C. § 552. read as follows: ACTION: Final rule. Regulatory Flexibility Act § 299.1 Prescribed forms. SUMMARY: This rule amends the Immigration and Naturalization The Commissioner of the Immigration * * * * * Service’s (Service) regulations by and Naturalization Service, in I–589 11–16–94 Application for updating the listing of forms currently accordance with 5 U.S.C. 605(b), has Asylum and for Withholding of in use by the Service to reflect the reviewed this regulation and by Deportation approving it certifies that this rule does current edition date (November 16, * * * * * 1994) and title of the Form I–589, not have a significant economic impact Dated: February 14, 1995. Application for Asylum and for on a substantial number of small Withholding of Deportation. This entities. This rule is primarily Doris Meissner, update is necessary to ensure that only administrative in nature and merely Commissioner, Immigration and the current edition of the Form I–589 updates the existing forms listings Naturalization Service. listed in the regulations is used. currently contained in Title 8 of the [FR Doc. 95–4257 Filed 2–21–95; 8:45 am] Applications submitted on prior Code of Federal Regulations. BILLING CODE 4410±10±M Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9775 DEPARTMENT OF ENERGY texts of formal documents issued by the pipeline would include the fields only Commission. CIPS is available at no if the pipeline chooses to do so or its Federal Energy Regulatory charge to the user and may be accessed tariff requires it to include the Commission using a personal computer with a information. The Commission, however, modem by dialing (202) 208–1397. To concluded that the fields should be 18 CFR Part 284 access CIPS, set your communications mandatory, because the Commission [Docket No. RM93±4±007; Order No. 563± software to 19200, 14400, 12000, 9600, needed maximum rate data for all E] 7200, 4800, 2400, 1200 or 300bps, full releases from all pipelines. duplex, no parity, 8 data bits, and 1 stop The Working Group requests Standards for Electronic Bulletin bit. The full text of this document will clarification, contending that these Boards Required Under Part 284 of the be available on CIPS for 60 days from fields should be designated conditional, Commission's Regulations the date of issuance in ASCII and rather than mandatory, fields. A WordPerfect 5.1 format. After 60 days mandatory designation would mean that Issued February 15, 1995. the document will be archived, but still data must be included in both of these AGENCY: Federal Energy Regulatory accessible. The complete text on fields for every release. The Working Commission. diskette in WordPerfect format may also Group argues that if a release is a ACTION: Final rule; order granting be purchased from the Commission’s reservation rate release, there is no need clarification and extension of time. copy contractor, La Dorn Systems to include the maximum volumetric Corporation, also located in Room 3104, rate, and vice versa.3 The Working SUMMARY: In response to a request for 941 North Capitol Street, NE, Group contends, therefore, that the clarification submitted by the Electronic Washington DC 20426. maximum rate fields should be made Bulletin Board Working Group, the conditional on the type of release Federal Energy Regulatory Commission Order Granting Clarification and involved, so that only the maximum rate is issuing an order making changes to Extension of Time related to the release would be the fields that report the maximum Issued February 15, 1995. provided; e.g., the maximum reservation natural gas pipeline tariff rate related to Before Commissioners: Elizabeth Anne rate for a reservation rate release and the released capacity. The order clarifies Moler, Chair; Vicky A. Bailey, James J. maximum volumetric rate for a that pipelines must report only the Hoecker, William L. Massey, and Donald F. volumetric release.4 The Working Group maximum tariff rate related to the type Santa, Jr. states that changing the field of release involved; e.g., the maximum On January 24, 1995, the Electronic designation to conditional would not reservation rate for a reservation rate Bulletin Board (EBB) Working Group disturb the Commission requirement release and the maximum volumetric filed a request for clarification of the that pipelines provide the maximum rate for a volumetric release. The order Commission’s December 29, 1994 order rate data for all releases, but would only also grants an extension of time for 1 requiring pipelines to include serve to ensure that unnecessary pipelines to implement the new fields. maximum rate fields as part of the information would not be provided. The DATES: New fields must be implemented capacity release data sets adopted by the Working Group has included revised on or before March 17, 1995. Commission in Order No. 563.2 The data sets to implement this change and ADDRESSES: Federal Energy Regulatory Working Group further requests an stated that the datasets would be Commission, 825 North Capitol Street, extension of time for compliance until provided to the Gas*Flow group for NE., Washington, DC 20426. the later of 30 days after the incorporation into the EDI FOR FURTHER INFORMATION CONTACT: Commission issues a clarification order implementation guide. or the Gas*Flow implementation guide The Commission will accept the Michael Goldenberg, Office of the is available in the Commission’s public proposed modification to make the General Counsel, Federal Energy reference room. The Commission will fields conditional as described in the Regulatory Commission, 825 North grant the requested clarification and data sets. The intent of the December 29, Capitol Street, NE., Washington, DC will extend the time for compliance 1994 order was to require pipelines to 20426, (202) 208–2294. until 30 days from the date of this order. supply data on the maximum rate for Marvin Rosenberg, Office of Economic In the December 29, 1994 order, the each release, but the Commission did Policy, Federal Energy Regulatory Commission accepted a proposal by the not intend that pipelines report a Commission, 825 North Capitol Working Group to include the maximum rate that was unrelated to the Street, NE., Washington, D.C. 20426, maximum tariff rate for capacity posted type of release involved; e.g., a (202) 208–1283 for release. The Commission required maximum reservation rate for a Brooks Carter, Office of Pipeline and the inclusion in the Award Data Set of volumetric release. Such information Producer Regulation, Federal Energy the maximum reservation rate and Regulatory Commission, 825 North maximum volumetric rate for released 3 If a release is a blended release comprised of Capitol Street, NE., Washington, D.C. capacity. The Working Group had both a reservation rate and volumetric component, 20426, (202) 208–0292 proposed that the fields should be the Working Group states that data would have to SUPPLEMENTARY INFORMATION: In considered optional, meaning that a be supplied for both fields. 4 In the argot of the data sets, they propose that addition to publishing the full text of each maximum rate field would be made this document in the Federal Register, 1 Standards For Electronic Bulletin Boards conditional on the response to the Rate From Type the Commission also provides all Required Under Part 284 of the Commission’s Code, which is a mandatory field that describes interested persons an opportunity to Regulations, Order No. 563–D, 60 FR 1718 (Jan. 5, whether the release is a (1) reservation rate, (2) 1995), 69 FERC ¶ 61,418 (Dec. 29, 1994). volumetric, or (3) blended release. If the Rate Form inspect or copy the contents of this 2 Standards For Electronic Bulletin Boards Type Code is 1 indicating a reservation rate release, document during normal business hours Required Under Part 284 of the Commission’s only the maximum reservation rate must be in Room 3104, 941 North Capitol Street Regulations, Order No. 563, 59 FR 516 (Jan. 5, provided. If the Rate Form Type Code is 2 NE, Washington DC 20426. 1994), III FERC Stats. & Regs. Preambles ¶ 30,988 indicating a volumetric release, only the maximum (Dec. 23, 1993), order on reh’g, Order No. 563–A, volumetric rate must be provided. If the Rate Form The Commission Issuance Posting 59 FR 23624 (May 6, 1994), III FERC Stats. & Regs. Type Code is 3 indicating a blended release, both System (CIPS), an electronic bulletin Preambles ¶ 30,994 (May 2, 1994), reh’g denied, the maximum reservation rate and maximum board service, provides access to the Order No. 563–B, 68 FERC ¶ 61,002 (1994). volumetric rate must be provided. 9776 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations would be superfluous. Since the Commission’s Public Reference and 1995 (60 FR 23). The final regulation Working Group’s proposal would Files Maintenance Branch. provides an anti-abuse rule authorizing require pipelines to provide the relevant The Commission orders: (A) The the Commissioner of Internal Revenue, maximum rate for all releases, the Commission will grant the requested in certain circumstances, to recast a Commission will accept it. clarification and accept the conditional transaction involving the use of a fields for maximum reservation rate and The Working Group further requests partnership. maximum volumetric rate as proposed that the Commission provide an EFFECTIVE DATE: January 3, 1995. in the January 24, 1995 filing. extension of time to comply with this (B) Pipelines must implement these FOR FURTHER INFORMATION CONTACT: D. requirement until the later of 30 days new fields within 30 days of the date of Lindsay Russell or Mary A. Berman at after the Commission issues a this order. 202–622–3050 (not a toll-free number). clarification order or the Gas*Flow implementation guide is available in the By the Commission. SUPPLEMENTARY INFORMATION: Commission’s public reference room. Lois D. Cashell, Background The Commission will grant an extension Secretary. of time until 30 days after the issuance [FR Doc. 95–4233 Filed 2–21–95; 8:45 am] The final regulation that is the subject of these corrections is under section 701 of this order. BILLING CODE 6717±01±P of the Internal Revenue Code. Unlike the Working Group’s previous filing, a proposed EDI implementation Need for Correction DEPARTMENT OF THE TREASURY guide was not provided along with the As published, TD 8588 inadvertently proposed change to conditional fields. Internal Revenue Service ommitted language and contains The Commission needs the information typographical errors which may prove on maximum release rates as promptly 26 CFR Part 1 to be misleading and are in need of as possible and, given the minimum clarification. changes necessary to implement the [TD 8588] change, the Commission concludes that, RIN 1545±AS70 Correction of Publication if Gas*Flow has not already made the Accordingly, the publication of the necessary changes, it can make them Subchapter KÐAnti-Abuse Rule; final regulation which is the subject of promptly. Thus, a 30 day delay is Correction FR Doc. 94–32331, is corrected as adequate to implement the proposed AGENCY: Internal Revenue Service (IRS), follows: changes. Once the implementation Treasury. § 1.701±2 [Corrected] guide is finalized, it must be filed with ACTION: Correction to final regulation. the Commission. The data sets and EDI 1. In the list below, for each Example implementation guide will then be SUMMARY: This document contains in § 1.701–2, paragraph (d), indicated in incorporated into the ‘‘Standardized corrections to the final regulation (TD the left column, the language in the Data Sets and Communication 8588) which was published in the middle column is removed, and the Protocols’’ which is available at the Federal Register for Tuesday, January 3, language in the right column is added. § 1.701±2(d) Remove Add Example 3, heading, p. 28, 3rd column, 2nd line ...... limitation, ...... limitation; Example 7(i), p. 29, 3rd column, 4th line ...... $100 ...... $100x Example 7(i), p. 29, 3rd column, 6th line ...... $6 ...... $6x Example 7(i), p. 29, 3rd column, 10th line ...... $50 ...... $50x Example 9(i), p. 30, 3rd column, 4th line ...... $9,000, $990, and $10 ...... $9,000x, $900x, and $10x Example 9(i), p. 30, 3rd column, 8th line ...... $10,000 ...... $10,000x Example 9(i), p. 30, 3rd column, 13th line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 14th line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 14th line ...... $8,100 ...... $8,100x Example 9(i), p. 30, 3rd column, 14th line ...... $891 ...... $891x Example 9(i), p. 30, 3rd column, 15th line ...... $9 ...... $9x Example 9(i), p. 30, 3rd column, 16th line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 22nd line ...... $1,000 and $9,000 ...... $1,000x and $9,000x Example 9(i), p. 30, 3rd column, 24th line ...... $19,000 ...... $19,000x Example 9(i), p. 30, 3rd column, 25th line ...... $10,000 ...... $10,000x Example 9(i), p. 30, 3rd column, 26th line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 27th line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 30th line ...... $9,000, $990 ...... $9,000x, $990x Example 9(i), p. 30, 3rd column, 31st line ...... $10 ...... $10x Example 9(i), p. 30, 3rd column, 32nd line ...... $8,000 ...... $8,000x Example 9(i), p. 30, 3rd column, 35th line ...... $1,881 and $19 ...... $1,881x and $19x Example 9(i), p. 30, 3rd column, 36th line ...... $9,801 and $99 ...... $9,801x and $99x Example 9(i), p. 30, 3rd column, 40th line ...... $1,000 ...... $1,000x Example 9(i), p. 30, 3rd column, 41st line ...... $9,000 ...... $9,000x Example 9(i), p. 30, 3rd column, 41st line ...... $8,910 ...... $8,910x Example 9(i), p. 30, 3rd column, 41st line ...... $90 ...... $90x Example 9(i), p. 30, 3rd column, 43rd line ...... $891 ...... $891x Example 9(i), p. 30, 3rd column, 44th line ...... $9 ...... $9x Example 10(i), p. 31, 1st column, 2nd line ...... $100 ...... $100x Example 10(i), p. 31, 1st column, 2nd line ...... $60 ...... $60x Example 10(i), p. 31, 1st column, 10th line ...... $30 ...... $30x Example 10(i), p. 31, 1st column, 28th line ...... $100 ...... $100x Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9777 § 1.701±2(d) Remove Add Example 10(i), p. 31, 1st column, 32nd line ...... $40 ...... $40x Example 10(ii), p. 31, 1st column, 3rd line ...... $100 ...... $100x Example 10(ii), p, 31, 1st column, 5th line ...... $60 ...... $60x Example 10(ii), p. 31, 1st column, 6th line ...... $40 ...... $40x Example 10(ii), p. 31, 1st column, 9th line ...... $10 ...... $10x Example 10(ii), p. 31, 1st column, 11th line ...... $30 ...... $30x Example 10(ii), p. 31, 1st column, 13th line ...... $20 ...... $20x Example 11(i), p. 31, 2nd column, 7th line ...... $100 ...... $100x Example 11(i), p. 31, 2nd column, 13th line ...... $100 ...... $100x Example 11(i), p. 31, 2nd column, 15th line ...... $20 ...... $20x Example 11(i), p. 31, 2nd column, 17th line ...... $100 ...... $100x Example 11(i), p. 31, 2nd column, 31st line ...... that (i) A's ...... that A's Example 11(i), p. 31, 2nd column, 34th line ...... and (ii) because ...... and because Example 11(i), p. 31, 2nd column, 38th line ...... $80 ...... $80x Example 12(i), p. 31, 3rd column, 7th line ...... $100 ...... $100x Example 12(i), p. 31, 3rd column, 9th line ...... $60 ...... $60x Example 12(i), p. 31, 3rd column, 9th line ...... $40 ...... $40x Example 12(i), p. 31, 3rd column, 12th line ...... $40 ...... $40x Example 12(i), p. 31, 3rd column, 15th line ...... $100 ...... $100x Example 12(i), p. 31, 3rd column, 20th line ...... $50 ...... $50x Example 12(i), p. 31, 3rd column, 21st line ...... $50 ...... $50x Example 12(i), p. 31, 3rd column, 22nd line ...... $10 ...... $10x Example 12(i), p. 31, 3rd column, 23rd line ...... $60 ...... $60x Example 12(i), p. 31, 3rd column, 23rd line ...... $50 ...... $50x Example 12(i), p. 31, 3rd column, 24th line ...... $10 ...... $10x Example 12(i), p. 31, 3rd column, 25th line ...... $50 ...... $50x Example 12(i), p. 31, 3rd column, 25th line ...... $40 ...... $40x Example 13(i), p. 32, 2nd column, 3rd line ...... $95 ...... $95x Example 13(i), p. 32, 2nd column, 4th line ...... $5 ...... $5x Example 13(i), p. 32, 2nd column, 10th line ...... $100 ...... $100x Example 13(i), p. 32, 2nd column, 16th line ...... $5 ...... $5x Example 13(i), p. 32, 2nd column, 19th line ...... $100 ...... $100x Example 13(i), p. 32, 2nd column, 22nd line ...... $50 ...... $50x Example 13(i), p. 32, 2nd column, 24th line ...... $5 ...... $5x Example 13(i), p. 32, 2nd column, 24th line ...... $45 ...... $45x 2. On page 33, column 1, § 1.701–2, reflect the Deputy Attorney General’s For the reasons set forth in the paragraph (f), paragraph (ii) of Example wide discretion in delegating certain preamble, Title 28, Chapter I, Part 0 of 2, line 20, the language ‘‘corporation Z personnel authorities. the Code of Federal Regulations is stock, and the partners must’’ is EFFECTIVE DATE: February 22, 1995. amended as follows: corrected to read ‘‘Corporation Z stock, and the partners must’’. FOR FURTHER INFORMATION CONTACT: PART 0ÐORGANIZATION OF THE Dale D. Goode, Page Newton, Senior Attorney Advisor, DEPARTMENT OF JUSTICE Federal Register Liaison Ass’t Chief Counsel Legal Counsel’s Office, Executive Office 1. The authority citation for Part 0 (Corporate). for United States Attorneys, Department continues to read as follows: [FR Doc. 95–3769 Filed 2–21–95; 8:45 am] of Justice, Room 1644, 10th and Constitution Avenue, NW., Washington, Authority: 5 U.S.C. 301; 28 U.S.C. 509, BILLING CODE 4830±01±U 510, 515–519. DC 20530; telephone (202) 514–5340. 2. Section 0.15 is amended by revising SUPPLEMENTARY INFORMATION: This order paragraphs (b)(1)(v), (c), and (e) to read DEPARTMENT OF JUSTICE is a matter of internal department as follows: management. In accordance with 5 28 CFR Part 0 U.S.C. 605(b), the Attorney General § 0.15 Deputy Attorney General. [AG Order No. 1949±95] certifies that this rule will not have a * * * * * significant economic impact on a (b) * * * Redelegation of Personnel Authority substantial number of small entities. It (1) * * * does not have Federalism implications (v) The appointment, employment, AGENCY: Department of Justice. warranting the preparation of a separation, and general administration ACTION: Final rule. Federalism assessment in accordance of Assistant United States Attorneys and SUMMARY: This rule amends Department with section 6 of Executive Order other attorneys to assist United States regulations on personnel authorities 12612. This rule was not reviewed by Attorneys when the public interest so with respect to Assistant United States the Office of Management and Budget requires and fixing their salaries. Attorneys to specifically allow the pursuant to Executive Order 12866. * * * * * Deputy Attorney General to redelegate List of Subjects in 28 CFR Part 0 (c) The Deputy Attorney General may the authority to take final actions with redelegate the authority provided in respect to their appointment, Authority delegations (Government paragraphs (b)(1) (i), (ii), (iii), and (v) of employment, separation, and general agencies), Government employees, this section to take final action in administration. The rule is promulgated Organization and functions matters pertaining to the employment, to clarify the current regulation and (Government agencies), Whistleblowing. separation, and general administration 9778 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations of attorneys and law students in grades Montel Livingston, SIP Manager, Air regulation. In this rulemaking, EPA is GS–15 and below, to appoint special Programs Branch (AT–082), EPA, approving the following sections: # attorneys and special assistants to the Docket WA24–1–6519, 1200 Sixth 100 Name of Authority Attorney General pursuant to 28 U.S.C. Avenue, Seattle, Washington 98101. 101 Short Title 515(b), to appoint Assistant United Documents which are incorporated by 102 Policy States Trustees and fix their reference are available for public 103 Duties and Powers compensation, and to take final action 104.1 Adoption of State Laws and Rules inspection at the Air and Radiation 105 Separability in matters pertaining to the Docket and Information Center, EPA, appointment, employment, separation, 106 Public Records 401 M Street, SW, Washington, D.C. 110 Investigation and Studies and general administration of Assistant 20460. Copies of material submitted 111 Interference or Obstruction United States Attorneys and other to EPA may be examined during 112 False and Misleading Oral Statement— attorneys to assist United States normal business hours at the Unlawful Reproduction or Alteration of Attorneys when the public interest so following locations: EPA, Region 10, Documents requires and to fix their salaries. Air Programs Branch, 1200 Sixth 113 Service of Notice * * * * * 114 Confidential Information Avenue (AT–082), Seattle, 120 Hearings (e) The officials to whom the Deputy Washington 98101, and Washington 121 Orders Attorney General delegates authority Department of Ecology, PO Box 122 Appeals from Orders or Violations under paragraph (c) of this section and 47600, Olympia, Washington 98504. 123 Status of Orders on Appeal any of the officials who may be 124 Display of Orders, Certificates, and otherwise authorized by the Deputy FOR FURTHER INFORMATION CONTACT: other Notices—Removal or Mutilation Attorney General to perform any other Stephanie Cooper, Air Programs Branch Prohibited attorney personnel duties may (AT–082), EPA, Region 10, Seattle, 130 Citations—Notices Washington 98101, (206) 553–6917. 131 Violation—Notices redelegate those authorities and duties. 132 Criminal Penalty * * * * * SUPPLEMENTARY INFORMATION 133 Civil Penalty Dated: February 9, 1995. 134 Restraining Orders—Injunctions I. Background Janet Reno, 135 Additional Enforcement—Compliance Attorney General. On January 10, 1994, the Director of Schedules 140 Reporting by Government Agencies [FR Doc. 95–4226 Filed 2–21–95; 8:45 am] WDOE submitted to EPA Region 10 145 Motor Vehicle Owner Responsibility BILLING CODE 4410±01±M revised and updated regulations for 150 Pollutant Disclosure—Reporting by Air NWAPA affecting Island, Skagit, and Contaminant Sources Whatcom Counties. NWAPA and WDOE 180 Sampling and Analytical Methods/ ENVIRONMENTAL PROTECTION held joint public hearings on April 14, References 200 Definitions AGENCY 1993 and September 8, 1993, to receive public comment on the revisions to 300 Notice of Construction when Required NWAPA’s rules and the submittal to 301 Information Required for Notice of 40 CFR Part 52 Construction and Application for EPA as a revision to the Washington Approval, Public Notice, Public Hearing [WA24±1±6519a; FRL±5143±7] SIP. 302 Issuance of Approval or Order Approval and Promulgation of These regulations cover such subjects 303 Notice of Completion—Notice of Violation Implementation Plans; Washington as the adoption of State laws and rules, criminal and civil penalties, notice of 310 Approval to Operate Required 320 Registration Required AGENCY: Environmental Protection construction procedures, registration 321 General Requirements for Registration Agency. classes, volatile organic compounds 322 Exemptions from Registration ACTION: Direct final rule. (VOC) controls, and others (please see 323 Classes of Registration Description of Plan Revisions, below). 324 Fees (except for section 324.121) SUMMARY: Environmental Protection NWAPA requested that the WDOE 325 Transfer Agency (EPA) approves certain submit these additions for incorporation 340 Report of Breakdown and Upset regulations of the Northwest Air into the Washington State SIP in an 341 Schedule Report of Shutdown or Pollution Authority (NWAPA) for the effort to prepare NWAPA for Startup control of air pollution in Island, Skagit, implementation of the operating permit 342 Operation and Maintenance and Whatcom Counties, Washington, as 360 Testing and Sampling program. EPA granted interim approval 365 Monitoring revisions to the Washington State to NWAPA’s operating permit program 366 Instrument Calibration Implementation Plan (SIP). These effective December 9, 1994. See 59 FR 400 Ambient Air Standards—Forward regulations were submitted by the 55813 (November 9, 1994). 401 Suspended Particulate Standards (PM– Director of the Washington State 10) Department of Ecology (WDOE) on II. Description of Plan Revisions 410 Sulfur Oxide Standards January 10, 1994. In accordance with 420 Carbon Monoxide Standards The NWAPA amendments submitted 421 Nitrogen Oxide Standards Washington statutes, NWAPA rules by WDOE on January 12, 1994 for must be at least as stringent as the 424 Ozone Standard inclusion into the Washington SIP are 450 Emission Standards—Forward WDOE statewide rules. local air pollution regulations which 451 Emission of Air Contaminant—Visual DATES: This final rule will be effective WDOE has certified are at least as Standard on April 24, 1995 unless adverse or stringent as the statewide rules of the 452 Motor Vehicle Visual Standards (except critical comments are received by March WDOE. This rulemaking action for section 452.5.) 24, 1995. If the effective date is delayed, approves portions of NWAPA’s 455 Emission of Particulate Matter timely notice will be published in the 458 Incinerators—Wood Waste Burners regulations related to the control of 460 Weight/Heat Rate Standard—Emission Federal Register. criteria pollutants under section 110 of of Sulfur Compounds ADDRESSES: Written comments should the Act. EPA is taking no action on 462 Emission of Sulfur Compounds be addressed to: certain other portions of NWAPA’s 466 Portland Cement Plants Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9779 510 Incinerator Burning leaks from gasoline transport tanks and certify that it does not have a significant 520 Sulfur Compounds in Fuel vapor control systems. impact on any small entities affected. 550 Preventing Particulate Matter from Finally, EPA is taking no action on Moreover, due to the nature of the Becoming Airborne the following sections which were Federal-State relationship under the 560 Storage of Organic Liquid 580 Volatile Organic Compound Control included in the January 10, 1994 CAA, preparation of a regulatory submittal but do not relate to the control flexibility analysis would constitute The following discussion highlights of criteria air pollutants under section Federal inquiry into the economic elements of NWAPA’s rules that EPA is 110 of the Act. reasonableness of State action. The CAA approving: Section 104.1—Adoption of forbids EPA to base its actions State Laws and Rules, allows NWAPA 104.2 Adoption of Federal rules 312 Environmental Policy Guidelines concerning SIPs on such grounds. to position itself as the primary 324.121 Fees (operating permits) Union Electric Co. v. U.S.E.P.A., 427 enforcement agency for the three 326 Operating Permits U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. counties under its jurisdiction. Sections 350 Variances 7410(a)(2). 132 and 133—Criminal Penalty and 402 Particulate Fallout Standards The EPA is publishing this action Civil Penalty, respectively, reflect 426 Hydrocarbons without prior proposal because the changes in Washington’s Clean Air Act. 428 Hazardous Air Pollutants Agency views this as a noncontroversial 452.5 Motor vehicle standards for odor Maximum fines have increased from amendment and anticipates no adverse $1,000 to $10,000, and civil penalties 465 Sulfuric Acid Plants 470 Fluorides comments. However, in a separate have been adjusted based on the 600 to 603 Objectives and Planning Criteria document in this Federal Register consumer price index. Timely submittal publication, the EPA is proposing to of information on emissions is the In its January 10, 1994 submission, approve the SIP revision should adverse subject of Section 150, which states that NWAPA did not submit its rules or critical comments be filed. This if industries do not comply in a timely regarding open burning (Section 501— action will be effective April 24, 1995 fashion, fees will be based on potential Outdoor Burning; Section 504—Outdoor unless, by March 24, 1995, adverse or rather than actual emissions. Sections Fires—Grass Seed Fields; Section 511— critical comments are received. 300 through 310 establish a Refuse Burning Equipment—Time If the EPA receives such comments, preconstruction review program which Restriction) and for concealment and this action will be withdrawn before the requires the submittal of a ‘‘Notice of masking (Section 540—Emission of Air effective date by publishing a Construction and Application for Contaminant—Concealment and subsequent document that will Approval’’ and receipt of an ‘‘Order of Masking) for inclusion in the SIP. withdraw the final action. All public Approval’’ prior to the construction or Therefore, the statewide rules for open comments received will be addressed in modification of most air contaminant burning and concealment and masking a subsequent final rule based on this sources. An ‘‘Order of Approval’’ will be apply within NWAPA’s jurisdiction. action serving as a proposed rule. The issued after public notice and EPA will not institute a second opportunity for comment, if applicable, III. Summary of EPA Action comment period on this action. Any provided the new or modified source In this action, EPA approves the parties interested in commenting on this complies with all applicable State and following sections of the NWAPA rules action should do so at this time. If no Federal requirements. Note, however, as revisions to the Washington SIP: 100, such comments are received, the public that the NWAPA regulations do not 101, 102, 103, 104.1, 105, 106, 110, 111, is advised that this action will be contain any provisions to implement the 112, 113, 114, 120, 121, 122, 123, 124, effective April 24, 1995. major source permitting requirements of 130, 131, 132, 133, 134, 135, 140, 145, The EPA has reviewed this request for Title I, Part C, and Part D of the Act. 150, 180, 200, 300, 301, 302, 303, 310, revision of the Federally-approved SIP There are currently no nonattainment 320, 321, 322, 323, 324, 325, 340, 341, for conformance with the provisions of areas in NWAPA’s jurisdiction and the 342, 360, 365, 366, 400, 401, 410, 420, the 1990 Clean Air Act Amendments WDOE implements the Part C 421, 424, 450, 451, 452 (except for enacted on November 15, 1990. The ‘‘Prevention of Significant 452.5.), 455, 458, 460, 462, 466, 510, EPA has determined that this action Deterioration’’ permit program under a 520, 550, 560, and 580. conforms with those requirements. delegation from EPA. Sections 320 Nothing in this action should be through 325 require the registration of IV. Administrative Review construed as permitting or allowing or air contaminant sources, and impose an Under the Regulatory Flexibility Act, establishing a precedent for any future annual registration fee and other fees to 5 U.S.C. 600 et seq., EPA must prepare request for revision to any SIP. Each cover the costs of regulating sources. a regulatory flexibility analysis request for revision to the SIP shall be ‘‘Preventing Particulate Matter from assessing the impact of any proposed or considered separately in light of specific Becoming Airborne,’’ Section 550, aims final rule on small entities. 5 U.S.C. 603 technical, economic and environmental at preventing material from being and 604. Alternatively, EPA may certify factors and in relation to relevant deposited in public roadways that may that the rule will not have a significant statutory and regulatory requirements. result in fugitive dust problems. Volatile impact on a substantial number of small This action has been classified as a organic compounds (VOCs) are entities. Small entities include small Table 3 action by the Regional controlled by Section 580, which businesses, small not-for-profit Administrator under the procedures establishes BACT for all new VOC enterprises, and government entities published in the Federal Register on sources. This section covers petroleum with jurisdiction over populations of January 19, 1989 (54 FR 2214–2225), as refineries, high vapor pressure volatile less than 50,000. revised by an October 4, 1993 organic compound storage tanks, SIP approvals under section 110 and memorandum from Michael H. Shapiro, gasoline loading terminals, bulk subchapter I, Part D of the CAA do not Acting Assistant Administrator for Air gasoline plants, gasoline stations, create any new requirements, but and Radiation. The OMB has exempted cutback asphalt paving, petroleum simply approve requirements that the this regulatory action from E.O. 12866 refinery equipment leaks, high vapor State is already imposing. Therefore, review. pressure volatile organic compound because the Federal SIP-approval does Under section 307(b)(1) of the Clean storage in external floating roof tanks, not impose any new requirements, I Air Act, petitions for judicial review of 9780 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations this action must be filed in the United 560, and 580, effective on September 8, (59 FR 55605), EPA issued a proposed States Court of Appeals for the 1993. rule that gave notice that on its own appropriate circuit by April 24, 1995. [FR Doc. 95–3862 Filed 2–21–95; 8:45 am] initiative and under section 408(e) of Filing a petition for reconsideration by the Federal Food, Drug and Cosmetic BILLING CODE 6560±50±P the Administrator of this final rule does Act, 21 U.S.C. 346a(e), it proposed a not affect the finality of this rule for the time-limited tolerance for the residues purposes of judicial review nor does it 40 CFR Part 180 of carbofuran and its metabolites in or extend the time within which a petition on canola at 1.0 ppm. EPA proposed a for judicial review may be filed and [OPP±300366A; FRL±4925±1] tolerance because State registrations for shall not postpone the effectiveness of RIN 2070±AB78 the use of carbofuran on canola exist. such rule or action. This action may not However, because of EPA’s continuing be challenged later in proceedings to Pesticide Tolerances for 2,3-Dihydro- concern for the risk to birds posed by enforce its requirements. (See section 2,2-Dimethyl-7-Benzofuranyl-N- carbofuran use, the Agency is limiting 307(b)(2), 42 U.S.C. 7607(b)(2). Methylcarbamate the number of States in which granular carbofuran may be used on canola, and List of Subjects in 40 CFR Part 52 AGENCY: Environmental Protection may take regulatory action in the near Air pollution control, Carbon Agency (EPA). future to further restrict carbofuran use. monoxide, Hydrocarbons, Incorporation ACTION: Final rule. Additional registrations will not be by reference, Ozone, Volatile organic permitted until EPA has reached a SUMMARY: This document establishes a compounds. decision on whether the canola use time-limited tolerance for residues of poses unreasonable risks to birds and Note: Incorporation by reference of the the insecticide 2,3-dihydro-2,2- wildlife and whether additional Implementation Plan for the State of dimethyl-7-benzofuranyl-N- Washington was approved by the Director of restrictions are necessary. The Agency methylcarbamate (common name intends to conduct the necessary risk the Office of Federal Register on July 1, 1982. ‘‘carbofuran’’) and its metabolites in or Dated: January 9, 1995. and benefit assessments and anticipates on canola at 1.0 part per million (ppm) a decision before the 1996 use season. Chuck Clarke, with an expiration date of 2 years after There are three Special Local Need Regional Administrator. the beginning of the effective date of the registrations under section 24(c) of the rule. EPA is issuing this rule on its own Part 52, chapter I, title 40 of the Code Federal Insecticide, Fungicide, and initiative. of Federal Regulations is amended as Rodenticide Act, 7 U.S.C. 136v(c). follows: EFFECTIVE DATE: This regulation Registrations associated with this time- becomes effective February 22, 1995. 1. The authority citation for part 52 limited tolerance will be regionally ADDRESSES: continues to read as follows: Written objections, restricted to Idaho, Minnesota, Montana, identified by the document control North Dakota, and Washington. Authority: 42 U.S.C. 7401–7671q. number, [OPP-300366A], may be The use of granular carbofuran under submitted to: Hearing Clerk (1900), Subpart WWÐWashington this tolerance will be limited to the 1995 Environmental Protection Agency, Rm. growing season because additional 2. Section 52.2470 is amended by M3708, 401 M St., SW., Washington, DC residue data have to be submitted for adding paragraph (c) (50) to read as 20460. A copy of any objections and the Agency to make its determination follows: hearing requests filed with the Hearing that the tolerance will be protective of Clerk should be identified by the the public health. As discussed in the § 52.2470 Identification of plan. document control number and proposed rule, the reference dose is * * * * * submitted to: Public Response and exceeded for nonnursing infants and (c) * * * Program Resources Branch, Field children ages 1 to 6 if it is assumed that Operations Division (7506C), Office of all canola will contain tolerance level (50) By a letter dated December 29, Pesticide Programs, Environmental 1993, the Director of WDOE submitted residues. EPA believes this assumption Protection Agency, 401 M St., SW., overstates the risk. EPA has requested to the Regional Administrator of EPA a Washington, DC 20460. In person, bring revision to the Washington SIP updating additional data to confirm its view that copy of objections and hearing requests the risk estimate is overstated. The the regulations from the Northwest Air to: Rm. 1132, CM #2, 1921 Jefferson Pollution Authority. Interregional Research Project No. 4 (IR- Davis Hwy., Arlington, VA 22202. Fees 4) is currently conducting residue trials (i) Incorporation by reference. accompanying objections shall be in the U.S. and plans to submit a (A) The December 29, 1993 letter from labeled ‘‘Tolerance Petition Fees’’ and petition for a permanent tolerance in the the Director of the Washington State forwarded to: EPA Headquarters spring. EPA will not establish a Department of Ecology submitting the Accounting Operations Branch, OPP permanent tolerance until it has Northwest Air Pollution Authority (Tolerance Fees), P.O. Box 360277M, received and evaluated the residue data. Regulations as a revision to the Pittsburgh, PA 15251. Over 100 comments were received in Washington SIP. FOR FURTHER INFORMATION CONTACT: By response to the proposed rule. All were (B) Regulations of the Northwest Air mail: Dennis H. Edwards, Jr., Product in support of establishing the tolerance. Pollution Authority—sections 100, 101, Manager (PM) 19, Registration Division The data submitted on the proposal 102, 103, 104.1, 105, 106, 110, 111, 112, (7505C), Environmental Protection and other relevant material have been 113, 114, 120, 121, 122, 123, 124, 130, Agency, 401 M St., SW., Washington, evaluated and discussed in the 131, 132, 133, 134, 135, 140, 145, 150, DC 20460. Office location and telephone proposed rule. Based on the data and 180, 200, 300, 301, 302, 303, 310, 320, number: Rm. 207, 1921 Jefferson Davis information considered, the Agency 321, 322, 323, 324, 325, 340, 341, 342, Hwy., Arlington, VA 22202, (703)-305- concludes that the time-limited 360, 365, 366, 400, 401, 410, 420, 421, 6386. tolerance will protect the public health. 424, 450, 451, 452 (except for 452.5.), SUPPLEMENTARY INFORMATION: In the Therefore, the time-limited tolerance is 455, 458, 460, 462, 466, 510, 520, 550, Federal Register of November 8, 1994 established as set forth below. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9781 Any person adversely affected by this Pursuant to the terms of the Executive [FR Doc. 95–4303 Filed 2–16–95; 2:39 pm] regulation may, within 30 days after Order, EPA has determined that this BILLING CODE 6560±50±F publication of this document in the rule is not ‘‘significant’’ and is therefore Federal Register, file written objections not subject to OMB review. and/or request a hearing with the Pursuant to the requirements of the 40 CFR Part 180 Hearing Clerk, at the address given Regulatory Flexibility Act (Pub. L. 96- [OPP±300372A; FRL±4933±5] above (40 CFR 178.20). A copy of the 354, 94 Stat. 1164, 5 U.S.C. 601-612), objections and/or hearing requests filed the Administrator has determined that RIN 2070±AB78 with the Hearing Clerk should be regulations establishing new tolerances submitted to the OPP docket for this or raising tolerance levels or Acrylamide-Potassium Acrylate-Acrylic rulemaking. The objections submitted establishing exemptions from tolerance Acid Copolymer, Crosslinked; must specify the provisions of the requirements do not have a significant Tolerance Exemption regulation deemed objectionable and the economic impact on a substantial AGENCY: Environmental Protection grounds for the objections and the relief number of small entities. A certification Agency (EPA). sought (40 CFR 178.25). Each objection statement to this effect was published in must be accompanied by the fee the Federal Register of May 4, 1981 (46 ACTION: Final rule. prescribed by 40 CFR 180.33(i). If a FR 24950). SUMMARY: This document establishes an hearing is requested, the objections List of Subjects in 40 CFR Part 180 exemption from the requirement of a must include a statement of the factual tolerance for residues of acrylamide- issue(s) on which a hearing is requested, Environmental protection, potassium acrylate-acrylic acid the requestor’s contentions on such Administrative practice and procedure, copolymer, crosslinked (CAS Reg. No. issues, and a summary of any evidence Agricultural commodities, Pesticides 31212-13-2) when used as an inert relied upon by the objector (40 CFR and pests, Reporting and recordkeeping ingredient (carrier) in pesticide 178.27). A request for a hearing will be requirements. formulations applied to growing crops granted if the Administrator determines Dated: February 14, 1995. or to raw agricultural commodities after that the material submitted shows the harvest. Kelly Products, Inc., requested Stephen L. Johnson, following: There is a genuine and this rule. substantial issue of fact; there is a Director, Registration Division, Office of reasonable possibility that available Pesticide Programs. EFFECTIVE DATE: This regulation becomes effective February 22, 1995. evidence identified by the requestor Therefore, 40 CFR part 180 is ADDRESSES: Written objections, would, if established, resolve one or amended as follows: more of such issues in favor of the identified by the document control requestor, taking into account PART 180Ð[AMENDED] number, [OPP-300372A], may be uncontested claims or facts to the submitted to: Hearing Clerk (1900), contrary; and resolution of the factual 1. The authority citation for part 180 Environmental Protection Agency, Rm. issue(s) in the manner sought by the continues to read as follows: M3708, 401 M St., SW., Washington, DC requestor would be adequate to justify Authority: 21 U.S.C. 346a and 371. 20460. A copy of any objections and the action requested (40 CFR 178.32). hearing requests filed with the Hearing 2. In § 180.254, by adding new Clerk should be identified by the Under Executive Order 12866 (58 FR paragraph (c), to read as follows: 51735, Oct. 4, 1993), the Agency must document control number and determine whether the regulatory action § 180.254 2,3-Dihydro-2,2-dimethyl-7- submitted to: Public Response and is ‘‘significant’’ and therefore subject to benzofuranyl-N-methylcarbamate; Program Resources Branch, Field review by the Office of Management and tolerances for residues. Operations Division (7506C), Office of Pesticide Programs, Environmental Budget (OMB) and the requirements of * * * * * Protection Agency, 401 M St., SW., the Executive Order. Under section 3(f), (c) A time-limited tolerance, to expire the order defines a ‘‘significant Washington, DC 20460. In person, bring on February 22, 1997, with regional copy of objections and hearing request regulatory action’’ as an action that is registration, as defined in § 180.1(n), is likely to result in a rule (1) having an to: Rm. 1132, CM #2, 1921 Jefferson established for the combined residues of Davis Hwy., Arlington, VA 22202. Fees annual effect on the economy of $100 the insecticide carbofuran (2,3-dihydro- million or more, or adversely and accompanying objections shall be 2,2-dimethyl-7-benzofuranyl-N- labeled ‘‘Tolerance Petition Fees’’ and materially affecting a sector of the methylcarbamate), its carbamate economy, productivity, competition, forwarded to: EPA Headquarters metabolite, 2,3-dihydro-2,2-dimethyl-3- Accounting Operations Branch, OPP jobs, the environment, public health or hydroxy-7-benzofuranyl-N- safety, or State, local, or tribal (Tolerance Fees), P.O. Box 360277M, methylcarbamate, and its phenolic Pittsburgh, PA 15251. governments or communities (also metabolites 2,3-dihydro-2,2-dimethyl-7- FOR FURTHER INFORMATION CONTACT: By referred to as ‘‘economically benzofuranol, 2,3-dihydro-2,2-dimethyl- mail: Connie Welch, Registration significant’’); (2) creating serious 3-oxo-7-benzofuranol and 2,3-dihydro- Support Branch, Registration Division inconsistency or otherwise interfering 2,2-dimethyl-3,7-benzofurandiol in or (7505W), Office of Pesticide Programs, with an action taken or planned by on the following raw agricultural Environmental Protection Agency, 401 another agency; (3) materially altering commodity: the budgetary impacts of entitlement, M St., SW., Washington, DC 20460. grants, user fees, or loan programs or the Office location and telephone number: Commodity Parts per rights and obligations of recipients million Westfield Building North, 6th Fl., 2800 thereof; or (4) raising novel legal or Crystal Drive, Arlington, VA 22202, policy issues arising out of legal (703)-308-8320. Canola (of which no more than mandates, the President’s priorities, or SUPPLEMENTARY INFORMATION: In the 0.2 ppm is carbamate) ...... 1.0 the principles set forth in this Executive Federal Register of November 30, 1994 Order. (59 FR 61302), EPA issued a proposed 9782 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations rule that gave notice that Kelly Federal Register, file written objections with an action taken or planned by Products, Inc., P.O. Box 1508, 4132 and/or request a hearing with the another agency; (3) materially altering Highway 278, NW., Covington, GA Hearing Clerk, at the address given the budgetary impacts of entitlement, 30209, had submitted pesticide petition above (40 CFR 178.20). A copy of the grants, user fees, or loan programs or the (PP) 4E4348 to EPA requesting that the objections and/or hearing requests filed rights and obligations or recipients Administrator, pursuant to section with the Hearing Clerk should be thereof; or (4) raising novel legal or 408(e) of the Federal Food, Drug and submitted to the OPP docket for this policy issues arising out of legal Cosmetic Act (FFDCA), 21 U.S.C. rulemaking. The objections submitted mandates, the President’s priorities, or 346a(e), propose to amend 40 CFR must specify the provisions of the the principles set forth in this Executive 180.1001(c) by establishing an regulation deemed objectionable and the Order. exemption from the requirement of a grounds for the objections (40 CFR Pursuant to the terms of the Executive tolerance for residues of acrylamide 178.25). Each objection must be Order, EPA has determined that this potassium acrylate-acrylic acid accompanied by the fee prescribed by rule is not ‘‘significant’’ and is therefore copolymer, crosslinked (CAS Reg. No. 40 CFR 180.33(i). If a hearing is not subject to OMB review. 31212-13-2) when used as an inert requested, the objections must include a Pursuant to the requirements of the ingredient (carrier) in pesticide statement of the factual issue(s) on Regulatory Flexibility Act (Pub. L. 96- formulations applied to growing crops which a hearing is requested, the 354, 94 Stat. 1164, 5 U.S.C. 601-612), or to raw agricultural commodities after requestor’s contentions on such issues, the Administrator has determined that harvest. and a summary of any evidence relied regulations establishing new tolerances Inert ingredients are all ingredients upon by the objector (40 CFR 178.27). A or raising tolerance levels or that are not active ingredients as defined request for a hearing will be granted if establishing exemptions from tolerance in 40 CFR 153.125, and include, but are the Administrator determines that the requirements do not have a significant not limited to, the following types of material submitted shows the following: economic impact on a substantial ingredients (except when they have a There is a genuine and substantial issue number of small entities. A certification pesticidal efficacy of their own): of fact; there is a reasonable possibility statement to this effect was published in solvents such as alcohols and that available evidence identified by the the Federal Register of May 4, 1981 (46 hydrocarbons; surfactants such as requestor would, if established, resolve FR 24950). polyoxyethylene polymers and fatty one or more of such issues in favor of List of Subjects in 40 CFR Part 180 acids; carriers such as clay and the requestor, taking into account diatomaceous earth; thickeners such as uncontested claims or facts to the Environmental protection, carrageenan and modified cellulose; contrary; and resolution of the factual Administrative practice and procedure, wetting, spreading, and dispersing issue(s) in the manner sought by the Agricultural commodities, Pesticides agents; propellants in aerosol requestor would be adequate to justify and pests, Reporting and recordkeeping dispensers; microencapsulating agents; the action requested (40 CFR 178.32). requirements. and emulsifiers. The term ‘‘inert’’ is not Under Executive Order 12866 (58 FR Dated: February 1, 1995. intended to imply nontoxicity; the 51735, Oct. 4, 1993), the Agency must ingredient may or may not be determine whether the regulatory action Daniel M. Barolo, chemically active. is ‘‘significant’’ and therefore subject to Director, Office of Pesticide Programs. There were no comments or requests review by the Office of Management and Therefore, 40 CFR part 180 is for referral to an advisory committee Budget (OMB) and the requirements of amended as follows: received in response to the proposed the Executive Order. Under section 3(f), rule. the order defines a ‘‘significant PART 180Ð[AMENDED] The data submitted with the proposal regulatory action’’ as an action that is and other relevant material have been likely to result in a rule (1) having an 1. The authority citation for part 180 evaluated and discussed in the annual effect on the economy of $100 continues to read as follows: proposed rule. Based on the data and million or more, or adversely and Authority: 21 U.S.C. 346a and 371. information considered, the Agency materially affecting a sector of the 2. Section 180.1001(c) is amended by concludes that the tolerance exemption economy, productivity, competition, adding and alphabetically inserting the will protect the public health. jobs, the environment, public health or inert ingredient, to read as follows: Therefore, the tolerance exemption is safety, or State, local, or tribal established as set forth below. governments or communities (also § 180.1001 Exemptions from the Any person adversely affected by this referred to as ‘‘economically requirement of a tolerance. regulation may, within 30 days after significant’’); (2) creating serious * * * * * publication of this document in the inconsistency or otherwise interfering (c) * * * Inert ingredients Limits Uses ******* Acrylamide potassium acrylate-acrylic acid copolymer, ...... Carrier crosslinked (CAS Reg. No. 31212-13-2), minimum number average molecular weight 1,000,000. ******* Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9783 * * * * * does not require notice and comment, 5 40 CFR Parts 180, 185, and 186 U.S.C. 553. [FR Doc. 95–4304 Filed 2–16–95; 2:39 pm] [PP 8F2034, 7F2013, 4F2993, 2F2623, BILLING CODE 6560±50±F 4F3046, 2F4144, and 6F3318/R2106; FRL± List of Subjects in 40 CFR Part 180 4933±4] RIN 2070±AB78 40 CFR Part 180 Environmental protection, [PP 3F4169 and FAP 3H5655/R2090; FRL± Pesticide Tolerances for Permethrin, 4937±3] Agricultural commodities, Pesticides Cypermethrin, Fenvalerate/ and pests, Reporting and recordkeeping Esfenvalerate, Tralomethrin, RIN 2070±AB78 requirements. Fenpropathrin, Cyfluthrin, and Lambda-Cyhalothrin; Extension of Pesticide Tolerance for Imidacloprid; Dated: February 10, 1995. Technical Amendment Tolerances AGENCY: Environmental Protection Stephen L. Johnson, AGENCY: Environmental Protection Agency (EPA). Agency (EPA). Director, Registration Division, Office of ACTION ACTION: Final rule; Technical : Final rule. Pesticide Programs. amendment. SUMMARY: This rule extends tolerances SUMMARY: EPA is issuing a technical for residues of seven synthetic Therefore, a technical amendment is pyrethroids—permethrin, cypermethrin, amendment to a final rule on the made to 40 CFR part 180 as follows: insecticide imidacloprid (1-[(6-chloro-3- fenvalerate/esfenvalerate, tralomethrin, pyridinyl)methyl]-N-nitro-2- fenpropathrin, cyfluthrin, and lambda- imidazolidinimine) and its metabolites PART 180Ð[AMENDED] cyhalothrin (collectively referred to as to designate the tolerance for hops as a the synthetic pyrethroids)—in or on time-limited tolerance and to correct a certain raw agricultural commodities. typographical error in an expiration date 1. The authority citation for part 180 FMC Corp. (FMC), Zeneca Ag Products, for a tolerance for cottonseed. continues to read as follows: E.I. DuPont de Nemours & Co., Inc., EFFECTIVE DATE: February 22, 1995. Hoechst-Roussel Agri-Vet Co., Miles, FOR FURTHER INFORMATION CONTACT: Authority: 21 U.S.C. 346a and 371. Inc., and Valent U.S.A Corp., Dennis H. Edwards, Product Manager collectively called the industry’s (PM 19), Registration Division (7505C), 2. In § 180.472, by amending Pyrethroid Working Group (PWG), Office of Pesticide Programs, paragraph (a) in the table therein by requested this rule to extend the Environmental Protection Agency, 401 removing the listing ‘‘Hops, dried’’, by effective date for tolerances for M St., SW., Washington, DC 20460. amending paragraph (b) in the maximum permissible levels of residues Office location and telephone number: introductory text by changing the date of these synthetic pyrethroids in or on Rm. 207, CM #2, 1921 Jefferson Davis ‘‘November 17, 1994’’ to read the commodities. Hwy., Arlington, VA 22202, (703)-305- ‘‘November 17, 1996’’, and by adding EFFECTIVE DATE: This regulation 3686. new paragraph (d), to read as follows: becomes effective February 22, 1995. SUPPLEMENTARY INFORMATION: In the ADDRESSES: Written objections and Federal Register of November 30, 1994 hearing requests, identified by the (59 FR 61278), EPA revised 40 CFR § 180.472 1-[(6-Chloro-3-pyridinyl) methyl]- document control number [PP 8F2034, N-nitro-2-imidazolidinimine; tolerances for 7F2013, 4F2993, 2F2623, 4F3046, 180.472 and removed the time-limited residues. designation for commodities listed in 2F4144, and 6F3318/R2106], may be paragraph (a). The listing ‘‘Hops, dried’’ submitted to: Hearing Clerk (1900), at 3.0 ppm inadvertently was left in * * * * * Environmental Protection Agency, Rm. paragraph (a) in the new list of M3708, 401 M St., SW., Washington, DC commodities without a time-limited (d) A time-limited tolerance, to expire 20460. A copy of any objections and designation, but hops should have June 28, 1995, is established permitting hearing requests filed with the Hearing retained the time-limited designation, residues of the insecticide 1-[(6-chloro- Clerk should be identified by the June 28, 1995, and been moved to a new 3-pyridinyl)methyl]-N-nitro-2- document control number and should paragraph. EPA is rectifying this imidazolidinimine and its metabolites also be submitted to: Public Response oversight by designating the time- containing the 6-chloropyridinyl and Program Resources Branch, Field limited tolerance for hops in new moiety, all expressed as 1-[(6-chloro-3- Operations Division (7605C), Office of paragraph (d) under 40 CFR 180.472. pyridinyl)methyl)-N-nitro-2- Pesticide Programs, Environmental Also, in the November 30, 1994 imidazolidinimine, in or on the Protection Agency, 401 M St., SW., document (59 FR 61278), a following raw agricultural commodity: Washington, DC 20460. In person, typographical error in 40 CFR deliver objections and hearing requests 180.472(b), i.e., the November 17, 1994 filed with the Hearing Clerk to: Rm. Parts per 1132, Crystal Mall #2, 1921 Jefferson time-limited designation, is corrected to Commodity million read ‘‘November 17, 1996’’. The Davis Hwy., Arlington, VA. Fees November 17, 1996 expiration date was accompanying objections shall be specified in the preamble of the Hops, dried ...... 3.0 labeled ‘‘Tolerance Petition Fees’’ and document, and its is correctly stated in forwarded to: EPA, Headquarters the time-limited tolerance for Accounting Operations Branch, OPP cottonseed meal in 40 CFR 186.900(b) in (tolerance fees), P.O. Box 360277M, the same document. [FR Doc. 95–4184 Filed 2–21–95; 8:45 a.m.] Pittsburgh, PA 15251. This document contains corrections FOR FURTHER INFORMATION CONTACT: By and technical amendments only and BILLING CODE 6560±50±F mail: George T. LaRocca, Product 9784 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Manager (PM) 22, Registration Division Hearing Clerk, at the address given establishing new tolerances or raising (7505C), Environmental Protection above (40 CFR 178.20). A copy of the tolerance levels or establishing Agency, 401 M St., SW., Washington, objections and hearing requests filed exemptions from tolerance requirements DC 20460. Office location and telephone with the Hearing Clerk should be do not have a significant economic number: Rm. 227, CM #2, 1921 Jefferson submitted to the OPP docket for this impact on a substantial number of small Davis Hwy., Arlington, VA 22202, (703- rulemaking. The objections submitted entities. A certification statement to this 305-6100). must specify the provisions of the effect was published in the Federal SUPPLEMENTARY INFORMATION: In the regulations deemed objectionable and Register of May 4, 1981 (46 FR 24950). Federal Register of November 14, 1994 the grounds for the objections (40 CFR (55 FR 56454), EPA issued a proposed 178.25). Each objection must be List of Subjects in 40 CFR Parts 180, rule to extend to November 15, 1997, accompanied by the fee prescribed by 185, and 186 tolerances for the residues of the 40 CFR 180.33(i). If a hearing is Environmental protection, synthetic pyrethroids permethrin, requested, the objections must include a Administrative practice and procedure, cypermethrin, fenvalerate/esfenvalerate, statement of the factual issue(s) on Agricultural commodities, Food tralomethrin, fenpropathrin, cyfluthrin, which a hearing is requested, the additives, Feed additives, Pesticides and and lambda-cyhalothrin in or on certain requestor’s contentions on each such pests, Records and recordkeeping. commodities. The PWG had submitted issue, and a summary of any evidence Dated: February 1, 1995. petitions to establish tolerances for the relied upon by the objector (40 CFR synthetic pyrethroids. The data 178.27). A request for a hearing will be Stephen L. Johnson, submitted in support of the tolerances granted if the Administrator determines Director, Registration Division, Office of and other relevant materials have been that the material submitted shows the Pesticide Programs. reviewed. following: There is a genuine and Therefore, chapter I of title 40 of the The toxicological and metabolism substantial issue of fact; there is a Code of Federal Regulations is amended data and analytical methods for reasonable possibility that available as follows: enforcement purposes considered in evidence identified by the requestor support of these tolerances are would, if established, resolve one or PART 180Ð[AMENDED] discussed in detail in related documents more of such issues in favor of the published in the Federal Registers of 1. In part 180: requestor, taking into account a. The authority citation for part 180 April 25, 1979 (44 FR 24287) for uncontested claims or facts to the continues to read as follows: permethrin, January 31, 1979 (44 FR contrary; and resolution of the factual 6098) for fenvalerate, September 18, issue(s) in the manner sought by the Authority: 21 U.S.C. 346a and 371. 1985 (50 FR 37581) for tralomethrin, requestor would be adequate to justify b. In § 180.378, by revising the February 21, 1985 (50 FR 7172) for the action requested (40 CFR 178.32). introductory text of paragraph (a), to cypermethrin, January 25, 1988 (53 FR Under Executive Order 12866 (58 FR read as follows: 1923) for cyfluthrin, April 14, 1993 (58 51735, Oct. 4, 1993), the Agency must FR 19357) for fenpropathrin, and May determine whether the regulatory action § 180.378 Permethrin; tolerances for residues. 24, 1988 (53 FR 18558) for lambda- is ‘‘significant’’ and therefore subject to cyhalothrin. all the requirements of the Executive (a) Tolerances, to expire on November To be consistent with extensions Order (i.e., Regulatory Impact Analysis, 15, 1997, are established for residues of issued for conditional registrations that review by the Office of Management and the insecticide permethrin [(3- have been issued, the Agency is Budget (OMB)). Under section 3(f), the pheoxyphenyl)methyl 3-(2,2- amending and extending tolerances for order defines ‘‘significant’’ as those dichloroethenyl)-2,2- the synthetic pyrethroids with an actions likely to lead to a rule (1) having dimethylcyclopropane carboxylate] in expiration date of November 15, 1997, an annual effect on the economy of $100 or on the following raw agricultural to cover residues expected to result from million or more, or adversely and commodities: use during the period of conditional materially affecting a sector of the * * * * * registration. economy, productivity, competition, c. In § 180.379, by amending the table No public comments or requests for jobs, the environment, public health or in paragraph (a) by revising the footnote referral to an advisory committee were safety, or State, local, or tribal to the entry for cottonseed as follows: received in response to the notice of governments or communities (also § 180.379 Cyano(3-phenoxy-phenyl)methyl- proposed rulemaking. known as ‘‘economically significant’’); 4-chloro-α-(1-methylethyl) benzeneacetate; The data submitted in the petitions (2) creating serious inconsistency or tolerances for residues. and other relevant material have been otherwise interfering with an action (a) * * * evaluated and discussed in the taken or planned by another agency; (3) proposed rule. materially altering the budgetary Parts per Therefore, based on the information impacts of entitlement, grants, user fees, Commodity million considered by the Agency and discussed or loan programs; or (4) raising novel in detail in the proposed rule and based legal or policy issues arising out of legal on the Agency’s conclusion that the mandates, the President’s priorities, or ***** 1 tolerances for residues of the synthetic the principles set forth in this Executive Cottonseed ...... 0.2 pyrethroids in or on the commodities Order. ***** will protect the public health, the Pursuant to the terms of this Agency is establishing the tolerances as Executive Order, EPA has determined 1The tolerance for cottonseed expires on set forth below. that this rule is not ‘‘significant’’ and is November 15, 1997. Any person adversely affected by therefore not subject to OMB review. * * * * * these regulations may, within 30 days Pursuant to the Regulatory Flexibility after publication of this document in the Act (Pub. L. 96-354, 94 Stat. 1164, 5 § 180.418 [Amended] Federal Register, file written objections U.S.C. 601 et seq.), the Administrator d. By amending § 180.418 and/or a request for a hearing with the has determined that regulations Cypermethrin; tolerances for residues in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9785 the introductory text by changing dimethylcyclopropanecarboxylate Parts per ‘‘November 15, 1994’’ to read calculated as the parent in or on the Commodity million ‘‘November 15, 1997’’. following raw agricultural commodities: e. In § 180.422, by revising the * * * * * introductory text to read as follows: ***** § 180.436 [Amended] Cottonseed ...... 10.05 § 180.422 Tralomethrin; tolerances for residues. f. In § 180.436 Cyfluthrin; tolerances for residues, by amending the entry for ***** Tolerances, to expire on November cottonseed in the table therein by 1 15, 1997, are established for the The tolerance for cottonseed expires on amending the footnote to the entry by combined residues of the insecticide November 15, 1997. changing ‘‘November 15, 1994’’ to read tralomethrin ((S)-alpha-cyano-3- ‘‘November 15, 1997’’. h. In § 180.466, by revising the table phenoxybenzyl (1R,3S)-2,2-dimethyl-3- g. In § 180.438 by amending the table therein, to read as follows: [(RS)-1,2,2,2-tetrabromoethyl]- therein by revising the footnote to the cyclopropanecarboxylate; CAS Reg. No. § 180.466 Fenpropathrin; tolerances for entry for cottonseed as follows: 66841-25-6) and its metabolites (S)- residues. alpha-cyano-3-phenoxybenzyl (1R,3R)- § 180.438 [1 α-(S*),3 α-(Z)]-(±)-cyano(3- * * * * * 3(2,2-dibromovinyl)-2,2- phenoxyphenyl)methyl 3-(2-chloro-3,3,3- dimethylcyclopropanecarboxylate and trifluoro-1-propenyl)-2,2- (S)-alpha-cyano-3- dimethylcyclopropanecarboxylate; phenoxybenzyl(1S,3R)-3-(2,2- tolerances for residues. dibromovinyl)-2,2- * * * * * Commodity Parts per million Expiration date Cottonseed ...... 1.0 Nov. 15, 1997. Cattle, fat ...... 0.02 Do. Cattle, mbyp ...... 0.02 Do. Cattle, meat ...... 0.02 Do. Eggs ...... 0.02 Do. Goats, fat ...... 0.02 Do. Goats, mbyp ...... 0.02 Do. Goats, meat ...... 0.02 Do. Hogs, fat ...... 0.02 Do. Hogs, mbyp ...... 0.02 Do. Hogs, meat ...... 0.02 Do. Horses, fat ...... 0.02 Do. Horses, mbyp ...... 0.02 Do. Horses, meat ...... 0.02 Do. Milkfat (reflecting 0.02 ppm in whole milk) ...... 0.03 Do. Poultry, fat ...... 0.02 Do. Poultry, mbyp ...... 0.02 Do. Sheep, fat ...... 0.02 Do. Sheep, mbyp ...... 0.02 Do. Sheep, meat ...... 0.02 Do. PART 185Ð[AMENDED] § 185.1250 Cyfluthrin. resulting from application of the (a) A tolerance, to expire on insecticide to cottonseed. 2. In part 185: November 15, 1997, of 2 parts per * * * * * a. The authority citation for part 185 million is established for residues of the c. In § 185.3225, by revising the table continues to read as follows: insecticide cyfluthrin (cyano(4-fluoro-3- therein, to read as follows: Authority: 21 U.S.C. 346a and 348. phenoxyphenyl)methyl-3-(2,2- dichloroethenyl)-2,2- § 185.3225 Fenpropathrin. b. In § 185.1250, by revising dimethylcyclopropanecarboxylate; CAS paragraph (a), to read as follows: Reg. No. 69359-37-5) in cottonseed oil * * * * * Commodity Parts per million Expiration date Cottonseed oil ...... 3.0 Nov. 15, 1997. d. In § 185.5450, by revising the [(RS)-1,2,2,2-tetrabromoethyl]- dibromovinyl)-2,2- introductory text to read as follows: cyclopropanecarboxylate; CAS Reg. No. dimethylcyclopropanecarboxylate 66841-25-6) and its metabolites (S)- calculated as the parent in or on the § 185.5450 Tralomethrin. alpha-cyano-3-phenoxybenzyl (1R,3R)- following food commodities when Tolerances, to expire on November 3-(2,2-dibromovinyl)-2,2- present as a result of application of the 15, 1997, are established for the dimethylcyclopropanecarboxylate and insecticide to the growing crops: combined residues of the insecticide (S)-alpha-cyano-3- * * * * * tralomethrin ((S)-alpha-cyano-3- phenoxybenzyl(1S,3R)-3-(2,2- phenoxybenzyl-(1R,3S)-2,2-dimethyl-3- 9786 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations PART 186Ð[AMENDED] § 186.1250 Cyfluthrin. resulting from application of the (a) A tolerance, to expire on insecticide to cottonseed. 3. In part 186: November 15, 1997, of 2.0 parts per * * * * * a. The authority citation for part 186 million is established for residues of the c. By amending § 186.3225 by revising continues to read as follows: insecticide cyfluthrin (cyano(4-fluoro-3- the table therein, to read as follows: Authority: 21 U.S.C. 348. phenoxyphenyl)methyl-3-(2,2- dichloroethenyl)-2,2-dimethylcyclo- § 186.3225 Fenpropathrin. b. In § 186.1250, by revising propanecarboxylate (CAS Reg. No. paragraph (a), to read as follows: 69359-37-5)) in cottonseed hulls * * * * * Commodity Parts per million Expiration date Cottonseed hulls ...... 2.0 Nov. 15, 1997. [FR Doc. 95–4305 Filed 2–16–95; 2:39 pm] Dean A. Titcomb, (Chief, Acquisition Regarding Lobbying Form,’’ and DI– BILLING CODE 6560±50±F and Assistance Division), (202) 208– 1962 (Jan 90), ‘‘Statement for Loan 6431. Guarantees and Loan Insurance Form.’’ SUPPLEMENTARY INFORMATION: The This policy change will increase the Department jointed in the publication of flexibility of the Departmental bureaus DEPARTMENT OF THE INTERIOR the Final Rule on Nonprocurement and offices for meeting these Debarment and Suspension published requirements and will accommodate Office of the Secretary on May 26, 1988 (53 FR 19161–19211). particular needs of applicants that have the capability of using other methods to 43 CFR Parts 12 and 18 To implement the certification requirements for participants in primary provide the certifications or statement. Administrative Requirements and Cost and lower tier covered transactions Departmental bureaus and offices will Principles for Assistance ProgramsÐ included in 43 CFR 12.510 (a) and (b), retain the option to continue accepting Subpart DÐGovernmentwide the Department developed two the existing forms and any subsequent Debarment and Suspension Departmental forms for use, specifically, revisions, a consolidated version of the (Nonprocurement) and DI–1953 (9/88), ‘‘Certification Regarding forms, an electronic equivalent, forms of Governmentwide Requirements for Debarment, Suspension, and Other other Federal agencies, if appropriate, or Drug-Free Workplace (Grants); New Responsibility Matters—Primary forms prepared by automated systems of Restrictions on Lobbying Covered Transactions,’’ and DI–1954 (9/ applicant organizations as long as the 88), ‘‘Certification Regarding certification or statement contains the AGENCY: Office of the Secretary, Interior. Debarment, Suspension, Ineligibility applicable language required by the regulation. ACTION: Notification of policy change. and Voluntary Exclusion—Lower Tier Covered Transactions.’’ The certification In some instances, the certification instructions found on the existing forms SUMMARY: This document announces a language used in these forms was the may no longer be included in program change in Departmental policy same as that appearing in Appendices A announcements. Potential applicants concerning the acceptance of and B to Subpart D of 43 CFR Part 12. needing instructions for completion of a certification regarding nonprocurement With the publication of the Final Rule certification may refer to the published debarment and suspension for primary on Drug-Free Workplace Requirements regulation or may request printed and lower tier covered transactions; published on May 25, 1990 (55 FR instructions from the individual named drug-free workplace requirements; and 21681–21705), the Department adopted in the specific program announcement lobbying, including the statement for a similar approach to implement the or publication. loan guarantees and loan insurance. certification requirements required by Since the use of special Departmental 43 CFR 12.630(a). Specifically, DI–1955 Dated: January 31, 1995. forms to meet regulatory requirements (May 1990), ‘‘Certification Regarding Bonnie R. Cohen, was a statement of Departmental policy, Drug-Free Workplace Requirements’’ Assistant Secretary—Policy, Management and not regulatory, the Department is was developed for grantees other than and Budget. using this document to inform potential individuals, and DI–1956 (May 1990), [FR Doc. 95–4288 Filed 2–21–95; 8:45 am] applicants for grants, cooperative ‘‘Certification Regarding Drug-Free BILLING CODE 4310±RF±M agreements, and loans to the revised Workplace Requirements,’’ was policy. This change is in keeping with developed for grantees who are the philosophies of the National individuals. The certification language FEDERAL MARITIME COMMISSION Performance Review to streamline used in these forms was also the same processes. The effect of this change is to as that appearing in Appendix C to 46 CFR Part 500 Subpart D of 43 CFR Part 12. allow applicants, at the instruction of [Docket No. 95±04] the Departmental bureau or office, to The Interim Final Rule on New use any forms or formats, including Restrictions on Lobbying was published Employee Responsibilities and electronic equivalents, as long as the on February 6, 1990 (55 FR 6735–6756). Conduct certification or statement contains the As part of its agency-specific preamble, applicable language required by the the Department identified two AGENCY: Federal Maritime Commission. regulation. Departmental forms to be used for ACTION: Final rule. implementing the lobbying certification EFFECTIVE DATE: This policy change is and statement requirements included in SUMMARY: The Federal Maritime effective on February 22, 1995. 43 CFR 18.100 (b) and (d), specifically, Commission (‘‘Commission’’ or ‘‘FMC’’), FOR FURTHER INFORMATION CONTACT: DI–1963 (Jan 90), ‘‘Certification is repealing its existing agency Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9787 standards of conduct regulations that to this rule and repeals. This rulemaking MHz radio equipment to extend this have been superseded by the branch- is related to the Commission’s deadline. The manufacturers indicate wide Standards of Ethical Conduct organization, procedure and practice. that an extension is necessary because issued by the Office of Government Pursuant to the Regulatory Flexibility they will not be able to deliver radio Ethics (‘‘OGE’’) and by the executive Act, 5 U.S.C. 601 et seq., the equipment to many licensees in time to branch financial disclosure regulations. Commission certifies that this final rule enable them to construct their stations In place of its regulations, the FMC is will not have a significant economic by April 4, 1995. The Wireless substituting cross-references to the new impact on a substantial number of small Telecommunications Bureau agrees that branch-wide regulations. entities, including small businesses, some measure of relief should be EFFECTIVE DATE: February 22, 1995. small organizational units and small afforded to non-nationwide 220–222 FOR FURTHER INFORMATION CONTACT: governmental jurisdictions, because it MHz licensees and has therefore David R. Miles, Designated Agency affects only Commission employees. adopted this Order extending the deadline to December 31, 1995 for all Ethics Official, Federal Maritime List of Subjects in 46 CFR Part 500 Commission, 800 North Capitol Street, non-nationwide 220–222 MHz licensees NW., Washington, D.C. 20573, (202) Conflict of interests, Government to construct their stations and place 523–5740. employees. them in operation. SUPPLEMENTARY INFORMATION: On For the reasons set forth above, the DATES: Compliance date extended to November 6, 1984, the Federal Maritime Federal Maritime Commission, in December 31, 1995. Commission adopted administrative concurrence with the Office of FOR FURTHER INFORMATION CONTACT: regulations governing employee Government Ethics, is amending title Martin D. Liebman, Policy Division, responsibilities and conduct; statements 46, Subchapter A of the Code of Federal Wireless Telecommunications Bureau, of employment and financial interests; Regulations, by revising Part 500 to read (202) 418–0620. as follows: and executive personnel financial SUPPLEMENTARY INFORMATION: disclosure reports. See 46 CFR part 500, PART 500ÐEMPLOYEE ETHICAL Order subpart A, B, C, and D. On August 7, CONDUCT STANDARDS AND 1992, the Office of Government Ethics FINANCIAL DISCLOSURE Adopted: February 16, 1995 published Standards of Ethical Conduct REGULATIONS Released: February 17, 1995 for Employees of the Executive Branch By the Chief, Wireless (‘‘Standards’’) for codification at 5 CFR Authority: 5 U.S.C. 553; 5 U.S.C. 7301; 46 Telecommunications Bureau: part 2635. See 57 FR 35006–35007, as U.S.C. app. 1716. 1. On August 19, 1994. the Private corrected at 57 FR 48557 (October 27, § 500.101 Cross-reference to employee Radio Bureau released a Public Notice 1992) and 57 FR 52583 (November 4, ethical conduct standards and financial (DA 94–902) 1 extending the deadline 1992). The Standards, effective February disclosure regulations. for construction of non-nationwide 220 3, 1993, contain uniform ethical Employees of the Federal Maritime MHz stations from December 2, 1994 to conduct standards applicable to all Commission (‘‘FMC’’) should refer to April 4, 1995.2 The Commission, in the executive branch personnel, and the executive branch-wide Standards of Third Report and Order, GN Docket No. supersede all existing agency standards Ethical Conduct at 5 CFR part 2635, and 93–252, Implementation of Sections 3(n) of conduct. the executive branch-wide financial and 332 of the Communications Act, Accordingly, the Commission is released September 23, 1994, 9 FCC Rcd repealing its existing standards of disclosure regulation at 5 CFR part 2634. 7988 (1994) 59 FR 59945, November 21, conduct regulations at 46 CFR Part 500, 1994, again identified April 4, 1995 as By the Commission. Subparts A, B, and C, which were the construction deadline for non- superseded by the executive branch- Joseph C. Polking, nationwide 220 MHz stations. In that wide Standards on February 3, 1993. In Secretary. decision, the Commission noted that the addition, Subpart D of Part 500, dealing [FR Doc. 95–4238 Filed 2–21–95; 8:45 am] extension ‘‘gives these licensees with financial disclosure, was also BILLING CODE 6730±01±M approximately 12 months from the date superseded on October 5, 1992, by of * * * [the March 30, 1994 Order] OGE’s executive branch-wide financial ** * to complete construction and disclosure regulation, codified at 5 CFR FEDERAL COMMUNICATIONS commence operations. * * *’’ 3 Part 2634. See 57 FR 11800–11830 COMMISSION 2. Recently, the Wireless (April 7, 1992), as amended at 57 FR Telecommunications Bureau received 21854–21855 (May 22, 1992) and 57 FR 47 CFR Part 90 62605 (December 31, 1992). In place of [PR Docket No. 89±552; DA 95±251] 1 The responsibility for licensing the 220 MHz its old standards at 46 CFR part 500, the radio service now resides in the Wireless Commission is issuing a residual cross- Use of the 220±222 MHz Band by the Telecommunications Bureau. 2 (59 FR 15857, April 5, 1994). The December 2, reference provision, at new 46 CFR Private Land Mobile Radio Services 500.101, to refer to both the branch- 1994 deadline was announced in a Private Radio Bureau Order released on March 30, 1994 (see 9 wide Standards and financial disclosure AGENCY: Federal Communications FCC Rcd 1739 (1994)). In that Order, the Bureau, regulations. The Commission has Commission. citing the court appeal challenging the determined not to supplement the ACTION: Interpretation; Extension of Commission’s 220 MHz licensing procedures (see standards with its own agency-specific Evans v. Federal Communications Commission, compliance date. Order, per curiam, Case No. 92–1317 (D.C. Cir. standards. March 18, 1994)) decided that, upon termination of The Commission finds that good SUMMARY: Non-nationwide 220–222 the appeal, all non-nationwide 220 MHz licensees cause exists under 5 U.S.C. 553(b) and MHz licensees are currently required to would be afforded the full 8 months provided under (d)(3) for waiving, as unnecessary and construct their stations and place them our rules (see 47 C.F.R. § 90.725(f)) to construct and operate their stations. The December 2, 1994 contrary to the public interest, the in operation by April 4, 1995. Recently, deadline reflected the approximate 8-month period general notice of proposed rulemaking however, the Commission has received following the March 30, 1994 release of the Order. and the 30-day delay in effectiveness as requests from manufacturers of 220–222 3 See 9 FCC Rcd 8077 (1994). 9788 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations requests from three 220 MHz radio be able to construct a significant number DEPARTMENT OF TRANSPORTATION equipment manufacturers to extend the of 220 MHz systems by the April 4, 1995 current construction deadline beyond deadline, it will not be able to deliver National Highway Traffic Safety April 4, 1995. The first of these was and construct by that date many of the Administration submitted by SEA, Inc. (SEA) in a letter orders for the ‘‘approximately one 49 CFR Part 501 sent to Regina M. Keeney, Chief, thousand full systems that licensees or Wireless Telecommunications Bureau, managers of 220 MHz systems have Organization and Delegation of Powers on January 17, 1995. SEA asks that the attempted to place with LMT.’’ LMT and Duties deadline be extended to December 31, contends that, if those licensees who 1995 for those licensees who have, by have tried to construct their systems by AGENCY: National Highway Traffic placing equipment orders with the deadline lose their licenses due to Safety Administration (NHTSA), manufacturers, demonstrated their the unavailability of equipment, the Department of Transportation. intent to construct their 220 MHz ACTION: Final rule. stations. SEA argues that this extension prospects for the successful deployment of the 220 MHz service ‘‘will is needed because the manufacturing SUMMARY: This notice amends the capacity of the companies producing significantly diminish’’ and the U.S. 220 delegations of authority within the 220 MHz equipment ‘‘is not sufficient to MHz industry will be placed ‘‘in serious National Highway Traffic Safety 5 fill existing orders by the April 4 jeopardy.’’ Administration by transferring, from the deadline’’ and that those licensees who 5. The manufacturers of 220 MHz Associate Administrator for have placed orders ‘‘should not be equipment have indicated that, despite Enforcement to the Director, Office of required to forfeit their licenses’’ due to their best efforts, equipment ordered by Vehicle Safety Compliance, the manufacturers’ inability to deliver many non-nationwide 220 MHz responsibility for granting and denying equipment by that date. As further licensees will not be delivered in time petitions for import eligibility decisions support for its request, SEA contends to enable such licensees to construct that are submitted to the agency under 4 that the Evans v. FCC court appeal their stations by April 4, 1995. The 49 U.S.C. 30141(a)(1) (formerly section caused licensees to delay placing orders, Bureau believes that these licensees 108(c)(3)(C)(i)(I) of the National Traffic and that, upon dismissal of the appeal, and Motor Vehicle Safety Act (the Act)). manufacturers were required suddenly should be afforded some measure of relief from the current construction EFFECTIVE DATE: This delegation is to deliver equipment by a ‘‘single, effective as of February 22, 1995. across-the-board’’ deadline applicable to deadline. The Bureau is also concerned all licensees. SEA observes that, had the that a number of licensees, aware of FOR FURTHER INFORMATION CONTACT: court case not occurred, manufacturers manufacturers’ production difficulties, Coleman Sachs, Office of the Chief would have had to satisfy the less have delayed the placement of orders or Counsel (NCC–10), National Highway difficult requirement of filling orders to have chosen not to place orders at all Traffic Safety Administration, 400 meet the progressive 8-month under the assumption that the orders Seventh Street SW, Washington, DC construction deadlines of the could not be filled by April 4, 1995. 20590 (202–366–5263). approximately 3,600 individual stations Therefore, to provide relief to all SUPPLEMENTARY INFORMATION: that were authorized over an extended licensees—those that have placed orders This notice amends the delegations of period. as well as those that must still do so— 3. E.F. Johnson Company (EFJ), authority within the National Highway the Bureau extends to December 31, Traffic Safety Administration (NHTSA) another 220 MHz equipment 1995 the deadline for nonnationwide manufacturer, in a letter sent to Regina to reflect the transfer of responsibilities 220 MHz licensees to construct their from NHTSA’s Associate Administrator M. Keeney on January 25, 1995, stations and place them in operation. supports SEA’s request for an extension for Enforcement to one of the Associate until December 31, 1995 for those 220 6. Accordingly, for good cause shown, Administrator’s subordinates, the MHz licensees who have timely placed It is Ordered That the requests by SEA Director of the Office of Vehicle Safety an equipment order with a manufacturer Inc., E.F. Johnson Company, Linear Compliance. Under the existing offering type-accepted equipment. EFJ Modulation Technology Limited and delegations of authority, the Associate argues that the current ‘‘compressed other parties for extension of the Administrator for Enforcement is manufacturing and delivery schedule deadline for construction of non- responsible for the ‘‘[g]ranting and can simply not be met, even with the nationwide 220 MHz stations are denying of petitions for import considerable resources [the company] Granted to the extent indicated herein eligibility determinations submitted to will commit to the process’’ and and otherwise denied. the NHTSA by motor vehicle contends that if an extension is not manufacturers and registered importers Federal Communications Commission. granted, the Commission will ** *.’’ 49 CFR 501.8(g)(3). Regulations ‘‘irreparably harm the nascent 220 MHz Regina M. Keeney, establishing the procedures for making industry and seriously set back efforts to Chief, Wireless Telecommunications Bureau. these determinations are found at 49 employ spectrum efficient narrowband [FR Doc. 95–4381 Filed 2–21–95; 8:45 am] CFR part 593. technology on a widespread basis.’’ BILLING CODE 6712±01±M Those regulations implement 49 4. Finally, the third manufacturer, U.S.C. 30141(a)(1)(A) (formerly section Linear Modulation Technology Limited 108(c)(3)(A)(i)(I) of the Act), which (LMT), a wholly-owned subsidiary of provides that a motor vehicle not the Securicor Group plc, in a letter sent originally manufactured to conform to to Regina M. Keeney on February 1, 5 In addition to the letters received from these all applicable Federal motor vehicle 1995, also expresses support for the equipment manufacturers, certain other interested safety standards shall be refused parties, including 220 MHz licensees, have granting of an extension to December submitted requests to the Wireless admission into the United States unless 31, 1995. LMT claims that, while it will Telecommunications Bureau asking for NHTSA has decided that it is construction deadline extensions of up to three substantially similar to a motor vehicle 4 See footnote 2, supra. years. originally manufactured for importation Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9789 into and sale in the United States, submitted to the agency by registered PART 501ÐORGANIZATION AND certified under 49 U.S.C. 30115 importers and manufacturers. DELEGATION OF POWERS AND (formerly section 114 of the Act), and of This notice transfers these DUTIES the same model year as the model of the responsibilities to the Director of motor vehicle to be compared, and is NHTSA’s Office of Vehicle Safety 1. The authority citation for part 501 capable of being readily altered to Compliance. This transfer will eliminate continues to read as follows: one level of management review for conform to all applicable Federal motor Authority: 49 U.S.C. secs. 105 and 322; vehicle safety standards. Where there is these actions, thereby reducing the processing time for the petitions and delegation of authority at 49 CFR 1.50. no substantially similar U.S.-certified some of the costs associated with the motor vehicle, 49 U.S.C. 30141(a)(1)(B) 2. Section 501.8 is amended by importation of the vehicles to which the removing paragraph (g)(3), and by (formerly section 108(c)(3)(A)(i)(II) of petitions relate. the Act) permits a nonconforming motor adding a new paragraph (l), to read as The amendment made through this follows: vehicle to be admitted into the United notice relates solely to the organization States if its safety features comply with, and assignment of duties within the § 501.8 Delegations. or are capable of being altered to comply agency, and has no substantive * * * * * with, all applicable safety standards. regulatory effect. It is therefore not (l) Director, Office of Vehicle Safety Under 49 U.S.C. 30141(a) (formerly subject to the notice and comment and Compliance, Enforcement. The Director, section 108(c)(3)(C)(i) of the Act), these the effective date requirements of the Office of Vehicle Safety Compliance, import eligibility decisions may be Administrative Procedure Act. This amendment is also not subject to the Enforcement, is delegated authority to made ‘‘on the initiative of the Secretary exercise the powers and perform the of Transportation or on petition of a requirements of Executive Order 12866 or to the Department of Transportation’s duties of the Administrator with respect manufacturer or importer registered regulatory policies and procedures. to granting and denying petitions for under (49 U.S.C. 30141(c).’’ The Notice and the opportunity for public import eligibility decisions submitted to Secretary’s authority to make these comment are therefore not required, and the NHTSA by motor vehicle determinations is delegated to the this amendment is effective manufacturers and registered importers Administrator of NHTSA under 49 CFR immediately upon publication in the under 49 U.S.C. 30141(a)(1). 1.50(a). The Administrator, in turn, Federal Register. delegated to the Associate Issued on: February 15, 1995. Administrator for Enforcement, under List of Subjects in 49 CFR Part 501 Ricardo Martinez, 49 CFR 501.8(g)(3), the responsibility for Authority, Delegations. Administrator. granting and denying petitions for In consideration of the foregoing, 49 [FR Doc. 95–4264 Filed 2–21–95; 8:45 am] import eligibility determinations CFR part 501 is amended as follows: BILLING CODE 4910±59±M 9790 Proposed Rules Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 This section of the FEDERAL REGISTER Executive Order 12778 industry consortium, 2 from grain contains notices to the public of the proposed This proposed rule has been reviewed inspection and weighing associations, issuance of rules and regulations. The and 1 from a grain company. In addition purpose of these notices is to give interested under Executive Order 12778, Civil Justice Reform. This action is not to receiving written comments, FGIS persons an opportunity to participate in the reviewed the corn standards with rule making prior to the adoption of the final intended to have a retroactive effect. the rules. United States Grain Standards Act representatives of the Iowa Department provides in Section 87g that no State or of Agriculture, the Grain Quality subdivision may require or impose any Workshops, and other corn-related DEPARTMENT OF AGRICULTURE requirements or restrictions concerning associations. On the basis of all comments and the inspection, weighing, or description other available information, FGIS is Grain Inspection, Packers and of grain under the Act. Otherwise, this proposing three changes to the corn Stockyards Administration proposed rule will not preempt any standards that reflect current market 7 CFR Part 810 State or local laws, regulations, or needs and also serve to improve the policies, unless they present any effectiveness of the standards. The irreconcilable conflict with this rule. RIN 0580±AA14 proposed amendments include: (1) There are no administrative procedures Reporting TW to the nearest tenth of a United States Standards for Corn which must be exhausted prior to any pound, (2) eliminating the count limit judicial challenge to the provisions of on stones and reducing the U.S. Sample AGENCY: Grain Inspection, Packers and this rule. grade aggregate weight tolerance from Stockyards Administration, USDA. Regulatory Flexibility Act Certification more than 0.2 percent by weight to more than 0.1 percent by weight, and (3) ACTION: Proposed rule. James Robert Baker, Administrator, offering stress crack testing as official GIPSA, has determined that this criteria. SUMMARY: In its periodic review of proposed rule will not have a significant existing regulations, the Federal Grain economic impact on a substantial Test Weight (TW) Inspection Service (FGIS), a program of number of small entities as defined in FGIS proposes to revise § 810.102(d) the Grain Inspection, Packers and the Regulatory Flexibility Act (5 U.S.C. of the United States Standards for Grain Stockyards Administration (GIPSA), 602 et seq.) because most users of the to report TW in corn to the nearest tenth proposes to amend the U.S. Standards official inspection and weighing of a pound. This change will bring the for Corn to: Report test weight (TW) to services and those entities that perform reporting requirement for TW into line the nearest tenth of a pound, eliminate these services do not meet the with the reporting requirements for the count limit on stones and reduce the requirements for small entities. Further, other factors, such as total damaged U.S. Sample grade aggregate weight the regulations are applied equally to all kernels and broken corn and foreign tolerance from more than 0.2 percent by entities. material (BCFM). weight to more than 0.1 percent by Background This is not the first time that FGIS has weight, and offers stress crack testing as proposed to revise the reporting official criteria. This proposed rule is During October 1993, the Federal requirement for TW in corn. In 1986, (51 intended to facilitate the marketing of Grain Inspection Service (FGIS), FR 35224) to promote greater uniformity corn. prepared a discussion paper concerning among the grain standards, FGIS DATES: Comments must be submitted on the U.S. Standards for Corn. This paper proposed to reformat the grain standards or before April 24, 1995. addressed a number of issues relating to and solicited comments regarding the standards and was distributed certification requirements for factors not ADDRESSES: Written comments must be throughout the grain industry. The expressed to the nearest tenth. FGIS submitted to George Wollam, GIPSA, paper also served as a starting point for proposed to report all percentages USDA, Room 0623–S, P.O. Box 96454, discussions with producers, trade (except ergot) and all TW values to the Washington, DC 30090–6454; FAX (202) associations, processors, handlers, and nearest tenth. The proposal included 720–4628. merchandisers to better understand TW in corn which is certified in whole All comments received will be made their views on changes needed to and half pounds with fractions of a half available for public inspection at Room improve existing standards. FGIS pound disregarded. 0623 South Building, 1400 received positive feedback from the The majority of commentors who Independence Avenue, SW., grain industry regarding the corn opposed the proposal indicated that Washington, DC during regular business discussion paper; and, in fact, numerous sufficient data were not available to hours (7 CFR 1.27(b)). industry representatives suggested that determine how a change in reporting FGIS continue to develop and distribute FOR FURTHER INFORMATION CONTACT: requirements would affect George Wollam, address as above, similar documents before amending reproducibility of results—especially for telephone (202) 720–0292. other standards. TW in coarse grains. FGIS decided not FGIS received a total of 12 written to revise the reporting requirements, SUPPLEMENTARY INFORMATION: comments concerning the discussion except for dockage in wheat (52 FR Executive Order 12866 paper: 3 from research associations and 24414). FGIS does offer, upon request, universities, 1 from a producer the recording of TW results to the This rule is exempt from Executive organization, 4 from handler and nearest tenth pound in the Remarks Order 12866 review. processor associations, 1 from an section of the grade certificate. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9791 An extensive review of FGIS grain affect the assigned grade, since in most national inspection system will use the inspection and monitoring data, which cases the rounded result will fall within method recommended by the Illinois represent over 4,200 samples, provides the grade requirement. Crop Improvement Association’s standard deviation values for each of the Identity Preserved Grain Lab (IPGL) Stones mandatory factors across all grade levels which performs stress crack tests on within the corn standards. Standard FGIS proposes to eliminate the count over 4,000 corn samples per year. FGIS deviation is a measure of variation; and limit on stones and reduce the aggregate will use this method because it is cost- a particular type of standard deviation, weight tolerance from more than 0.2 effective, easy to use, and quick. the standard deviation of the difference percent by weight to more than 0.1 As described by the IPGL, stress crack (SDD), can be used as a measure of percent by weight. Stones have a tests are performed on random reproducibility. When a sample is harmful effect on corn quality and subsamples of 100 kernels. The kernels reanalyzed for a particular factor, the milling. Several industry representatives are inspected visually on a back lighting reproducibility of results improves as have requested that the count limit on lightboard and separated into four the SDD becomes smaller. stones be eliminated and the aggregate categories: no or zero stress cracks, and The review of inspection data resulted weight tolerance be reduced from more more than two or multiple stress cracks. in separate SDD values for each grade than 0.2 percent by weight to more than The percentage of kernels falling into level for both domestic and export corn 0.1 percent by weight. The elimination each category is used to calculate the samples. Only the export SDD values, of the count limit would serve to further percentage of stress cracks and a stress however, were calculated from raw TW tighten the tolerance of stones by crack index as follows: data reported to the nearest tenth of a allowing a smaller number of heavy % TSC = [% single SC + % double SC pound. Comparison of SDD values stones to downgrade a sample. + % multiple SC] × between factors will therefore focus on Stress Crack Testing SCI = [(% single SC) + (% double SC the export values. For TW, the SDD 3) + (% multiple SC × 5)] value was the same, 0.366, for all grade FGIS proposes to offer corn stress where SC = stress cracks, SCI = stress levels, thus indicating an insignificant crack (SC) testing as official criteria crack index, range and a consistent reproducibility in under the United States Grain Standards and TSC = total stress cracks TW values across all grade levels. For Act. This testing service will be optional The stress crack index is an indication damaged kernels total (DKT), the SDD and FGIS will recover the cost of of the multiplicity of stress cracks in values ranged from 0.853 to 1.814 for providing this service through the each kernel. The weighting factors U.S. Grade Nos. 1 to 5. For BCFM, the applicable inspection fees as set forth in indicate that corn kernels with double corresponding values ranged from 0.197 section 800.71(a) of the regulations. and multiple stress cracks are more Corn kernels which contain stress to 0.359 for U.S. Grade Nos. 1 to 5. The susceptible to breakage than kernels cracks tend to break apart, and, as a range in SDD values reflects the range with single stress cracks. in DKT and BCFM levels and the result, are undesirable in the corn dry FGIS seeks comments not only on the variance in the reproducibility of results milling, wet milling, and food proposal to offer stress crack testing as across grade levels. manufacturing processes. In the dry official criteria but on the reporting The TW SDD values are either close milling process, cracked kernels yield method for results. Since the to or lower than the SDD values for the lower percentages of large flaking grits information will be readily available, other factors when all raw data used in which are the highly valued prime commentors should address whether the the calculation of the SDD values had product (ref. 1). Starch recovery, which percentage of stress cracks in each of the been reported to the nearest tenth. It can is an essential component of the wet three categories, single, double, and be inferred from SDD values that the milling process, is also lower from multiple, should, be reported. If no reporducibility of TW results is similar kernels possessing numerous stress comments are received on the reporting to or better than the reproducibility of cracks. To the food manufacturer, stress method, FGIS will report only the total DKT and BCFM results. The industry cracks are of concern because of the percent of stress cracks and the stress accepts the current practice of reporting adverse effect on soaking which is an crack index. DKT and BCFM results to the nearest essential component of the tenth. Therefore, based on the manufacturing process. Some snack Miscellaneous Changes comparison of SDD values, the industry food companies currently limit the FGIS proposes to revise the format of may also find the reporting of TW to the percent of kernels with stress cracks to the grade chart in § 810.404, Grades and nearest tenth of a pound acceptable. values less than 20 percent (ref. 2). grade requirements for corn, to improve Another consideration for the Cracked corn is also more difficult to the readability of the grade chart. industry is that virtually all TW results store than undamaged corn, since are currently rounded down. For cracked corn is more readily attacked by Proposed Action example, under the current reporting microorganisms and is difficult to aerate FGIS proposes to revise § 810.102, method, a scale reading 53.99 pounds uniformly. Definition of other terms, by revising per bushel is certified as 53.5 pounds Cracked corn could also contribute to section (d), Test weight per bushel. It is per bushel which would meet the TW increased elevator dust levels and, thus, proposed that TW in corn be reported to grade limit for U.S. No. 3 corn. If the negatively impact elevator safety. the nearest tenth of a pound. results, however, were rounded to the Commentors addressed the various FGIS proposes to revise § 810.404, nearest tenth of a pound, the resultant detrimental effects of stress cracks and Grades and grade requirements for corn, 54.0 pounds per bushel would meet the broken corn, and the majority of by revising the definition of U.S. grade limit for U.S. No. 2 corn. In commentors recommended that FGIS Sample grade by eliminating the count general, the current practice of rounding offer stress crack testing as part of the limit on stones and reducing the down causes TW to almost always be national inspection service. Due to the aggregate weight criteria from more than underrepresented throughout the importance of stress crack testing, 0.2 percent by weight to more than 0.1 marketing channel. Furthermore, the GIPSA proposes to offer stress crack percent by weight. rounding of TW results to the nearest testing, upon request, as official criteria. Comments including data, views, and tenth of a pound will not significantly GIPSA and the official agencies of the arguments are solicited from interested 9792 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules persons. Pursuant to Section 4(b)(1) of List of Subjects in 7 CFR Part 810 sorghum, and soybeans is determined the United States Grain Standards Act, Exports, Grain. on the original sample. Test-weight in as amended (7 U.S.C. 76(b)(1)), upon For reasons set out in the preamble, the standards for barley, flaxseed, rye, request, such information concerning 7 CFR Part 810 is proposed to be sunflower seed, triticale, and wheat is changes to the standards may be orally amended as follows: determined after mechanically cleaning presented in an informal manner. Also, PART 810ÐOFFICIAL UNITED STATES the original sample. Test-weight is pursuant to this section, no standards STANDARDS FOR GRAIN recorded to the nearest tenth pound for established or amendments or corn, rye, triticale, and wheat. Test- revocations of standards are to become 1. The authority citation for Part 810 continues to read as follows: weight for all other grains, if applicable, effective less than one calendar year is recorded in whole and half pounds after promulgation unless, in the Authority: Pub. L. 94–582, 90 Stat. 2867, with a fraction of a half pound judgement of the Administrator, the as amended (7 U.S.C. 71 et seq.). disregarded. Test-weight is not an public health, interest, or safety require 2. Section 810.102(d) is revised to that they become effective sooner. read as follows: official factor for canola. * * * * * References § 810.102 Definition of other terms. * * * * * 3. Section 810.404 is revised to read (1) Reid, J.F., Kim, C., and Paulsen, M.R. (d) Test-weight. The weight per as follows: 1991, ‘‘Computer Vision Sensing of Winchester bushel (2,150.42 cubic Stress Cracks in Corn Kernels’’ ASAE, § 810.404 Grades and grade requirements Sept/Oct, v.34 p. 8–9. inches) as determined using an for corn. (2) Stroshine, R. 1991, ‘‘Breakage approved device according to Susceptibility Technology, Uniformity procedures prescribed in FGIS by 2000,’’ Scherer communications, instructions. Test-weight in the Urbana. p. 410–416. standards for corn, mixed grain, oats, Grades U.S. Nos. Grading factors 1 2 3 4 5 Maximum limits of: Test Weight (lbs/bu) ...... 56.0 54.0 52.0 49.0 46.0 Maximum percent limits of: Damaged kernels Heat (part of total) ...... 0.1 0.2 0.5 1.0 3.0 Total ...... 3.0 5.0 7.0 10.0 15.0 Broken corn and foreign material ...... 2.0 3.0 4.0 5.0 7.0 Animal filth ...... 0.2 0.2 0.2 0.2 0.2 Stones ...... 0.1 0.1 0.1 0.1 0.1 Maximum count limits of: Other materials: Castor beans ...... 1 1 1 1 1 Cockleburs ...... 7 7 7 7 7 Crotalaria seeds ...... 2 2 2 2 2 Glass ...... 1 1 1 1 1 Unknown foreign substance ...... 3 3 3 3 3 U.S. Sample grade: U.S. Sample grade is corn that: (a) Does not meet the requirements for the grades U.S. Nos, 1, 2, 3, 4, or 5; or (b) Has a musty, sour, or commercially objectionable foreign odor; or (c) Is heating or otherwise of distinctly low quality. Harold W. Davis, DEPARTMENT OF TRANSPORTATION ACTION: Notice of proposed rulemaking (NPRM). Acting Administrator, Grain Inspection, Federal Aviation Administration Packers and Stockyards Administration. SUMMARY: This document proposes the [FR Doc. 95–4183 Filed 2–21–95; 8:45 am] 14 CFR Part 39 adoption of a new airworthiness BILLING CODE 3410±EN±M directive (AD) that is applicable to [Docket No. 94±ANE±41] General Electric Company (GE) CF6– Airworthiness Directives; General 80A series turbofan engines. This Electric Company CF6 Series Turbofan proposal would require an initial and Engines repetitive on-wing eddy current inspection or an on-wing spot AGENCY: Federal Aviation fluorescent penetrant inspection of the Administration, DOT. compressor rear frame (CRF) midflange for cracks, and replacement, if Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9793 necessary, with serviceable parts. This summarizing each FAA-public contact proposal would also require removal proposal would also require removal concerned with the substance of this from service of non-modified CRF’s as a from service of certain CRF’s as a proposal will be filed in the Rules terminating action to the on-wing terminating action to the on-wing Docket. inspection program. The actions would inspection program. This proposal is Commenters wishing the FAA to be required to be accomplished in prompted by a report of a CRF acknowledge receipt of their comments accordance with the service bulletin separation that resulted in a rejected submitted in response to this notice described previously. takeoff. The actions specified by the must submit a self-addressed, stamped The FAA estimates that 81 engines proposed AD are intended to prevent a postcard on which the following installed on aircraft of U.S. registry CRF separation, which could result in a statement is made: ‘‘Comments to would be affected by this proposed AD, rejected takeoff and damage to the Docket Number 94–ANE–41.’’ The that it would take approximately 85 aircraft. postcard will be date stamped and work hours per engine to accomplish DATES: Comments must be received by returned to the commenter. the proposed actions, and that the average labor rate is $60 per work hour. April 24, 1995. Availability of NPRMs ADDRESSES: Submit comments in Required parts would cost Any person may obtain a copy of this triplicate to the Federal Aviation approximately $20,644 per engine. NPRM by submitting a request to the Administration (FAA), New England Based on these figures, the total cost FAA, New England Region, Office of the Region, Office of the Assistant Chief impact of the proposed AD on U.S. Assistant Chief Counsel, Attention: Counsel, Attention: Rules Docket No. operators is estimated to be $2,085,264. Rules Docket No. 94–ANE–41, 12 New 94–ANE–41, 12 New England Executive The regulations proposed herein England Executive Park, Burlington, MA Park, Burlington, MA 01803–5299. would not have substantial direct effects 01803–5299. Comments may be inspected at this on the States, on the relationship location between 8 a.m. and 4:30 p.m., Discussion between the national government and the States, or on the distribution of Monday through Friday, except Federal This proposed airworthiness directive holidays. power and responsibilities among the (AD) is applicable to General Electric various levels of government. Therefore, The service information referenced in Company (GE) CF6–80A series turbofan the proposed rule may be obtained from in accordance with Executive Order engines. The Federal Aviation 12612, it is determined that this General Electric Aircraft Engines, CF6 Administration (FAA) has received a Distribution Clerk, Room 132, 111 proposal would not have sufficient report of a compressor rear frame (CRF) federalism implications to warrant the Merchant Street, Cincinnati, OH 45246. separation on a GE CF6–80A series This information may be examined at preparation of a Federalism Assessment. turbofan engine that resulted in a For the reasons discussed above, I the FAA, New England Region, Office of rejected takeoff. The FAA has also certify that this proposed regulation (1) the Assistant Chief Counsel, 12 New received seventeen additional reports of Is not a ‘‘significant regulatory action’’ England Executive Park, Burlington, CRF’s found cracked in service. under Executive Order 12866; (2) is not MA. Investigation reveals that axial cracks a ‘‘significant rule’’ under the DOT FOR FURTHER INFORMATION CONTACT: initiate in the CRF midflange and Regulatory Policies and Procedures (44 Robert J. Ganley, Aerospace Engineer, propagate in fatigue due to a high peak FR 11034, February 26, 1979); and (3) if Engine Certification Office, FAA, Engine mean stress found at the rib radius promulgated, will not have a significant and Propeller Directorate, 12 New tangency point where the rib rises to economic impact, positive or negative, England Executive Park, Burlington, MA form the CRF midflange lug. The high on a substantial number of small entities 01803–5299; telephone (617) 238–7138; peak mean stress is a result of thermal under the criteria of the Regulatory fax (617) 238–7199. and pressure loading of the CRF Flexibility Act. A copy of the draft SUPPLEMENTARY INFORMATION: midflange. The cracks reach critical regulatory evaluation prepared for this size, and may result in a CRF action is contained in the Rules Docket. Comments Invited separation. CRF’s with modified A copy of it may be obtained by Interested persons are invited to midflanges exist which decrease the contacting the Rules Docket at the participate in the making of the peak mean stress, therefore reducing the location provided under the caption proposed rule by submitting such chance of a crack initiating. This ADDRESSES. written data, views, or arguments as condition, if not corrected, could result List of Subjects in 14 CFR Part 39 they may desire. Communications in a CRF separation, which could result should identify the Rules Docket in a rejected takeoff and damage to the Air transportation, Aircraft, Aviation number and be submitted in triplicate to aircraft. safety, Safety. the address specified above. All The FAA has reviewed and approved The Proposed Amendment communications received on or before the technical contents of GE CF6–80A the closing date for comments, specified Service Bulletin (SB) No. 72–593, Accordingly, pursuant to the above, will be considered before taking Revision 2, dated March 19, 1992, that authority delegated to me by the action on the proposed rule. The describes procedures for the initial and Administrator, the Federal Aviation proposals contained in this notice may repetitive on-wing eddy current Administration proposes to amend part be changed in light of the comments inspection (ECI) and the on-wing spot 39 of the Federal Aviation Regulations received. fluorescent penetrant inspection (FPI). (14 CFR part 39) as follows: Comments are specifically invited on Since an unsafe condition has been PART 39ÐAIRWORTHINESS the overall regulatory, economic, identified that is likely to exist or DIRECTIVES environmental, and energy aspects of develop on other products of this same the proposed rule. All comments type design, the proposed AD would 1. The authority citation for part 39 submitted will be available, both before require an initial and repetitive on-wing continues to read as follows: and after the closing date for comments, ECI or on-wing spot FPI of the CRF Authority: 49 U.S.C. App. 1354(a), 1421 in the Rules Docket for examination by midflange for cracks, and replacement, and 1423; 49 U.S.C. 106(g); and 14 CFR interested persons. A report if necessary, with serviceable parts. This 11.89. 9794 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules § 39.13 [Amended] compliance with this airworthiness directive, Kansas City, Missouri 64106. Comments 2. Section 39.13 is amended by if any, may be obtained from the Engine may be inspected at this location adding the following new airworthiness Certification Office. between 8 a.m. and 4 p.m., Monday directive: (e) Special flight permits may be issued in through Friday, holidays excepted. accordance with sections 21.197 and 21.199 Service information that applies to the General Electric Company: Docket No. 94– of the Federal Aviation Regulations (14 CFR ANE–41. 21.197 and 21.199) to operate the aircraft to proposed AD may be obtained from Applicability: General Electric Company a location where the requirements of this AD Jetstream Aircraft Limited, Manager (GE) CF6–80A series turbofan engines can be accomplished. Product Support, Prestwick Airport, installed on, but not limited to, Airbus A310 Issued in Burlington, Massachusetts, on Ayrshire, KA9 2RW Scotland; telephone series and Boeing 767 series aircraft. February 14, 1995. (44–292) 79888; facsimile (44–292) Compliance: Required as indicated, unless James C. Jones, 79703; or Jetstream Aircraft Inc., accomplished previously. Librarian, P.O. Box 16029, Dulles To prevent a compressor rear frame (CRF) Acting Manager, Engine and Propeller separation, which could result in a rejected Directorate, Aircraft Certification Service. International Airport, Washington, DC takeoff and damage to the aircraft, [FR Doc. 95–4249 Filed 2–21–95; 8:45 am] 20041–6029; telephone (703) 406–1161; accomplish the following: BILLING CODE 4910±13±P facsimile (703) 406–1469. This (a) Inspect CRF, Part Numbers (P/N) information also may be examined at 9283M77G07, 9283M77G08, 9283M77G09, the Rules Docket at the address above. 9283M77G11, 9283M77G14, 7283M77G15, 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: 9283M77G16, 9283M77G17, 9283M77G18, Mr. 9283M77G19, 1338M77G01, 1338M77G02, [Docket No. 92±CE±23±AD] Raymond A. Stoer, Program Officer, 1338M77G03, 1338M77G04, 1338M77G05, Brussels Aircraft Certification Office, and 1338M77G06, that have not Airworthiness Directives; Jetstream FAA, Europe, Africa, and Middle East accomplished the midflange rework or Aircraft Limited (formerly British Office, c/o American Embassy, B–1000 replacement in accordance with any revision Aerospace, Regional Aircraft Limited) Brussels, Belgium; telephone (322) level of GE CF6–80A Service Bulletin (SB) Jetstream Models 3101 and 3201 513.3830; facsimile (322) 230.6899; or No. 72–600 or 72–611, prior to the effective Airplanes Mr. John P. Dow, Sr., Project Officer, date of this AD, as follows: Small Airplane Directorate, Airplane (1) Perform an on-wing eddy current AGENCY: Federal Aviation Certification Service, FAA, 1201 inspection (ECI) or an on-wing spot Administration, DOT. fluorescent penetrant inspection (FPI) of the Walnut, suite 900, Kansas City, Missouri CRF midflange for cracks in accordance with ACTION: Supplemental notice of 64106; telephone (816) 426–6932; the Accomplishment Instructions and the proposed rulemaking (NPRM); facsimile (816) 426–2169. schedule outlined in Table 1 of GE CF6–80A Reopening of the comment period. SB No. 72–593, Revision 2, dated March 19, SUPPLEMENTARY INFORMATION: SUMMARY: This document reopens the 1992, or within 1,000 cycles in service since Comments Invited the last shop level FPI, whichever occurs comment period and proposes to revise later, after the effective date of this AD. an earlier proposed airworthiness Interested persons are invited to (2) Thereafter, reinspect the CRF midflange directive (AD), which would have participate in the making of the for cracks in accordance with the required inspecting the main passenger/ proposed rule by submitting such Accomplishment Instructions and schedule crew door locking mechanism on written data, views, or arguments as outlined in Table 2 of GE CF6–80A SB No. certain Jetstream Aircraft Limited (JAL) 72–593, Revision 2, dated March 19, 1992. they may desire. Communications (3) Remove from service prior to further Jetstream Models 3101 and 3201 should identify the Rules Docket flight CRF’s with cracked midflanges that airplanes to ensure that a taper pin is number and be submitted in triplicate to exceed the on-wing serviceable limits installed, and installing a taper pin if the address specified above. All specified in Table 2 of GE CF6–80A SB No. not already installed. Since publication communications received on or before 72–593, Revision 2, dated March 19, 1992, of that proposal, the Federal Aviation the closing date for comments, specified and replace with a serviceable part. Administration (FAA) has re-examined above, will be considered before taking (b) Remove from service CRF’s identified various service difficulty reports on the action on the proposed rule. The in paragraph (a) of this AD at the next piece- affected airplanes, and determined that proposals contained in this notice may part exposure, or by December 31, 1996, whichever occurs earlier, and replace with a this is still a valid safety issue, and that be changed in light of the comments serviceable part. Removal and replacement of a modification to the passenger door received. CRF’s in accordance with this paragraph warning system should also be Comments are specifically invited on constitutes terminating action to the on-wing included. Since this action adds an the overall regulatory, economic, inspection requirements of paragraph (a) of additional modification that was not environmental, and energy aspects of this AD. originally proposed, the FAA is the proposed rule. All comments (c) For the purpose of this AD, a allowing additional time for the public submitted will be available, both before serviceable part is defined as a CRF that has to comment. The proposed actions are accomplished the midflange rework or and after the closing date for comments, replacement in accordance with any revision intended to prevent the inability to open in the Rules Docket for examination by level of GE CF6–80A SB No. 72–600 or 72– the passenger/crew door or failure of the interested persons. A report that 611. passenger door warning system, which, summarizes each FAA-public contact (d) An alternative method of compliance or if not detected and corrected, could concerned with the substance of this adjustment of the compliance time that result in passenger injury if emergency proposal will be filed in the Rules provides an acceptable level of safety may be evacuation is needed. Docket. used if approved by the Manager, Engine DATES: Comments must be received on Commenters wishing the FAA to Certification Office. The request should be or before April 28, 1995. forwarded through an appropriate FAA acknowledge receipt of their comments Principal Maintenance Inspector, who may ADDRESSES: Submit comments in submitted in response to this notice add comments and then send it to the triplicate to the FAA, Central Region, must submit a self-addressed, stamped Manager, Engine Certification Office. Office of the Assistant Chief Counsel, postcard on which the following Note: Information concerning the existence Attention: Rules Docket No. 92–CE–23– statement is made: ‘‘Comments to of approved alternative methods of AD, Room 1558, 601 E. 12th Street, Docket No. 92–CE–23–AD.’’ The Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9795 postcard will be date stamped and with Jetstream SB 52–JM 7793, which 12612, it is determined that this returned to the commenter. incorporates the following pages: proposal would not have sufficient federalism implications to warrant the Availability of NPRMs Pages Revision level Date preparation of a Federalism Assessment. For the reasons discussed above, I Any person may obtain a copy of this 4 through ...... Original Issue November NPRM by submitting a request to the 19, 1992. certify that this action (1) is not a FAA, Central Region, Office of the 1, 2, and 3 ... Revision 1 .... August 10, ‘‘significant regulatory action’’ under Assistant Chief Counsel, Attention: 1993. Executive Order 12866; (2) is not a Rules Docket No. 92–CE–23–AD, Room ‘‘significant rule’’ under DOT 1558, 601 E. 12th Street, Kansas City, In addition, JAL has revised certain Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if Missouri 64106. pages of Jetstream SB 52–A–JA 911140, and the FAA has incorporated these promulgated, will not have a significant Discussion revised pages (Revision 2) into the economic impact, positive or negative, proposal. Jetstream SB 52–A–JA 911140 on a substantial number of small entities A proposal (NPRM) to amend part 39 now incorporates the following pages: under the criteria of the Regulatory of the Federal Aviation Regulations (14 Flexibility Act. A copy of the draft CFR part 39) to include an AD that Pages Revision level Date regulatory evaluation prepared for this would apply to certain JAL Jetstream action has been placed in the Rules Models 3101 and 3201 airplanes was 4, 5, 7, and 9 Original Issue February 3, Docket. A copy of it may be obtained by published in the Federal Register on 1992. contacting the Rules Docket at the 2 ...... Revision 1 .... June 26, May 26, 1992 (57 FR 21911). The action 1992. location provided under the caption proposed to require inspecting the main 1, 3, 6, and 8 Revision 2 .... October 6, ADDRESSES. passenger/crew door locking 1992. List of Subjects in 14 CFR Part 39 mechanism to ensure that a taper pin is installed, and installing a taper pin if Since this action adds an additional Air transportation, Aircraft, Aviation not already installed. The proposed modification that was not originally safety, Safety. actions would require to be proposed, the FAA is reopening the The Proposed Amendment accomplished in accordance with comment period to provide additional Jetstream Service Bulletin (SB) 52–A–JA time for public comment. Accordingly, pursuant to the 911140, dated February 3, 1992. This The FAA estimates that 200 airplanes authority delegated to me by the proposal was revised to incorporate in the U.S. registry would be affected by Administrator, the Federal Aviation Administration proposes to amend part Jetstream 52–A–JA 911140, Revision 1, the proposed AD, that it would take 39 of the Federal Aviation Regulations dated June 26, 1992, and then approximately 10 workhours (2 workhours for the taper pin installation (14 CFR part 39) as follows: republished in the Federal Register as a and 8 workhours for the passenger door supplemental NPRM on April 26, 1993 warning system modification) per PART 39ÐAIRWORTHINESS (58 FR 21957). airplane to accomplish the proposed DIRECTIVES Interested persons were afforded an action, and that the average labor rate is 1. The authority citation for part 39 opportunity to participate in the making approximately $60 an hour. Parts to continues to read as follows: of this amendment during both the accomplish the modifications will be NPRM and supplemental NPRM stages. provided by JAL at no cost to the owner/ Authority: 49 U.S.C. App. 1354(a), 1421 No comments were received on the operator. Based on these figures, the and 1423; 49 U.S.C. 106(g); and 14 CFR 11.89. proposed rule or the FAA’s total cost impact of the proposed AD on determination of the cost to the public U.S. operators is estimated to be § 39.13 [Amended] in either instance. $120,000. This figure is based on the 2. Section 39.13 is amended by assumption that no affected owner/ Since publication of the proposals, adding a new airworthiness directive to operator has accomplished either of the the FAA has re-examined various read as follows: proposed modifications; that all service difficulty reports on the affected airplanes would need a taper pin Jetstream Aircraft Limited: Docket No. 92– airplanes, and determined that the installed on the passenger/crew door CE–23–AD. proposed modification is still a valid locking mechanism; and that no Applicability: Jetstream Models 3101 and safety issue, but is not considered an airplane owner/operator has 3201 airplanes (all serial numbers), urgent safety of flight issue. In addition, certificated in any category. accomplished the passenger door Compliance: Required within the next 500 the FAA determined that a modification warning system modification. The FAA to the passenger door warning system hours time-in-service after the effective date anticipates that a majority of the of this AD, unless already accomplished. should be incorporated in order to affected airplanes would already have To prevent the inability to open the ensure evacuation efficiency in the taper pins installed and passenger door passenger/crew door or failure of the event of an emergency. Several reports warning system modifications passenger door warning system, which, if not of passenger door warning system incorporated, thereby reducing the detected and corrected, could result in malfunctions prompted the FAA to proposed cost impact upon the public. passenger injury if emergency evacuation is incorporate this modification into the The regulations proposed herein needed, accomplish the following: would not have substantial direct effects (a) For all affected airplanes that have a proposal. Accomplishment of the main passenger/crew door installed with one proposed passenger door warning on the States, on the relationship of the following serial numbers, accomplish modification would be in accordance between the national government and paragraphs (a)(1) and (a)(2) of this AD, as the States, or on the distribution of applicable: power and responsibilities among the WIPL–SD–0001 through WIPL–SD–0005, various levels of government. Therefore, WIPL–SD–0008 through WIPL–SD–0031, in accordance with Executive Order WIPL–SD–0034 through WIPL–SD–0046, 9796 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules WIPL–SD–0049, WIPL–SD–0051 through Prestwick Airport, Ayrshire, KA9 2RW Airplane Directorate, 1601 Lind WIPL–SD–0065, WIPL–SD–0067, WIPL– Scotland; telephone (44–292) 79888; or Avenue, SW., Renton, Washington; or at SD–0070, WIPL–SD–0071, Jetstream Aircraft Inc., Librarian, P.O. Box the FAA, Atlanta Aircraft Certification SDJ10883, SDJ10884A, SDJ10884B, and 16029, Dulles International Airport, Office, Small Airplane Directorate, SDJ10886 through SDJ10891 Washington, DC, 20041–6029; or may examine these documents at the FAA, Campus Building, 1701 Columbia (1) To ensure that a part number SP28E4 Avenue, Suite 2–160, College Park, taper pin is installed, visually inspect the Central Region, Office of the Assistant Chief passenger/crew door locking mechanism in Counsel, Room 1558, 601 E. 12th Street, Georgia. the area between the locking dog and Kansas City, Missouri 64106. FOR FURTHER INFORMATION CONTACT: indicator button assembly in accordance with Issued in Kansas City, Missouri, on Thomas Peters, Flight Test Branch, Part 2 of the Accomplishment Instructions February 14, 1995. ACE–160A, FAA, Atlanta Aircraft section of Jetstream Service Bulletin (SB) 52– Barry D. Clements, Certification Office, Small Airplane A–JA 911140, which incorporates the Directorate, Campus Building, 1701 following pages: Manager, Small Airplane Directorate, Aircraft Certification Service. Columbia Avenue, Suite 2–160, College Pages Revision level Date [FR Doc. 95–4252 Filed 2–21–95; 8:45 am] Park, Georgia 30337–2748; telephone BILLING CODE 4910±13±U (404) 305–7367; fax (404) 305–7348. 4, 5, 7, and 9 Original Issue February 3, SUPPLEMENTARY INFORMATION: 1992. 2 ...... Revision 1 .... June 26, 14 CFR Part 39 Comments Invited 1992. 1, 3, 6, and 8 Revision 2 .... October 6, [Docket No. 94±NM±254±AD] Interested persons are invited to 1992. participate in the making of the Airworthiness Directives; Lockheed proposed rule by submitting such (2) If a taper pin (part number SP28E4) is Model L±1011±385 Series Airplanes written data, views, or arguments as not installed, prior to further flight, they may desire. Communications shall AGENCY: accomplish Part 3 of the Accomplishment Federal Aviation identify the Rules Docket number and Instructions section of Jetstream SB 52–A–JA Administration, DOT. be submitted in triplicate to the address 911140. ACTION: Notice of proposed rulemaking specified above. All communications (b) For all affected airplanes regardless of (NPRM). received on or before the closing date the serial number passenger door installed, for comments, specified above, will be modify the passenger door warning system in SUMMARY: This document proposes the accordance with the Accomplishment adoption of a new airworthiness considered before taking action on the Instructions section of Jetstream SB 52–JM directive (AD) that is applicable to proposed rule. The proposals contained 7793, which incorporates the following Lockheed Model L–1011–385 series in this notice may be changed in light pages: airplanes. This proposal would require of the comments received. Comments are specifically invited on modifications of various fluid drainage Pages Revision level Date the overall regulatory, economic, areas of the fuselage. This proposal is environmental, and energy aspects of 4 through 11 Original Issue November prompted by incidents involving the proposed rule. All comments 19, 1992. corrosion and fatigue cracking in submitted will be available, both before 1, 2, and 3 ... Revision 1 .... August 10, transport category airplanes that are and after the closing date for comments, 1993. approaching or have exceeded their in the Rules Docket for examination by economic design goal; these incidents interested persons. A report Note 1: Compliance with a previous have jeopardized the airworthiness of revision level of the service bulletins summarizing each FAA-public contact the affected airplanes. The actions referenced in this AD fulfills the applicable concerned with the substance of this specified by the proposed AD are requirements of this AD and is considered proposal will be filed in the Rules intended to prevent degradation of the ‘‘unless already accomplished’’ for that Docket. structural capabilities of the affected portion of the AD. Commenters wishing the FAA to airplanes due to problems associated (c) Special flight permits may be issued in acknowledge receipt of their comments with corrosion. accordance with sections 21.197 and 21.199 submitted in response to this notice of the Federal Aviation Regulations (14 CFR DATES: Comments must be received by must submit a self-addressed, stamped 21.197 and 21.199) to operate the airplane to April 17, 1995. a location where the requirements of this AD postcard on which the following ADDRESSES: can be accomplished. Submit comments in statement is made: ‘‘Comments to (d) An alternative method of compliance or triplicate to the Federal Aviation Docket Number 94–NM–254–AD.’’ The adjustment of the compliance times that Administration (FAA), Transport postcard will be date stamped and provides an equivalent level of safety may be Airplane Directorate, ANM–103, returned to the commenter. approved by the Manager, Brussels Aircraft Attention: Rules Docket No. 94–NM– Certification Office (ACO), FAA, Europe, 254–AD, 1601 Lind Avenue, SW., Availability of NPRMs Africa, and Middle East Office, c/o American Renton, Washington 98055–4056. Any person may obtain a copy of this Embassy, B–1000 Brussels, Belgium. The Comments may be inspected at this NPRM by submitting a request to the request should be forwarded through an location between 9:00 a.m. and 3:00 appropriate FAA Maintenance Inspector, FAA, Transport Airplane Directorate, who may add comments and then send it to p.m., Monday through Friday, except ANM–103, Attention: Rules Docket No. the Manager, Brussels ACO. Federal holidays. 94–NM–254–AD, 1601 Lind Avenue, Note 2: Information concerning the The service information referenced in SW., Renton, Washington 98055–4056. the proposed rule may be obtained from existence of approved alternative methods of Discussion compliance with this AD, if any, may be Lockheed Aeronautical Systems obtained from the Brussels ACO. Support Company, Field Support In April 1988, a high-cycle transport (e) All persons affected by this directive Department, Dept. 693, Zone 0755, 2251 category airplane (specifically, a Boeing may obtain copies of the documents referred Lake Park Drive, Smyrna, Georgia Model 737) was involved in an accident to herein upon request to Jetstream Aircraft 30080. This information may be in which the airplane suffered major Limited, Manager Product Support, examined at the FAA, Transport structural damage during flight. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9797 Investigation of this accident revealed issued AD 93–20–03, amendment 39– additional drainage provisions in the that the airplane had numerous fatigue 8710 (58 FR 60775, November 18, 1993), fuselage drain system. cracks and a great deal of corrosion. which is applicable to all Lockheed 8. Service Bulletin 093–53–192, Subsequent inspections conducted by Model L–1011 series airplanes. That AD Revision 2, dated December 9, 1981, the operator on other high-cycle requires the implementation of a describes procedures for modifying the transport category airplanes in its fleet corrosion prevention and control fuselage drain system. revealed that other airplanes had program (CPCP), comparable to the one 9. Service Bulletin 093–53–204, extensive fatigue cracking and outlined in the Lockheed Document, Revision 1, dated March 26, 1984, corrosion. either by accomplishing specific tasks or describes procedures for modifying the Prompted by the data gained from this by revising the FAA-approved door sill drain and cargo compartment accident, the FAA sponsored a maintenance inspection program to beam at the galley and door conference on aging airplanes in June include such a program. compartments. 1988, which was attended by 10. Service Bulletin 093–53–234, representatives from the aviation Current Service Information Revision 2, dated November 12, 1992, industry and airworthiness authorities Since issuance of AD 93–20–03, the describes procedures for modifying the from around the world. It became FAA has reviewed and approved galley door sill area to improve obvious that, because of the tremendous Revision A of Lockheed Document corrosion resistance. increase in air travel, the relatively slow Number LR 31889, ‘‘Corrosion 11. Service Bulletin 093–57–089, pace of new airplane production, and Prevention and Control Program, TriStar Revision 1, dated October 4, 1976, the apparent economic feasibility of L–1011,’’ dated April 1994. This describes procedures for installing drain operating older technology airplanes revision of the Lockheed Document provisions and a dam in the main rather than retiring them, increased contains Section 7.2, which lists twelve landing gear torque box. attention needed to be focused on the Lockheed service bulletins that have 12. Service Bulletin 093–57–138, aging airplane fleet and maintaining its been recommended for mandatory Revision 1, dated July 17, 1981, and continued operational safety. action by the L–1011 Structures Task Change Note, dated September 3, 1982, The Air Transport Association (ATA) Group. describe procedures for inspecting the of America and the Aerospace The twelve Lockheed service bulletins lower surface bolts at wing body line Industries Association (AIA) of America recommended by the Task Group (WBL) 115.95 to detect corrosion, and agreed to undertake the task of describe various modifications, necessary modification. The FAA has considered the identifying and implementing installations, and inspections of the recommendation of the Task Group and procedures to ensure the continued fuselage and wings that are intended to concurs with it. The FAA has structural airworthiness of aging decrease the airplane’s susceptibility to determined that accomplishment of the transport category airplanes. An corrosion in specific areas. The actions specified in the twelve Airworthiness Assurance Working pertinent Lockheed service bulletins Lockheed service bulletins will Group (AAWG) was established initially are: contribute to positively addressing the in August 1988, with members 1. Service Bulletin 093–51–007, unsafe condition presented by the representing aircraft manufacturers, Revision 5, dated December 20, 1973, problems associated with corrosion. operators, regulatory authorities, and describes procedures for modifying the other aviation industry representatives afterbody-emennage-wing area to Proposed Requirements of AD worldwide. The objective of the AAWG improve drainage capability. was to sponsor ‘‘Task Groups’’ to: Since corrosion is likely to exist or 2. Service Bulletin 093–53–061, develop on airplanes of this type design, 1. select service bulletins, applicable Revision 1, dated June 20, 1974, to each airplane model in the transport an AD is proposed which would require describes procedures for modifying the the accomplishment of the modification, fleet, to be recommended for mandatory drainage provisions at the surround modification of aging airplanes; installation, and other actions specified structure of the C–1, C–2, and C–3 cargo in the twelve Lockheed service bulletins 2. develop corrosion-directed doors. inspections and prevention programs; described previously. 3. review the adequacy of each 3. Service Bulletin 093–53–068, dated Although the proposed AD would be operator’s structural maintenance October 23, 1974, describes procedures a rulemaking action completely separate program; for installing a drain at the C–1A cargo from AD 93–20–03, the compliance 4. review and update the door sill. schedule for the accomplishment of the Supplemental Inspection Documents 4. Service Bulletin 093–53–095, proposed actions would be consistent (SID); and Revision 2, dated June 22, 1987, with that for the corrosion inspections 5. assess repair quality. describes procedures for installing (tasks) currently required by AD 93–20– The L–1011 Structures Task Group, additional provisions for drainage at the 03. The initial corrosion tasks required which was assigned by the AAWG to pressure deck of the nose landing gear. by AD 93–20–03 must be accomplished review the Lockheed Model L–1011–385 5. Service Bulletin 093–53–113, dated within various intervals of time, series airplanes, completed its work on November 12, 1975, describes depending on what ‘‘airplane zone’’ is Item 2 in 1991 and developed a baseline procedures for a modifying the area of involved; the intervals are measured program for controlling corrosion the stringers at Fuselage Station (FS) from a date one year after the effective problems that may jeopardize the 1792 to improve fluid drainage. date of that AD. Accordingly, since the continued airworthiness of the Model 6. Service Bulletin 093–53–157, dated effective date of AD 93–20–03 is L–1011 fleet. The program is contained May 3, 1977, describes procedures for ‘‘December 17, 1993,’’ the schedule for Lockheed Document Number LR 31889, inspecting and modifying the sealing the actions currently required by that ‘‘Corrosion Prevention and Control and drainage provisions at the aft AD is measured from December 17, Program, TriStar L–1011,’’ dated March pressure bulkhead. 1994. 15, 1991. 7. Service Bulletin 093–53–186, This proposed AD would require The FAA reviewed and approved that Revision 3, dated June 11, 1991, accomplishment of the proposed Document and, on October 8, 1993, describes procedures for the installing modifications, installations, and 9798 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules inspections at the same time that the on the States, on the relationship actions necessary to address the unsafe initial corrosion task in the between the national government and condition described in this AD. Such a corresponding airplane zone is required the States, or on the distribution of request should include an assessment of the by AD 93–20–03. Scheduling the effect of the changed configuration on the power and responsibilities among the unsafe condition addressed by this AD. In no proposed actions at the same time as the various levels of government. Therefore, case does the presence of any modification, currently-required corrosion tasks will in accordance with Executive Order alteration, or repair remove any airplane from minimize additional work for affected 12612, it is determined that this the applicability of this AD. operators by allowing them to perform proposal would not have sufficient Compliance: Required as indicated, unless all actions concurrently. This also will federalism implications to warrant the accomplished previously. eliminate the necessity of operators preparation of a Federalism Assessment. To prevent structural failure due to the having to gain access to subject areas For the reasons discussed above, I problems associated with corrosion more than once. certify that this proposed regulation (1) accomplish the following: Additionally, certain of the (a) Accomplish the modifications, is not a ‘‘significant regulatory action’’ installations, and inspections described in modifications described in the twelve under Executive Order 12866; (2) is not the Lockheed service bulletins listed in Lockheed service bulletins were a ‘‘significant rule’’ under the DOT Section 7.2 of Lockheed Document Number incorporated previously on some Regulatory Policies and Procedures (44 LR 31889, ‘‘Corrosion Prevention and Control airplanes during production. For such FR 11034, February 26, 1979); and (3) if Program, TriStar L–1011,’’ Revision A, dated cases, no additional work would be promulgated, will not have a significant April 1994 (hereafter referred to as ‘‘the required by this proposed AD. economic impact, positive or negative, Document’’), in accordance with the following schedule: Economic Impact Information on a substantial number of small entities under the criteria of the Regulatory Note 2: Airplanes on which the There are approximately 241 Model Flexibility Act. A copy of the draft modifications, installations, and inspections L–1011–385 series airplanes of the required by this paragraph have been regulatory evaluation prepared for this accomplished prior to the effective date of affected design in the worldwide fleet. action is contained in the Rules Docket. The FAA estimates that 117 airplanes of this AD or during production are considered A copy of it may be obtained by to be in compliance with this paragraph. U.S. registry would be affected by this contacting the Rules Docket at the Note 3: Airplanes on which the proposed AD. It would take location provided under the caption modifications, installations, and inspections approximately 236 work hours per ADDRESSES. required by this paragraph have been airplane to accomplish the proposed accomplished previously in accordance with actions, including time to gain access List of Subjects in 14 CFR Part 39 an earlier version of the applicable service and close up. The average labor rate is Air transportation, Aircraft, Aviation bulletin listed in Section 7.2 of the Document, are considered to be in currently $60 per work hour. Based on safety, Safety. these figures, the total cost impact of the compliance with this paragraph. The Proposed Amendment Note 4: ‘‘Airplane zones,’’ proposed AD on U.S. operators is ‘‘implementation ages,’’ and ‘‘repeat estimated to be $1,656,720, or $14,160 Accordingly, pursuant to the intervals,’’ as referred to in this paragraph, per airplane. authority delegated to me by the are specified in Section 4.3 of the Document. The total cost impact figure discussed Administrator, the Federal Aviation (1) For modifications, installations, and above is based on assumptions that no Administration proposes to amend part inspections located in an airplane zone that operator has yet accomplished any of 39 of the Federal Aviation Regulations has not yet exceeded the ‘‘implementation the proposed requirements of this AD (14 CFR part 39) as follows: age’’ (IA) for that zone as of December 17, action, and that no operator would 1994 (one year after the effective date of AD accomplish those actions in the future if PART 39ÐAIRWORTHINESS 93–20–03, amendment 39–8710): Compliance this AD were not adopted. However, as DIRECTIVES is required no later than the IA plus the indicated previously, some airplanes repeat (R) interval for the applicable zone. (2) For modifications, installations, and that would be subject to the proposed 1. The authority citation for part 39 continues to read as follows: inspections located in an airplane zone that AD were modified during production to has exceeded the IA for that zone as incorporate certain of the proposed Authority: 49 U.S.C. App. 1354(a), 1421 December 17, 1994: Compliance is required modifications and installations. In light and 1423; 49 U.S.C. 106(g); and 14 CFR within one R interval for that zone, measured of this, the total cost impact of this 11.89. from December 17, 1994. (3) For airplanes that are 20 years old or proposal would be considerably less § 39.13 [Amended] that the figure discussed above. older as of December 17, 1994: Additionally, the number of required 2. Section 39.13 is amended by Accomplishment of the modifications, work hours for the proposed adding the following new airworthiness installation, and inspections is required directive: within one R interval for the applicable requirements of this AD, as indicated airplane zone, but not to exceed 6 years, above, is presented as if the Lockheed: Docket 94–NM–254–AD. measured from December 17, 1994, accomplishment of those actions were Applicability: All Model L–1011–385 whichever occurs first. to be conducted as ‘‘stand alone’’ series airplanes, certificated in any category. (b) An alternative method of compliance or actions. However, in actual practice, Note 1: This AD applies to each airplane adjustment of the compliance time that these actions would be accomplished identified in the preceding applicability provides an acceptable level of safety may be coincidentally or in combination with provision, regardless of whether it has been used if approved by the Manager, Atlanta actions currently required by AD 93– modified, altered, or repaired in the area Aircraft Certification Office (ACO), ACE– 115A, FAA, Small Airplane Directorate. 20–03. Therefore, the actual number of subject to the requirements of this AD. For airplanes that have been modified, altered, or Operators shall submit their requests through necessary ‘‘additional’’ work hours will repaired so that the performance of the an appropriate FAA Principal Maintenance be minimal for the majority of affected requirements of this AD is affected, the Inspector, who may add comments and then operators. owner/operator must use the authority send it to the Manager, Atlanta ACO. Regulatory Impact provided in paragraph (b) to request approval Note 5: Information concerning the from the FAA. This approval may address existence of approved alternative methods of The regulations proposed herein either no action, if the current configuration compliance with this AD, if any, may be would not have substantial direct effects eliminates the unsafe condition; or different obtained from the Atlanta ACO. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9799 (c) Special flight permits may be issued in Park, Georgia 30337–2748; telephone approximately 30-percent of the shank accordance with sections 21.197 and 21.199 (404) 305–7362; facsimile (404) 305– cross-section. The remaining 70-percent of the Federal Aviation Regulations (14 CFR 7348. of the shank cross-section failed because 21.197 and 21.199) to operate the airplane to of overstress. Review of service a location where the requirements of this AD SUPPLEMENTARY INFORMATION: can be accomplished. difficulty records in the United Comments Invited Kingdom and Canada, as well as the Issued in Renton, Washington, on February 15, 1995. Interested persons are invited to United States, indicated that this accident was almost identical to other Darrell M. Pederson, participate in the making of the accidents on Piper airplane models of Acting Manager, Transport Airplane proposed rule by submitting such written data, views, or arguments as similar type design. Directorate, Aircraft Certification Service. On February 11, 1994, the FAA issued [FR Doc. 95–4253 Filed 2–21–95; 8:45 am] they may desire. Communications should identify the Rules Docket an advance notice of proposed BILLING CODE 4910±13±U number and be submitted in triplicate to rulemaking (ANPRM) to solicit the address specified above. All comments from owners/operators of the affected airplanes in order to adequately 14 CFR Part 39 communications received on or before the closing date for comments, specified make a determination as to what type of [Docket No. 93±CE±61±AD] above, will be considered before taking action to take (if any). From responses action on the proposed rule. The to this ANPRM, the FAA found that Airworthiness Directives; Piper Aircraft proposals contained in this notice may most of the owners/operators that Corporation PA24, PA28R, PA30, be changed in light of the comments responded are currently inspecting the PA32R, PA32RT, PA34±200, PA34± received. main gear side brace studs on a routine 200T, PA39, and PA44 Series Airplanes Comments are specifically invited on basis (every annual or 100 hours); however, these operators are not AGENCY: Federal Aviation the overall regulatory, economic, removing the studs or using non- Administration, DOT. environmental, and energy aspects of the proposed rule. All comments destructive inspection methods. Based ACTION: Notice of proposed rulemaking on its review of the above-referenced (NPRM). submitted will be available, both before and after the closing date for comments, incidents, the FAA has determined that, SUMMARY: This document proposes to in the Rules Docket for examination by in order to adequately detect any cracks adopt a new airworthiness directive interested persons. A report that on the main gear side brace studs, these (AD) that would apply to certain Piper summarizes each FAA-public contact studs must be removed and inspected Aircraft Corporation (Piper) PA24, concerned with the substance of this using dye penetrant or magnetic particle PA28R, PA30, PA32R, PA32RT, PA34– proposal will be filed in the Rules methods. 200, PA34–200T, PA39, and PA44 series Docket. After examining the circumstances airplanes. The proposed action would Commenters wishing the FAA to and reviewing all available information require repetitively inspecting the main acknowledge receipt of their comments related to the incidents and accidents gear side brace studs for cracks and submitted in response to this notice described above, including the replacing any cracked main gear side must submit a self-addressed, stamped comments received in response to the brace stud. Several reports of main gear postcard on which the following ANPRM, the FAA has determined that side brace stud cracks on the affected statement is made: ‘‘Comments to AD action should be taken to prevent MLG collapse caused by main gear side airplanes, including seven incidents Docket No. 93–CE–61–AD.’’ The brace stud cracks, which, if not detected where the main landing gear (MLG) postcard will be date stamped and and corrected, could result in loss of collapsed, prompted the proposed AD. returned to the commenter. control of the airplane during landing The actions specified by the proposed Availability of NPRMs operations. AD are intended to prevent a MLG Since an unsafe condition has been collapse caused by main gear side brace Any person may obtain a copy of this NPRM by submitting a request to the identified that is likely to exist or stud cracks, which, if not detected and FAA, Central Region, Office of the develop in other Piper PA24, PA28R, corrected, could result in loss of control Assistant Chief Counsel, Attention: PA30, PA32R, PA32RT, PA34–200, of the airplane during landing Rules Docket No. 93–CE–61–AD, Room PA34–200T, PA39, and PA44 series operations. 1558, 601 E. 12th Street, Kansas City, airplanes of the same type design, the DATES: Comments must be received on Missouri 64106. proposed AD would require repetitively or before May 5, 1995. inspecting (using dye penetrant or ADDRESSES: Submit comments in Discussion magnetic particle methods) the main triplicate to the FAA, Central Region, The FAA has received several reports gear side brace studs for cracks, and Office of the Assistant Chief Counsel, of main gear side brace stud cracks on replacing any cracked main gear side Attention: Rules Docket No. 93–CE–61– Piper PA24, PA32R, PA34–200, and brace stud. AD, Room 1558, 601 E. 12th Street, PA34–200T series airplanes. These The FAA estimates that 9,200 Kansas City, Missouri 64106. Comments reports include an accident in the airplanes in the U.S. registry would be may be inspected at this location United Kingdom where the main affected by the proposed AD, that it between 8 a.m. and 4 p.m., Monday landing gear (MLG) collapsed on a Piper would take approximately 5 workhours through Friday, holidays excepted. PA34–200 series airplane because of to initially inspect both the right and Information that relates to the high cycle fatigue cracking of the main left main landing gear side brace studs, proposed AD may be inspected at the gear side brace stud. Metallurgical and that the average labor rate is Rules Docket at the address above. examination of the stud revealed that approximately $60 an hour. Based on FOR FURTHER INFORMATION CONTACT: separate fatigue cracks had originated these figures, the total cost impact of the Christina Marsh, Aerospace Engineer, from both the inboard and the outboard proposed AD on U.S. operators is FAA, Atlanta Aircraft Certification edges near the bending radius of the estimated to be $2,760,000. This figure Office, Campus Building, 1701 shank. Reverse bending loads then represents the cost of the initial Columbia Avenue, Suite 2–160, College allowed these cracks to extend across inspection, and does not reflect costs for 9800 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules repetitive inspections or possible § 39.13 [Amended] Note 1: Main gear side brace studs, part replacements. The FAA has no way of 2. Section 39.13 is amended by numbers, 95299–00 and 95299–02, are no determining how many main gear side adding a new AD to read as follows: longer manufactured, and any main gear side brace stud found cracked incorporating one brace studs may need replacement or Piper Aircraft Corporation: Docket No. 93– of these part numbers may be replaced with how many repetitive inspections each CE–61–AD. Applicability: PA24, PA28R, a part number 78717–02 main gear side brace owner/operator may incur. PA30, PA32R, PA32RT, PA34–200, stud contained in the part number 95643–06 PA34–200T, PA39, and PA44 series and 95643–07 bracket assembly. The regulations proposed herein airplanes (all models and serial Note 2: Accomplishing the actions of this would not have substantial direct effects numbers), certificated in any category. on the States, on the relationship AD does not affect the requirements of AD Compliance: Required within the next 77–13–21, Amendment 39–3093. The between the national government and 100 hours time-in-service (TIS) after the tolerance inspection requirements of that AD the States, or on the distribution of effective date of this AD, unless already still apply for Piper PA24, PA30, and PA39 power and responsibilities among the accomplished, and thereafter as series airplanes. various levels of government. Therefore, indicated. To prevent main landing gear (MLG) (c) Special flight permits may be issued in in accordance with Executive Order collapse caused by main gear side brace stud accordance with sections 21.197 and 21.199 12612, it is determined that this cracks, which, if not detected and corrected, of the Federal Aviation Regulations (14 CFR proposal would not have sufficient could result in loss of control of the airplane 21.197 and 21.199) to operate the airplane to during landing operations, accomplish the a location where the requirements of this AD federalism implications to warrant the can be accomplished. preparation of a Federalism Assessment. following: (a) Remove both the left and right main (d) An alternative method of compliance or For the reasons discussed above, I gear side brace studs from the airplane in adjustment of the initial or repetitive certify that this action (1) is not a accordance with the instructions contained compliance times that provides an equivalent level of safety may be approved by the ‘‘significant regulatory action’’ under in the Landing Gear section of the maintenance manual, and inspect each main Manager, Atlanta Aircraft Certification Office Executive Order 12866; (2) is not a (ACO), Campus Building, 1701 Columbia ‘‘significant rule’’ under DOT gear side brace stud for cracks, using FAA- approved dye penetrant or magnetic particle Avenue, Suite 2–160, College Park, Georgia Regulatory Policies and Procedures (44 methods. 30337–2748. The request shall be forwarded FR 11034, February 26, 1979); and (3) if (1) For any main gear side brace stud found through an appropriate FAA Maintenance promulgated, will not have a significant cracked, prior to further flight, replace the Inspector, who may add comments and then send it to the Manager, Atlanta ACO. economic impact, positive or negative, cracked stud with an FAA-approved on a substantial number of small entities serviceable part (part numbers referenced in Note 3: Information concerning the existence of approved alternative methods of under the criteria of the Regulatory the table in paragraph (b) of this AD) in accordance with the instructions contained compliance with this AD, if any, may be Flexibility Act. A copy of the draft in the Landing Gear section of the applicable obtained from the Atlanta ACO. regulatory evaluation prepared for this maintenance manual, and reinspect as (e) Information related to this AD may be action has been placed in the Rules specified in paragraph (b) of this AD. inspected at the FAA, Central Region, Office Docket. A copy of it may be obtained by (2) For any main gear side brace stud not of the Assistant Chief Counsel, Room 1558, contacting the Rules Docket at the found cracked, prior to further flight, 601 E. 12th Street, Kansas City, Missouri. location provided under the caption reinstall the uncracked stud in accordance Issued in Kansas City, Missouri, on with the instructions contained in the February 14, 1995. ADDRESSES. Landing Gear section of the applicable Barry D. Clements, List of Subjects in 14 CFR Part 39 maintenance manual, and reinspect as specified in paragraph (b) of this AD. Manager, Small Airpane Directorate, Aircraft Certification Service. Air transportation, Aircraft, Aviation (b) Reinspect both the left and right main gear side brace studs, using FAA-approved [FR Doc. 95–4251 Filed 2–21–95; 8:45 am] safety. dye penetrant or magnetic particle BILLING CODE 4910±13±U The Proposed Amendment procedures, at the applicable intervals presented below, and replace any cracked Accordingly, pursuant to the stud or reinstall any uncracked stud as 14 CFR Part 39 authority delegated to me by the specified in paragraphs (a)(1) and (a)(2) of this AD, respectively: [Docket No. 94±ANE±30] Administrator, the Federal Aviation Administration proposes to amend part Airworthiness Directives; Superior Air Part number TIS inspec- Series Air- 39 of the Federal Aviation Regulations installed tion interval planes In- Parts, Inc. Pistons Installed on (14 CFR part 39) as follows: stalled on Teledyne Continental Motors O±470 Series Reciprocating Engines PART 39ÐAIRWORTHINESS 20829±00 ..... 1,000 hours .. PA24. 22512±00 ..... 1,000 hours .. PA24, PA30, DIRECTIVES AGENCY: Federal Aviation and PA39 Administration, DOT. 95299±00 or 500 hours ..... PA28R, 1. The authority citation for part 39 95299±02. PA32R, ACTION: Notice of proposed rulemaking continues to read as follows: PA32RT, (NPRM). Authority: 49 U.S.C. App. 1354(a), 1421 PA34±200, PA34± SUMMARY: This document proposes the and 1423; 49 U.S.C. 106(g); and 14 CFR 200T, and adoption of a new airworthiness 11.89. PA44. directive (AD) that is applicable to 78717±02 1,000 hours .. PA28R, certain Superior Air Parts, Inc. pistons (contained PA32R, installed on Teledyne Continental in the part PA32T, Motors O–470 series reciprocating number PA34±200, engines. This proposal would require 95643±06 PA34± removal from service of certain pistons. or 95643± 200T, and This proposal is prompted by reports of 07 bracket PA44. assembly). piston failures. The actions specified by the proposed AD are intended to Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9801 prevent piston failure, which can result Docket Number 94–ANE–30.’’ The take approximately 2 work hours per in engine power loss, engine failure and postcard will be date stamped and piston to accomplish the proposed loss of the aircraft. returned to the commenter. actions, and that the average labor rate is $60 per work hour. Required parts DATES: Comments must be received by Availability of NPRMs April 24, 1995. would cost approximately $156 per Any person may obtain a copy of this ADDRESSES: Submit comments in piston. Based on these figures, the total triplicate to the Federal Aviation NPRM by submitting a request to the cost impact of the proposed AD on U.S. Administration (FAA), New England FAA, New England Region, Office of the operators is estimated to be $1,541,460. Region, Office of the Assistant Chief Assistant Chief Counsel, Attention: The regulations proposed herein Counsel, Attention: Rules Docket No. Rules Docket No. 94–ANE–30, 12 New would not have substantial direct effects 94–ANE–30, 12 New England Executive England Executive Park, Burlington, MA on the States, on the relationship Park, Burlington, MA 01803–5299. 01803–5299. between the national government and Comments may be inspected at this Discussion the States, or on the distribution of power and responsibilities among the location between 8:00 a.m. and 4:30 The Federal Aviation Administration various levels of government. Therefore, p.m., Monday through Friday, except (FAA) has received reports of failures of in accordance with Executive Order Federal holidays. Superior Air Parts, Inc. pistons, Part 12612, it is determined that this The service information referenced in Number (P/N) SA626992, installed on proposal would not have sufficient the proposed rule may be obtained from Teledyne Continental Motors O–470 federalism implications to warrant the Superior Air Parts, Inc., 14280 Gillis series engines. Investigation revealed preparation of a Federalism Assessment. Rd., Dallas, TX 75244–3792; telephone that an undetermined number of these For the reasons discussed above, I (800) 487–4884. This information may pistons had sharp edged casting lines in be examined at the FAA, New England the area of the piston pin boss that certify that this proposed regulation (1) Region, Office of the Assistant Chief could cause a stress riser. In 1981, is not a ‘‘significant regulatory action’’ Counsel, 12 New England Executive Superior Air Parts, Inc. introduced an under Executive Order 12866; (2) is not Park, Burlington, MA. improved design piston, P/N SA640518, a ‘‘significant rule’’ under the DOT FOR FURTHER INFORMATION CONTACT: recommended to replace piston, P/N Regulatory Policies and Procedures (44 Richard Karanian, Aerospace Engineer, SA626992, at major overhaul. However, FR 11034, February 26, 1979); and (3) if Special Certification Office, FAA, the older model pistons, which are promulgated, will not have a significant Rotorcraft Directorate, 2601 Meacham subjected to high stresses due to heat, economic impact, positive or negative, Blvd., Fort Worth, TX 76137–4298; firing pressures, and uneven forces on a substantial number of small entities telephone (817) 222–5195, fax (817) applied to the piston skirt as the under the criteria of the Regulatory 222–5959. clearance between the piston and Flexibility Act. A copy of the draft regulatory evaluation prepared for this SUPPLEMENTARY INFORMATION: cylinder barrel increases during service, are being reused over more than one action is contained in the Rules Docket. Comments Invited overhaul cycle. This condition, if not A copy of it may be obtained by Interested persons are invited to corrected, could result in engine power contacting the Rules Docket at the participate in the making of the loss, engine failure and loss of the location provided under the caption ADDRESSES. proposed rule by submitting such aircraft. written data, views, or arguments as The FAA has reviewed and approved List of Subjects in 14 CFR Part 39 they may desire. Communications the technical contents of Superior Air Air transportation, Aircraft, Aviation should identify the Rules Docket Parts, Inc. Service Bulletin (SB) No. 93– safety, Safety. number and be submitted in triplicate to 007, dated November 18, 1993, that the address specified above. All describes identification procedures for The Proposed Amendment communications received on or before determining the piston P/N, and Accordingly, pursuant to the the closing date for comments, specified recommends replacement of all affected authority delegated to me by the above, will be considered before taking pistons at major overhaul. Administrator, the Federal Aviation Since an unsafe condition has been action on the proposed rule. The Administration proposes to amend part identified that is likely to exist or proposals contained in this notice may 39 of the Federal Aviation Regulations develop on other products of this same be changed in light of the comments (14 CFR part 39) as follows: received. type design, the proposed AD would Comments are specifically invited on require removal from service of Superior PART 39ÐAIRWORTHINESS the overall regulatory, economic, Air Parts, Inc. pistons, P/N SA626992, at DIRECTIVES environmental, and energy aspects of the next access to the piston, top the proposed rule. All comments overhaul, or major overhaul. The 1. The authority citation for part 39 submitted will be available, both before affected pistons can be identified by continues to read as follows: and after the closing date for comments, either a stamped-in P/N on the piston Authority: 49 U.S.C. App. 1354(a), 1421 in the Rules Docket for examination by dome (SA626992 or SA626992P15) or, and 1423; 49 U.S.C. 106(g); and 14 CFR interested persons. A report by a raised number (SA632932) along 11.89. summarizing each FAA-public contact one of the piston pin bosses on the concerned with the substance of this underside of the piston. The actions § 39.13 [Amended] proposal will be filed in the Rules would be required to be accomplished 2. Section 39.13 is amended by Docket. in accordance with the SB described adding the following new airworthiness Commenters wishing the FAA to previously. directive: acknowledge receipt of their comments The manufacturer has informed the Superior Air Parts, Inc.: Docket No. 94– submitted in response to this notice FAA that 5,585 pistons were shipped ANE–30. must submit a self-addressed, stamped between December 1976 and June 1981 Applicability: Superior Air Parts, Inc. postcard on which the following and would be affected by this proposed pistons, Part Numbers (P/N) SA626992, statement is made: ‘‘Comments to AD. The FAA estimates that it would SA626992P15, and SA632932, installed on 9802 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules Teledyne Continental Motors Model O–470– Agreements Act. In an effort to and label this section ‘‘summary of the K, –L, –R reciprocating engines. These accommodate parties interested in comment.’’ engines are installed on but not limited to submitting comments in this rulemaking To simplify the processing and Cessna 182 series aircraft. proceeding, the Department is extending distribution of these comments, parties Compliance: Required as indicated, unless accomplished previously. the comment period announced in the are encouraged to submit documents in To prevent piston failure, which can result advanced notice of proposed electronic form accompanied by an in engine power loss, engine failure and loss rulemaking. original and one paper copy. All of the aircraft, accomplish the following: DATES: Final comments should be documents filed in electronic form must (a) At the next access to the piston, top received on or before April 3, 1995. be on DOS formatted 3.5’’ diskettes, and overhaul, or major overhaul after the effective must be prepared in either WordPerfect ADDRESSES: Address written comments date of this airworthiness directive, format or a format that the WordPerfect to Susan G. Esserman, Assistant whichever occurs first, remove from service program can convert and import into Secretary for Import Administration, pistons, P/N SA626992, and replace with a WordPerfect. Each comment submitted serviceable part. Central Records Unit, Room B–099, U.S. should be on a separate file on the Department of Commerce, Pennsylvania Note: The affected pistons can be identified diskette and labeled by the number by either a stamped-in P/N on the piston Avenue and 14th Street, N.W., designated for that issue based upon the dome (SA626992 or SA626992P15) or, by a Washington, DC 20230. Comments list of issues outlined below. raised number (SA632932) along one of the should be addressed: Attention: Comments received on diskette will piston pin bosses on the underside of the Advance Notice of Proposed continue to be made available to the piston. Rulemaking/Uruguay Round public on Internet under the following (b) An alternative method of compliance or Agreements Act. Each person address: FTP:// adjustment of the compliance time that submitting a comment should include provides an acceptable level of safety may be FWUX.FEDWORLD.GOV/PUB/IMPORT his or her name and address, and give used if approved by the Manager, Fort Worth In addition, the Department will reasons for any recommendation. Special Certification Office. The request continue to make comments available to should be forwarded through an appropriate FOR FURTHER INFORMATION CONTACT: the public on 3.5’’ diskettes, with FAA Principal Maintenance Inspector, who William D. Hunter, (202) 482–4412, or specific instructions on accessing may add comments and then send it to the David Mason Jr., (202) 482–4969. Manager, Fort Worth Special Certification compressed data, at cost, and paper Office. SUPPLEMENTARY INFORMATION: On copies available for reading and January 3, 1995, the Department of Note: Information concerning the existence photocopying in Room B–099 of the of approved alternative methods of Commerce (the Department) published Central Records Unit. Any questions compliance with this airworthiness directive, an Advance Notice of Proposed concerning file formatting, document if any, may be obtained from the Fort Worth Rulemaking and Request for Comments conversion, access on Internet, or other Special Certification Office. in the Federal Register (Antidumping file requirements should be addressed to Issued in Burlington, Massachusetts, on Duties; Countervailing Duties; Article Andrew Lee Beller, Director of Central February 14, 1995. 1904 of the North American Free Trade Records, (202) 482–1248. Agreement (‘‘Advance Notice of James C. Jones, List of Subjects in 19 CFR Parts 353, Proposed Rulemaking’’) (60 FR 80) as Acting Manager, Engine and Propeller 355, and 356 Directorate, Aircraft Certification Service. the first step in the process of [FR Doc. 95–4250 Filed 2–21–95; 8:45 am] conforming the Department’s existing Business and industry, Foreign trade, BILLING CODE 4910±13±P antidumping duty, countervailing duty, Imports, Trade Practices. and NAFTA Article 1904 regulations to Dated: February 16, 1995. the Uruguay Round Agreements Act. In Barbara R. Stafford, its notification, the Department DEPARTMENT OF COMMERCE Acting Assistant Secretary for Import requested initial comments by February Administration. 3, 1995 and final comments by February International Trade Administration [FR Doc. 95–4453 Filed 2–21–95; 8:45 am] 24, 1995. In an effort to accommodate 19 CFR Part 353, 355, and 356 parties interested in submitting BILLING CODE 3510±DS±P comments in this rulemaking [Docket No. 941264±4364] proceeding, the Department now RIN 0625±AA45 extends the time in which to file final ENVIRONMENTAL PROTECTION comments pursuant to the Advance AGENCY Antidumping Duties; Countervailing Notice of Proposed Rulemaking. The 40 CFR Parts 52 and 63 Duties; Article 1904 of the North new due date for final comments is American Free Trade Agreement April 3, 1995. [WA22±1±6362; FRL±5157±4] FORMAT AND NUMBER OF COPIES: AGENCY: Import Administration, Parties Approval and Promulgation of International Trade Administration, should submit comments in the Implementation Plans, Washington; Department of Commerce. following format: (1) Number each Approval of Section 112(l) Authority; ACTION: Advance Notice of Proposed comment in accordance with the Preconstruction and Operating Rulemaking; Extension of Comment number designated for that issue as Permits; Washington Period. indicated in the list of issues set forth in the Department’s Advance Notice of AGENCY: Environmental Protection SUMMARY: The Department of Commerce Proposed Rulemaking (60 FR 80; Agency (EPA). issued an advance notice of proposed January 3, 1995)); (2) begin each ACTION: Proposed rule. rulemaking and request for comments as comment on a separate page; (3) the first step in the process of concisely state the issue identified and SUMMARY: EPA invites public comment conforming the existing antidumping, discussed in the comment; and (4) on its proposal to approve in part and countervailing duty, and NAFTA Article provide a brief summary of the disapprove in part, numerous revisions 1904 regulations to the Uruguay Round comment (a maximum of 3 sentences) to the State of Washington Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9803 Implementation Plan submitted to EPA on August 20, 1993 and submitted them Washington SIP. The amended rules by the Director of the Washington to EPA on March 8, 1994 as a revision include changes to the following Department of Ecology (WDOE) on to the Washington SIP. sections: WAC 173–400–030 March 8, 1994. The revisions were The Clean Air Act Amendments of ‘‘Definitions;’’ WAC 173–400–040 submitted in accordance with the 1990 also established a new title V ‘‘General standards for maximum requirements of section 110 and Part D which requires States to develop emissions;’’ WAC 173–400–100 of the Clean Air Act (hereinafter the operating permit programs for most ‘‘Registration;’’ WAC 173–400–105 Act). EPA is also proposing to take no stationary sources. While title V ‘‘Records, monitoring, and reporting;’’ action on a number of provisions which operating permit programs are not WAC 173–400–110 ‘‘New source review are unrelated to the purposes of the intended to be part of the SIP, many (NSR);’’ WAC 173–400–120 ‘‘Bubble implementation plan. EPA also invites provisions of the SIP will interact rules;’’ WAC 173–400–131 Issuance of public comment on its proposal to closely with the title V operating permit emission reduction credits;’’ WAC 173– approve certain WDOE rules, and program. As such, most States will be 400–136 ‘‘Use of emission reduction certain rules of the Puget Sound Air revising provisions of their SIPs to credits;’’ WAC 173–400–141 Pollution Control Agency (PSAPCA) facilitate and improve the relationship ‘‘Prevention of significant deterioration and Southwest Air Pollution Control between their SIP and their title V (PSD);’’ WAC 173–400–171 ‘‘Public Authority (SWAPCA), submitted to EPA operating permit program. The WDOE involvement;’’ WAC 173–400–180 by the Director of WDOE on September amended several provisions of its ‘‘Variance;’’ WAC 173–400–230 29, 1994, under the authority of section current rules for air pollution sources ‘‘Regulatory actions;’’ and WAC 173– 112(l) of the Act in order to recognize and submitted them to EPA on March 8, 400–250 ‘‘Appeals.’’ The amended rules conditions and limitations established 1994 as a revision to the Washington include the following new sections pursuant to these rules as Federally SIP. which are revised and recodified enforceable. Section 112(l) of the Act also enables provisions from the previous rules: DATES: Comments must be postmarked the EPA to approve State air toxics rules WAC 173–400–112 ‘‘Requirements for on or before March 24, 1995. or programs for the implementation and new sources in nonattainment areas;’’ ADDRESSES: Written comments should enforcement of emission standards and and WAC 173–400–113 ‘‘Requirements be addressed to: David Bray, Permits other requirements for hazardous air for new sources in attainment or Programs Manager, EPA, Air & pollutants. Approval is granted by the unclassifiable areas.’’ Finally, the Radiation Branch (AT–082), 1200 Sixth EPA if the Agency finds that: (1) The amended rules also include the Avenue, Seattle, Washington 98101. State rule or program is ‘‘no less following entirely new sections: WAC Copies of the State’s request and other stringent’’ than the corresponding 173–400–081 ‘‘Startup and shutdown;’’ information supporting this proposed Federal program or rule; (2) the State WAC 173–400–091 ‘‘Voluntary limits on action are available for inspection program is supported by adequate emissions;’’ and WAC 173–400–107 during normal business hours at the authority and resources; (3) the ‘‘Excess emissions.’’ following locations: EPA, Air & schedule for implementation and With the exceptions discussed in Radiation Branch (AT–082), 1200 Sixth compliance of emission standards and Section II.C. and II.D. below, EPA is Avenue, Seattle, Washington 98101, and other requirements is sufficiently proposing to approve the submitted State of Washington, Department of expeditious; and (4) the rules are version of Chapter 173–400 WAC as a Ecology, 4550 Third Avenue SE, Lacey, otherwise in compliance with Federal revision to the Washington SIP. Note Washington 98504. guidance. that those provisions of WAC 173–400 FOR FURTHER INFORMATION CONTACT: On September 29, 1994, the Director which were not revised on August 20, David C. Bray, Permit Programs of the WDOE submitted an official 1993 and are not discussed in Sections Manager, EPA, Air & Radiation Branch application to obtain approval for title V II.B., II.C., and II.D., below were (AT–082), Seattle, Washington 98101, permitting authorities (with the previously approved by EPA on January (206) 553–4253. exception of PSAPCA and SWAPCA) in 15, 1993 (58 FR 4578). the State of Washington to implement SUPPLEMENTARY INFORMATION: and enforce the statewide rules for B. Discussion of Proposed Approvals I. Background ‘‘Controls for New Sources of Toxic Air 1. New Source Review On November 15, 1990, Congress Pollutants’’ (WAC 173–460) as an The existing provisions related to new amended the Clean Air Act to require, interim program to implement section source review (NSR) were extensively among other things, revisions to state 112(g) of the Act. The Director of the revised to meet the new requirements of implementation plans (SIPs) to attain WDOE also submitted an official Title I, Part D of the Act as set forth in and maintain the National Ambient Air application on behalf of the PSAPCA the ‘‘State Implementation Plans: Quality Standards (NAAQS) in areas and SWAPCA to obtain approval for General Preamble for the which violate those standards those local agencies to implement and Implementation of Title I of the Clean (nonattainment areas). Under the enforce their own rules (portions of Air Act Amendments of 1990’’ (57 FR provisions of the Act, revisions to title PSAPCA Regulations I and III and 13498, April 16, 1992) and to make the I, part D (nonattainment area) new SWAPCA Regulation 460) for new WDOE rules more consistent with EPA’s source review (NSR) rules were required sources of toxic air pollutants. regulations for new source review to be submitted by June 30, 1992 for II. Discussion of SIP Submittal programs in 40 CFR part 51, subpart I PM–10 nonattainment areas, by Review of New Sources and November 15, 1992 for most ozone and A. Description of SIP Submittal Modifications. Specifically: carbon monoxide nonattainment areas, On March 8, 1994, the Director of the a. The definitions of the following and by November 15, 1993 for the WDOE submitted all of Chapter 173–400 terms were revised to be consistent with remainder of the ozone and carbon WAC ‘‘General Regulations for Air EPA’s definitions: ‘‘actual emissions’’ monoxide nonattainment areas. The Pollution Sources’’ (with the exception (WAC 173–400–030(1)), ‘‘allowable Washington Department of Ecology of WAC 173–400–114) as amended on emissions’’ (WAC 173–400–030(5)), (WDOE) amended its part D NSR rules August 20, 1993, as a revision to the ‘‘best available control technology 9804 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules (BACT)’’ (WAC 173–400–030(9)), ‘‘Class for the nonattainment air pollutant and for new and modified major and minor I area’’ (WAC 173–400–030(13)), BACT for all other air pollutants, stationary sources located in attainment ‘‘emission standard and emission comply with the requirements for areas. New and modified minor limitation’’ (WAC 173–400–030(22)), reasonable further progress by providing stationary sources must comply with all ‘‘major modification’’ (WAC 173–400– adequate offsetting emission reductions applicable requirements, utilize the best 030(39)), ‘‘net emission increase’’ (WAC from existing sources in the available control technology (BACT) for 173–400–030(46)), ‘‘new source’’ (WAC nonattainment area, demonstrate that all all air pollutants, not delay the 173–400–030(47)), ‘‘significant’’ (WAC other major sources owned or operated attainment date for any nonattainment 173–400–030(67)), ‘‘source’’ (WAC 173– in the State of Washington are in area nor cause or contribute to a 400–030(69)), and ‘‘volatile organic compliance (or on a compliance violation of any ambient air quality compound (VOC)’’ (WAC 173–400– schedule) with applicable requirements, standard, and comply with the State’s 030(81)). EPA finds that these revised demonstrate through an analysis of air toxics requirements. New and definitions are consistent with the alternatives that the benefits of the modified major stationary sources must requirements of 40 CFR Part 51, Subpart project significantly outweigh the costs comply with all applicable I, and therefore proposes to approve imposed as a result of its location in the requirements, utilize the best available them as revisions to the Washington nonattainment area, comply with the control technology (BACT) for all air SIP. requirements for prevention of pollutants, not delay the attainment date b. New definitions of the following significant deterioration (PSD) if for any nonattainment area nor cause or terms were added to be consistent with applicable, comply with the State’s air contribute to a violation of any ambient EPA’s regulations: ‘‘federal land toxics requirements, and comply with air quality standard, comply with the manager’’ (WAC 173–400–030(28)), the visibility protection requirements requirements for PSD if applicable, ‘‘mandatory Class I federal area’’ (WAC for mandatory Federal Class I areas. comply with the State’s air toxics 173–400–030(38)), ‘‘major stationary Section 189(e) of the Act requires part requirements, and not cause an adverse source’’ (WAC 173–400–030(40)), D NSR programs for PM10 impact on visibility. EPA finds that this ‘‘modification’’ (WAC 173–400– nonattainment areas to treat PM10 new section is consistent with the 030(43)), ‘‘order’’ (WAC 173–400– precursor emissions in the same manner requirements of 40 CFR part 51, subpart 030(53)), ‘‘order of approval’’ (WAC as PM10 emissions unless the I, and therefore proposes to approve it 173–400–030(54)), and ‘‘stationary Administrator has determined that PM10 as a revision to the Washington SIP. source’’ (WAC 173–400–030(74)). EPA precursors do not significantly 2. Startup and Shutdown finds that these new definitions are contribute to violations of the PM10 consistent with the requirements of 40 NAAQS. However, WAC 173–400–112 The new section on ‘‘startup and CFR part 51, subpart I, and therefore does not address PM10 precursors nor shutdown’’ (WAC 173–400–081) proposes to approve them as revisions require them to be treated in the same establishes a requirement that State and to the Washington SIP. manner as PM10 emissions. The local air pollution control authorities c. WAC 173–400–110 ‘‘New Source Administrator has previously made a consider any physical constraints on the Review (NSR)’’ was revised to clarify determination that PM10 precursors do ability of a source to comply with a the applicability of the NSR rule and the not significantly contribute to PM10 standard whenever an authority procedures for submittal of applications, violations in the Thurston County, and promulgates a technology-based making completeness determinations Seattle, Tacoma, and Kent PM10 emission standard or makes a control and final determinations, and appeals of nonattainment areas (see 58 FR 40056 technology determination. Where the orders of approval. The section was also (July 27, 1993) and 59 FR 44324 (August authority determines that the source is revised by revoking provisions and 29, 1994)). The submitted control not capable of achieving continuous replacing them with two new sections strategies for the Wallula, Spokane, and compliance with a standard during as described below. EPA finds that this Yakima PM10 nonattainment areas startup or shutdown, the authority shall revised section is consistent with the contain sufficient information on the establish appropriate limitations to requirements of 40 CFR part 51, subpart relative contribution of PM10 precursors regulate the performance of the source I, and therefore proposes to approve it to the nonattainment problem to enable during startup or shutdown conditions. as a revision to the Washington SIP. the Administrator to determine at this The allowable emissions during startup d. A new section WAC 173–400–112 time that PM10 precursors do not or shutdown must be accounted for in ‘‘Requirements for new sources in significantly contribute to violations of any demonstration of attainment or nonattainment areas’’ was added which the PM10 NAAQS in those three areas. maintenance of ambient air quality specifies the requirements for new and Based on the Administrator’s requirements. In addition, if such modified major and minor stationary determinations regarding PM10 limitations would allow emissions sources proposing to locate in precursors in the three remaining PM10 during periods of startup or shutdown designated nonattainment areas. New nonattainment areas, EPA finds this which exceed those allowed for under and modified minor stationary sources new section to be consistent with the the current EPA-approved SIP, such must comply with all applicable requirements of 40 CFR part 51, subpart limitations shall not take effect until requirements, utilize the best available I, and title I, part D of the Act, as set approved by EPA as a revision to the control technology (BACT) for all air forth in ‘‘State Implementation Plans: SIP. EPA finds this section to be pollutants, not violate the requirements General Preamble for the consistent with EPA requirements and for reasonable further progress Implementation of title I of the Clean proposes to approve it as a revision to established in the SIP and comply with Air Act Amendments of 1990’’ (57 FR the Washington SIP. the State’s air toxics requirements 13498 (April 16, 1992)) and therefore which EPA is today proposing to proposes to approve it as a revision to 3. Excess Emissions approve pursuant to section 112(l) of the the Washington SIP. The new section on ‘‘excess Act (see below). New and modified e. A new section WAC 173–400–113 emissions’’ (WAC 173–400–107) major sources must also comply with all ‘‘Requirements for new sources in establishes requirements for reporting applicable requirements, meet the attainment or nonclassifiable areas’’ was periods of excess emissions and the lowest achievable emission rate (LAER) added which specifies the requirements procedures and criteria for determining, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9805 in the context of an enforcement action, Seitz, Director, OAQPS, that this order that was issued prior to EPA’s when such excess emissions are mechanism could be extended to create approval of a State or local rule, unavoidable and could therefore be Federally enforceable limits for provided the order itself complied with excused and not subject to penalty. The emissions of hazardous air pollutants all of the requirements of the EPA- section sets forth separate criteria for (HAP) if the program were approved approved rule. periods of excess emissions resulting pursuant to section 112(l) of the Act. 5. Miscellaneous Changes from startup or shutdown, scheduled The June 28, 1989 Federal Register maintenance, and upsets. EPA finds this notice establishes five criteria which The remaining changes to WAC 173– section to be consistent with its must be met in order for EPA to approve 400–030 ‘‘Definitions;’’ and the changes requirements for SIP excess emissions a State operating permit program into to WAC 173–400–040 ‘‘General rules (February 15, 1983 memorandum the SIP: (1) The program must be standards for maximum emissions;’’ entitled ‘‘Policy on Excess Emissions submitted to and approved by the EPA; WAC 173–400–100 ‘‘Registration;’’ During Startup, Shutdown, (2) the program must impose a legal WAC 173–400–105 ‘‘Records, Maintenance, and Malfunctions’’ from obligation on the operating permit monitoring, and reporting;’’ WAC 173– Kathleen M. Bennett, Assistant holders to comply with the terms and 400–171 ‘‘Public involvement;’’ ‘‘ WAC Administrator for Air, Noise and conditions of the permit, and permits 173–400–230 ‘‘Regulatory actions;’’ and Radiation to Regional Administrators, that do not conform with the June 28, WAC 173–400–250 ‘‘Appeals’’ are Regions 1–X) and therefore proposes to 1989 criteria or the EPA’s underlying primarily administrative in nature to approve it as a revision to the regulations shall be deemed not conform those sections to current State Washington SIP. Note that this new Federally enforceable; (3) any permit statutes and to other provisions of WAC section replaces the provisions for issued under the program must contain 173–400. EPA finds these changes to be excess emissions which were formerly terms and conditions that are at least a consistent with EPA’s requirements and contained in WAC 173–400–105(5) and stringent as any requirements contained proposes to approve the rules as revised. EPA also proposes to approve the repeal in the SIP, enforceable under the SIP, or C. Discussion of Proposed Disapprovals of those provisions. any section 112 or other CAA requirement, and may not allow for the On January 15, 1993 (58 FR 4578), 4. Voluntary Limits on Emissions waiver of any CAA requirement; (4) any EPA disapproved numerous provisions The new section for voluntary limits permit issued under the program must of Chapter 173–400 WAC. These on emissions (WAC 173–400–091) contain conditions that are permanent, provisions were resubmitted as part of provides a mechanism for the owner or quantifiable, and enforceable as a the March 8, 1994 submittal without the operator of a source to apply for, and practical matter; and (5) any permit that necessary changes to make them obtain, enforceable conditions that limit is intended to be Federally enforceable approvable. EPA is therefore proposing the source’s potential to emit. Such must be issued subject to public to again disapprove the following limitations would be contained in a participation and must be provided to provisions. A complete discussion of ‘‘regulatory order’’ issued by the WDOE the EPA in proposed form on a timely the deficiencies and the reasons for or a local air authority, after public basis. disapproval can be found in the notice and an opportunity for comment, EPA finds that WAC 173–400–091 September 28, 1992 Notice of Proposed and would include monitoring, meets the requirements for Federally Rulemaking (57 FR 44530). recordkeeping and reporting enforceable State operating permit EPA is proposing to disapprove WAC requirements sufficient to ensure that programs as set forth in the June 28, 173–400–040(1) (c) and (d) which allow the source complies with the 1989 Federal Register (54 FR 27274) for the establishment of alternative limitations. and proposes to approve it as a revision opacity limits. EPA is proposing to On June 28, 1989 (54 FR 27274), EPA to the Washington SIP. Furthermore, disapprove the second paragraph of published criteria for approving and EPA proposes that, after final approval WAC 173–400–040(6) which provides incorporating into the SIP regulatory to this section, ‘‘regulatory orders’’ an exception to the sulfur dioxide programs for the issuance of Federally issued pursuant to the EPA-approved emission limitation. EPA is proposing to enforceable State operating permits. WAC 173–400–091, and terms and disapprove the exception provision in Permits issued pursuant to an operating conditions contained therein, would be WAC 173–400–050(3) which allows for permit program approved into the SIP as enforceable by the EPA and by citizens the establishment of an alternative meeting these criteria may be under section 304 of the Act regardless oxygen correction factor for combustion considered Federally enforceable. The of whether such orders were issued and incineration sources. EPA is EPA has encouraged States to develop prior to EPA approval of this section. proposing to disapprove WAC 173–400– such programs in conjunction with title However, such orders would have to 180 Variance which allows the WDOE V operating permits programs to enable have been issued after the effective date to grant a variance to the requirements sources to limit their potential to emit of WAC 173–400–091 (i.e., September governing the quality, nature, duration, to below the title V applicability 20, 1993) in accordance with all of the or extent of discharges of air thresholds. (See the guidance document provisions set forth in that section. contaminants. EPA is proposing to entitled, ‘‘Limitation of Potential to Emit Sources could, thereafter, rely on disapprove WAC 173–400–120 Bubble With Respect to Title V Applicability ‘‘regulatory orders’’ issued pursuant to Rules, WAC 173–400–131 Issuance of Thresholds,’’ dated September 18, 1992, this section as a means to limit their Emission Reduction Credits, and WAC from John Calcagni, Director, Air potential to emit criteria pollutants and 173–400–136 Use of Emission Quality Management Division, Office of the pollutants regulated under the PSD Reduction Credits as these regulations Air Quality Planning and Standards provisions of the SIP in order to avoid do not comply with the requirements of (OAQPS), Office of Air and Radiation, requirements which would otherwise EPA’s Final Emissions Trading Policy U.S. EPA.) On November 3, 1993, the apply to ‘‘major stationary sources.’’ Statement (51 FR 43814, December 4, EPA announced in a guidance EPA requests comment on the 1986). document entitled, ‘‘Approaches to appropriateness of making Federally EPA is proposing to disapprove WAC Creating Federally Enforceable enforceable, as of the date of EPA 173–400–141 Prevention of Significant Emissions Limits,’’ signed by John S. approval, the terms and conditions of an Deterioration (PSD) as it does not meet 9806 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules the requirements of 40 CFR 51.166. demonstration of the protection of emissions from the source are WDOE has adopted, by reference, EPA’s human health and safety. sufficiently low as to protect human PSD regulations (40 CFR 52.21) as in WAC 173–460–010 ‘‘Purpose’’ sets health and safety from potential effect on March 3, 1993. However, forth the purpose of this regulation and carcinogenic and/or other toxic effects. significant changes to EPA’s regulations the policy of the State of Washington in Compliance with this requirement must became effective on July 20, 1993, regulating toxic air pollutants. WAC be demonstrated using the procedures August 19, 1993 and June 3, 1994. Note 173–460–020 ‘‘Definitions’’ incorporates set forth in WAC 173–460. WAC 173– that the PSD provisions of the all of the definitions from WAC 173–400 460–080 ‘‘Demonstrating ambient Washington SIP are currently ‘‘General Regulations for Air Pollution impact compliance’’ requires the owner disapproved and EPA’s PSD regulations Sources’’ and adds several new or operator of a new or modified air have been promulgated into the definitions specific to the control of toxics source to complete an analysis Washington SIP (see 40 CFR 52.2497). toxic air pollutants. WAC 173–460–030 which demonstrates compliance with Until WAC 173–400–141 is revised to ‘‘Requirements, applicability, and the acceptable source impact levels meet current EPA requirements and is exemptions’’ identifies the source (ASIL) established in WAC 173–460. approved by EPA, WDOE will continue categories subject to WAC 173–460 and The analysis must utilize dispersion to issue PSD permits under a partial certain general and specific exemptions modeling techniques in accordance with delegation of the EPA PSD permit from the regulation. EPA guidelines, unless the source program. WAC 173–460–040 ‘‘New source qualifies for using specified small review’’ supplements the new source quantity emission rate tables. D. Provisions Unrelated to the SIP review requirements of WAC 173–400– WAC 173–460–090 ‘‘Second tier EPA is proposing to take no action on 110 by adding additional requirements analysis’’ provides an alternative WAC 173–400–040(2) Fallout; WAC for toxic air pollutant sources. approach for demonstrating acceptable 173–400–040(4) Odors; WAC 173–400– Specifically, it requires any new or impacts if the owner or operator of a 070(7) Sulfuric Acid Plants; WAC 173– modified source subject to WAC 173– proposed new source or modification 460 to submit a notice of construction 400–075 Emission Standards for could not demonstrate compliance with application and obtain a regulatory Sources Emitting Hazardous Air the acceptable source impact levels order approving the notice of Pollutants; and WAC 173–400–115 using the procedures specified in WAC construction prior to commencing Standards of Performance for New 173–460–080. This section allows the construction. This section requires any Sources, as these provisions are not owner or operator of a new or modified new or modified stationary source to related to the criteria pollutants source to petition WDOE to perform a comply with all applicable regulated under the SIP. second tier analysis evaluation to requirements, utilize T–BACT, and determine a means of compliance with III. Discussion of Section 112(l) demonstrate that toxic air pollutant WAC 173–460–070 and –080 by Submittal emissions from the source are establishing allowable emissions for the sufficiently low as to protect human source. A second tier analysis may be A. Description of Submittal health and safety from potential requested when a source wishes to more On September 29, 1994, the Director carcinogenic and/or other toxic effects. accurately characterize risks, to justify of the WDOE submitted WAC 173–460 Source categories for which WDOE has risk greater than acceptable source ‘‘Controls for New Sources of Toxic Air established T–BACT by rule are impact levels, or to otherwise modify Pollutants,’’ SWAPCA Regulation 460 exempted from the requirement to assumptions to more accurately ‘‘Controls for New Sources of Toxic Air demonstrate that their emissions protect represent risks. The WDOE may approve Pollutants,’’ and PSAPCA Regulation I, human health and safety. This section emissions of air toxics from a source Article 6 ‘‘New Source Review’’ and also specifies the process for making where ambient concentrations would Regulation III, Article 2 ‘‘Review of preliminary determinations, including exceed acceptable source impact levels Toxic Air Contaminant Sources’’ for public notice and opportunity for public only if it determines that T–BACT is approval under section 112(l) of the Act. comment, making final determinations, utilized and that emissions of certain air These provisions establish requirements and appealing the permitting authority’s toxics are not likely to result in an for preconstruction permits for new and decision. increased cancer risk of more than one modified sources of HAP. WAC 173–460–050 ‘‘Requirement to in one-hundred thousand. If the WDOE quantify emissions’’ requires new approves the second tier analysis, the B. Discussion of Proposed Approval sources to quantify emissions sufficient notice of construction approval, 1. Permits to Construct for New and to perform the analyses required by following public notice and opportunity Modified Sources of Hazardous Air WAC 173–460 and sets forth the for comment, shall specify allowable Pollutants procedures for making appropriate emissions consistent with WDOE’s emissions calculations. WAC 173–460– determination and include all a. WAC 173–460 ‘‘Controls for New 060 ‘‘Control technology requirements’’ requirements necessary to assure that Sources of Toxic Air Pollutants’’ establishes the requirement for new and conditions of WAC 173–460 and WAC establishes the State of Washington’s modified sources of toxic air pollutants 173–400 are met. procedures for regulating new and to utilize T–BACT and establishes T– WAC 173–460–100 ‘‘Request for risk modified stationary sources of toxic air BACT requirements by rule for management decision’’ provides an pollutants. It is a comprehensive perchloroethylene dry cleaners, alternative approach for sources that regulation which covers more pollutants petroleum solvent dry cleaning systems, emit certain toxic air pollutants that are than the 189 HAP listed in section chromic acid plating and anodizing, likely to result in an increased cancer 112(b) of the Act. In addition, it applies solvent metal cleaners, and abrasive risk of more than one in one-hundred to most stationary sources of toxic air blasting. thousand. The owner or operator of pollutants and not just major stationary WAC 173–460–070 ‘‘Ambient impact such a source may request that WDOE sources. Finally, it requires both the requirement’’ requires the owner or make a risk management decision which application of the best available control operator of a new or modified source of would allow such greater risk. To technology for toxics (T–BACT) and a toxic air pollutants to demonstrate that receive such approval, the owner or Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9807 operator of such source must propose The EPA believes it has authority as EPA approves the revision or allowable emission limits for the source under section 112(l) to approve State revocation of SWAPCA Regulation 460. that represent all known available preconstruction review programs for c. PSAPCA Regulation I, Article 6 reasonable control technology, apply all HAP directly under section 112(l). The ‘‘New Source Review’’ and Regulation known available air toxic pollution EPA is therefore proposing approval of III, Article 2 ‘‘Review of Toxic Air prevention methods, and demonstrate WAC 173–460 now so that permitting Contaminant Sources’’ contain that the proposal will result in a greater authorities in Washington may begin to requirements for the construction and benefit to the environment as a whole. issue Federally enforceable regulatory modification of stationary sources of The source may also propose measures orders as soon as possible. HAP. Regulation I, Article 6 establishes that would reduce community exposure EPA is aware that WAC 173–460 was a comprehensive new source review to comparable toxic air pollutants. not designed specifically to implement program that sets forth the process for WDOE’s decision on any request for a section 112(g) of the Act. Furthermore, submitting a ‘‘Notice of Construction risk management decision will follow a EPA has acknowledged that States may and Application for Approval’’ and public notice and opportunity for public encounter difficulties implementing granting an ‘‘Order of Approval’’ or comment, including a public hearing, section 112(g) prior to promulgation of ‘‘Order to Prevent Construction.’’ It and appropriate conditions on emission final EPA regulations (see June 28, 1994 applies to new and modified sources of controls, pollution prevention, or other memorandum entitled, ‘‘Guidance for any air contaminant and includes measures, shall be included in the Initial Implementation of Section requirements for the content of approval of the notice of construction. 112(g),’’ signed by John Seitz, Director applications, payment of ‘‘Notice of WAC 173–460–110 ‘‘Acceptable of the Office of Air Quality Planning Construction’’ review fees, and source impact levels’’ establishes the and Standards). However, EPA believes requirements for public notice and process that the WDOE uses to establish that WAC 173–460 can serve as a comment. Furthermore, Section the acceptable source impact levels in procedural vehicle to make Federally 6.07(c)(3) requires the utilization of the this regulation. WAC 173–460–120 enforceable any case-by-case MACT best available control technology ‘‘Scientific review and amendment of determinations required by section (BACT) for all air contaminants emitted acceptable source impact levels and 112(g) during the transition period by new and modified stationary sources. Regulation III, Article 2 establishes lists’’ establishes an ongoing process for between title V approval in Washington additional requirements for new and the scientific review of information on and EPA approval of WDOE regulations modified sources of toxic air toxic air pollutants and acceptable to implement EPA’s final section 112(g) contaminants and applies to all sources source impact levels. WAC 173–460– regulations. EPA believes WAC 173–460 required to submit a ‘‘notice of 130 ‘‘Fees’’ authorizes the WDOE or will be adequate for this transition construction and application for local air authority to charge fees for the period because it applies to any new approval’’ under Regulation I, Article 6 review of notices of construction. WAC source of HAP and any modification to except for certain source categories for 173–460–140 ‘‘Remedies’’ establishes an existing source of HAP. As such, any which PSAPCA has established T– the civil and criminal enforcement major source which would be subject to BACT by rule. Section 2.01 authorities for violations of WAC 173– section 112(g) of the Act would be ‘‘Applicability’’ states that Article 2 460. Finally, WAC 173–460–150 ‘‘Class required by WAC 173–460 to obtain a applies to all sources of toxic air A toxic air pollutants: Known, probable regulatory order containing a T–BACT contaminants except for the following and potential human carcinogens and determination. Furthermore, WAC 173– source categories for which PSAPCA acceptable source impact levels’’ and 460 allows permitting authorities to has established T–BACT by rule: WAC 173–460–160 ‘‘Class B toxic air select control measures that would meet asbestos removal operations, chromic pollutants and acceptable source impact MACT, as defined in section 112 of the acid plating and anodizing tanks, levels’’ list the acceptable source impact Act, and after EPA approval, to solvent metal cleaners, levels for the toxic air pollutants incorporate these measures into a perchloroethylene dry cleaning systems, regulated by WAC 173–460. Note that Federally enforceable regulatory order. petroleum solvent dry cleaning systems, these levels are criteria used in a permit b. SWAPCA Regulation 460 ‘‘Controls gasoline storage and dispensing review process and are not standards for New Sources of Toxic Air operations, graphic arts systems, can which would be enforceable against Pollutants’’ adopts WAC 173–460 by and paper coating operations, motor sources by either the State or EPA. reference as a local regulation. As vehicle and mobile equipment coating EPA is proposing to approve WAC discussed in Section III.B.1. above, this operations, polyester/vinylester/gelcoat/ 173–460 under section 112(l) of the Act WAC 173–460 meets all of EPA’s resin operations, coatings and ink in order to recognize regulatory orders requirements for a permit to construct manufacturing, and ethylene oxide approving notices of construction as program to establish Federally sterilizers and aerators. Note that Federally enforceable. EPA is also enforceable limitations on new and sources exempt from the additional proposing to approve the provisions of modified stationary sources of HAP. requirements of this section are not WAC 173–400 that are used to EPA is therefore proposing to approve exempted from the requirement of implement the requirements of WAC SWAPCA Regulation 460 under the Regulation I, Article 6 ‘‘New Source 173–460 (specifically, WAC 173–400– authority of section 112(l) of the Act. Review.’’ Section 2.02 ‘‘National 110, –112, –113, and –171) under Note that EPA is proposing to approve Emission Standards for Hazardous Air section 112(l) of the Act. If approved, WAC 173–460 which is applicable Pollutants’’ requires all sources subject permitting authorities would be able to statewide and, by State law, remains in to Article 2 to comply with any utilize regulatory orders issued pursuant effect in all areas of the State regardless applicable provision of 40 CFR part 61. to WAC 173–460 to establish Federally of any local agency regulations. If Section 2.03 ‘‘New or Altered Toxic Air enforceable limits on potential to emit SWAPCA Regulation 460 is revised or Contaminant Sources’’ requires that no for new and modified stationary sources revoked, SWAPCA is approved to ‘‘Notice of Construction and of HAP and to make any case-by-case implement WAC 173–460 as the new Application for Approval’’ shall be MACT determinations required under source review program for HAP in issued under Regulation I, Article 6 for section 112(g) of the Act. SWAPCA’s jurisdiction until such time a new or modified source subject to 9808 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules Article 2 unless the source owner or section 112 of the Act provides the authorities in Washington may begin to operator demonstrates that the toxic air underlying authority for controlling all issue Federally enforceable regulatory contaminant emissions from the source HAP emissions. orders as soon as possible. will not result in the exceedence of any The EPA believes that the five As discussed in Section II.B.4. above, Acceptable Source Impact Level (ASIL) approval criteria for approving State EPA believes that this section meets the contained in Appendix A of Regulation operating permit programs into the SIP, approval criteria specified in the June III and does not otherwise cause an air as specified in the June 28, 1989 Federal 28, 1989 Federal Register notice. pollution problem. Register notice, are also appropriate for Regarding the statutory criteria of These PSAPCA regulations have evaluating and approving State section 112(l)(5) referred to above, the previously been approved as part of the operating permit programs under EPA believes this section contains Washington SIP for control of criteria section 112(l) of the Act. The November adequate authority to assure compliance pollutants. They also meet all of EPA’s 3, 1993 guidance document entitled with section 112 requirements because requirements for a permit to construct ‘‘Approaches to Creating Federally the third criterion of the June 28, 1989 program to establish Federally Enforceable Emissions Limits,’’ signed notice is met, that is, because the enforceable limitations on new and by John S. Seitz, Director, OAQPS, program does not allow for the waiver modified stationary sources of HAP. indicated that this mechanism could be of any section 112 requirement. Sources Furthermore, the WDOE has certified extended to create Federally enforceable that become minor through a permit that, pursuant to Washington State law, limits for emissions of HAP if the issued pursuant to this program would the PSAPCA regulations are at least as program were approved pursuant to still be required to meet section 112 stringent as corresponding State section 112(l) of the Act. The June 28, requirements applicable to non-major regulations, in this case, WAC 173–460 1989 notice does not address HAP sources. Regarding the requirement for which EPA is also proposing to approve. simply because it was written prior to adequate resources, the EPA believes EPA is therefore proposing to approve the 1990 amendments to section 112, WDOE has demonstrated that it can these PSAPCA regulations under the not because it establishes requirements provide for adequate resources to authority of section 112(l) of the Act. unique to criteria pollutants. In addition support the synthetic minor program. Note that EPA is proposing to approve to meeting the criteria in the June 28, Permitting authorities currently cover WAC 173–460 which is applicable 1989 notice, a State operating permit sources not subject to title V under a statewide and, by State law, remains in program that addresses HAP must meet ‘‘registration’’ program which assesses effect in all areas of the State regardless the statutory criteria for approval under fees adequate to cover the costs of of any local agency regulations. If section 112(l)(5). Section 112(l) allows implementing and enforcing the terms PSAPCA Regulation I, Article 6 or the EPA to approve a program only if it: of regulatory orders issued under this Regulation III, Article 2 is revised or (1) contains adequate authority to assure section. The EPA will monitor each revoked, PSAPCA is approved to compliance with any section 112 permitting authority’s implementation implement WAC 173–460 as the new standards or requirements; (2) is of this section to ensure that adequate source review program for HAP in supported by adequate resources; (3) resources are in fact available. The EPA PSAPCA’s jurisdiction until such time provides for an expeditious schedule for also believes that this section provides as EPA approves the revision or assuring compliance with section 112 for an expeditious schedule for assuring revocation of PSAPCA’s regulations. requirements; and (4) is otherwise likely compliance with section 112 to satisfy the objectives of the Act. The requirements. This program will be used 2. Voluntary Limits on Emissions EPA plans to codify the approval allow a source to establish a voluntary The new section for voluntary limits criteria for programs limiting potential limit on potential to emit to avoid being on emissions (WAC 173–400–091) to emit of HAP, such as State operating subject to a CAA requirement applicable provides a mechanism for the owner or permit programs, through amendments on a particular date. Nothing in this operator of a source to apply for, and to Subpart E of Part 63, the regulations section would allow a source to avoid obtain, enforceable conditions that limit promulgated to implement section or delay compliance with a CAA the source’s potential to emit. The 112(l) of the Act. (See 58 FR 62262, requirement if it fails to obtain an provisions of this section are applicable, November 26, 1993.) The EPA currently appropriate Federally enforceable limit as a matter of State law, to any air anticipates that these regulatory criteria, by the relevant deadline. Finally, the contaminant and not just the criteria as they apply to State operating permit EPA believes it is consistent with the pollutants regulated under the EPA- programs, will mirror those set forth in intent of section 112 of the Act for approved Washington SIP. In addition the June 28, 1989 Federal Register States to provide a mechanism through to requesting approval into the SIP, notice. The EPA currently anticipates which sources may avoid classification WDOE has also requested approval of that since State operating permit as a major source by obtaining a this section under section 112(l) of the programs approved pursuant to section Federally enforceable limit on potential Act for the purpose of creating Federally 112(l) prior to the planned Subpart E to emit. enforceable limitations on the potential revisions will have been approved as EPA therefore, proposes to approve to emit of HAP. Approval under section meeting these criteria, further approval WAC 173–400–091 under the authority 112(l) is necessary because the proposed actions for those programs will not be of section 112(l) of the Act. SIP approval discussed in Section II.B.4. necessary. Furthermore, EPA proposes that, after above only extends to the control of The EPA believes it has authority final approval to this section, criteria pollutants. Federally enforceable under section 112(l) to approve ‘‘regulatory orders’’ issued pursuant to limits on criteria pollutants (i.e., VOC’s programs to limit potential to emit of the EPA-approved WAC 173–400–091, and terms and conditions for HAP or PM–10) may have the incidental HAP directly under section 112(l) prior contained therein, would be enforceable effect of limiting certain HAP listed to this revision to Subpart E. The EPA by the EPA and by citizens under pursuant to section 112(b).1 However, is therefore proposing approval of this section now so that permitting section 304 of the Act regardless of 1 The EPA intends to issue guidance addressing whether such orders were issued prior the technical aspects of how these criteria pollutant a source’s potential to emit of HAP to below section to EPA approval of this section. limits may be recognized for purposes of limiting 112 major source levels. However, such orders would have to Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9809 have been issued after the effective date postmarked by March 24, 1995, will be not impose any new Federal of WAC 173–400–091 (i.e., September considered in the final rulemaking requirements. 20, 1993) in accordance with all of the action taken by EPA. Nothing in this action should be provisions set forth in that Section. construed as permitting or allowing or Sources could, thereafter, rely on Administrative Review establishing a precedent for any future ‘‘regulatory orders’’ issued pursuant to request for revision to any SIP or This action has been classified as a this section as a means to limit their approval of any State rules pursuant to Table 2 SIP action by the Regional potential to emit of HAP in order to section 112(l). Each request for revision Administrator under the procedures avoid requirements which would to any SIP or approval under section published in the Federal Register on otherwise apply to a ‘‘major stationary 112(l) shall be considered separately in January 19, 1989 (54 FR 2214–2224), as source’’ of HAP. EPA requests comment light of specific technical, economic, revised by an October 4, 1993 on the appropriateness of making and environmental factors and in memorandum from Michael H. Shapiro, Federally enforceable the terms and relation to relevant statutory and Acting Assistant Administrator for Air conditions of an order that was issued regulatory requirements. and Radiation. The OMB has exempted prior to EPA’s approval of a State or Under Executive Order 12866 (58 FR Table 2 SIP actions from E.O. 12866 local rule, provided the order itself 51735 (October 4, 1993)), the Agency review. complied with all of the requirements of must determine whether the regulatory the EPA-approved rule. Under the Regulatory Flexibility Act, action is ‘‘significant’’ and therefore 5 U.S.C. 600 et seq., EPA must prepare subject to OMB review and the IV. Summary of Action a regulatory flexibility analysis requirements of the Executive Order. EPA is soliciting public comment on assessing the impact of any proposed or The Order defines ‘‘significant its proposed approval in part and final rule on small entities. 5 U.S.C. 603 regulatory action’’ as one that is likely disapproval in part of revisions to the and 604. Alternatively, EPA may certify to result in a rule that may: State of Washington Implementation that the rule will not have a significant (1) Have an annual effect on the Plan. Specifically, EPA is proposing to impact on a substantial number of small economy of $100 million or more or approve: entities. Small entities include small adversely affect in a material way the WAC 173–400 as in effect on businesses, small not-for-profit economy, a sector of the economy, September 20, 1993, except for the enterprises, and government entities productivity, competition, jobs, the following sections: –040(1)(c) and (d); with jurisdiction over populations of environment, public health or safety, or –040(2); –040(4); the second paragraph less than 50,000. State, local, or tribal governments or of –040(6); the exception provision in SIP approvals under section 110 and communities; –050(3); –070(7); –075; –115; –120; subchapter I, Part D of the CAA do not (2) Create a serious inconsistency or –131; –136; –141; and –180. create any new requirements, but otherwise interfere with an action taken EPA is proposing to disapprove the simply approve requirements that the or planned by another agency; following: State is already imposing. Similarly, (3) Materially alter the budgetary WAC 173–400–040(1)(c) and (d), the approvals of State rules under section impact or entitlements, grants, user fees, second paragraph of –040(6), the 112(l) do not create any new or loan programs or the rights and exception provision in –050(3), –120, requirements. Therefore, because the obligations of recipients thereof; or –131, –136, –141, and –180. Federal SIP approval and the section (4) Raise novel legal or policy issues EPA is proposing to take no action on 112(l) approval do not impose any new arising out of legal mandates, the the following: requirements, I certify that they do not President’s priorities, or the principles WAC 173–400–040(2), –040(4), have a significant impact on any small set forth in the Executive Order. –070(7), –075, and –115. entities affected. Moreover, due to the It has been determined that the Note that WAC 173–400–114 was not nature of the Federal-State relationship proposed approval of the State and local submitted for inclusion in the under the CAA, preparation of a air toxics rules under section 112(l) is Washington SIP. regulatory flexibility analysis would not a ‘‘significant regulatory action’’ EPA is also soliciting public comment constitute Federal inquiry into the under the terms of Executive Order on its proposed approval of certain State economic reasonableness of State 12866 and is therefore not subject to and local agency regulations pursuant to action. The CAA forbids EPA to base its OMB review. the authority of section 112(l) of the Act. actions concerning SIPs on such Authority: 42 U.S.C. 7401–7671q. Specifically, EPA is proposing to grounds. Union Electric Co. v. approve the following: List of Subjects U.S.E.P.A., 427 U.S. 246, 256–66 (S.Ct. WAC 173–460 as in effect on February 1976); 42 U.S.C. 7410(a)(2). 40 CFR Part 52 14, 1994; WAC 173–400–091; –110; 112; 113; EPA’s disapproval of the State request Environmental protection, Air and 171 as in effect on September 20, under section 110 and subchapter I, part pollution control, Carbon monoxide, 1993; D of the CAA does not affect any Hydrocarbons, Incorporation by SWAPCA Regulation 460 as in effect existing requirements applicable to reference, Intergovernmental relations, on June 15, 1993; and small entities. Any pre-existing Federal Lead, Nitrogen dioxide, Ozone, PSAPCA Regulation I, Article 6 as in requirements remain in place after this Particulate matter, Reporting and effect on September 17, 1993 and disapproval. Federal disapproval of the recordkeeping requirements, Sulfur Regulation III, Articles 1 and 2 as in State submittal does not affect its State oxides, and Volatile organic effect on September 17, 1993. enforceability. Moreover, EPA’s compounds. Interested parties are invited to disapproval of the submittal does not comment on all aspects of this proposed impose any new Federal requirements. 40 CFR Part 63 approval in part and disapproval in Therefore, EPA certifies that this Environmental protection, part. Comments should be submitted in disapproval action does not have a Administrative practice and procedure, triplicate, to the address listed in the significant impact on a substantial Air pollution control, Hazardous front of this Notice. Public comments number of small entities because it does substances, Intergovernmental relations, 9810 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules Reporting and recordkeeping Washington State Department of Environmental Protection, One Winter requirements. Ecology, P.O. Box 47600, PV–11, Street, 8th Floor, Boston, MA 02108. Dated: February 9, 1995. Olympia, WA 98504–7600. FOR FURTHER INFORMATION CONTACT: Chuck Clarke, FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, (617) 565–9024. Regional Administrator. Stephanie Cooper, Air Programs Branch (AT–082), EPA, Region 10, Seattle, SUPPLEMENTARY INFORMATION: [FR Doc. 95–4291 Filed 2–21–95; 8:45 am] Washington 98101, (206) 553–6917. BILLING CODE 6560±50±P Background SUPPLEMENTARY INFORMATION: See the information provided in the Direct Final On February 23, 1993, EPA published proposed rules for Economic Incentive 40 CFR Part 52 action which is located in the Rules Section of this Federal Register. Programs (58 FR 11110). The proposal [WA24±1±6519b; FRL±5143±8] set forth Economic Incentive Program Dated: January 9, 1995. (EIP) rules which could be adopted by Approval and Promulgation of State Chuck Clarke, certain ozone and carbon monoxide Implementation Plans: Washington Regional Administrator. nonattainment areas which were [FR Doc. 95–3863 Filed 2–21–95; 8:45 am] AGENCY: mandated by sections 182(g)(3), Environmental Protection BILLING CODE 6560±50±P Agency (EPA). 182(g)(5), 187(d)(3), and 187(g) of the Clean Air Act (Act) to use or consider ACTION: Proposed rule. as one of three options the use of an 40 CFR Part 52 SUMMARY: The EPA proposes to approve economic incentive program to correct the State Implementation Plan (SIP) [MA±29±01±6537; A±1±FRL±5156±9] attainment plan deficiencies. The notice revision submitted by the State of also served as interim guidance for Washington for the Northwest Air Approval and Promulgation of Air States to develop discretionary EIPs Pollution Authority (NWAPA). The SIP Quality Implementation Plans; which is allowed for any criteria revision was submitted by the State to Massachusetts; Emission Banking, pollutant in all areas. satisfy certain Federal Clean Air Act Trading, and Averaging On February 9, 1994, the requirements for the control of air AGENCY: Environmental Protection Massachusetts Department of pollution in Island, Skagit, and Agency (EPA). Environmental Protection (DEP) Whatcom Counties. In the Final Rules ACTION: Proposed rule. submitted 310 CMR 7.00 appendix B: Section of this Federal Register, the Emission Banking, Trading, and EPA is approving the State’s SIP SUMMARY: EPA is proposing the Averaging as a revision to its State revision as a direct final rule without approval of a State Implementation Plan Implementation Plan (SIP). This prior proposal because the Agency (SIP) revision submitted by the State of regulation was submitted as a views this as a noncontroversial Massachusetts. This revision establishes discretionary EIP and is described as revision amendment and anticipates no a program of emission reduction credit emission limiting due to the fact that the adverse comments. A detailed rationale (ERC) banking and trading whereby regulation places limits on total mass for the approval is set forth in the direct companies who reduce emissions below emissions, emission related parameters, final rule. If no adverse comments are the level required by State and federal or specifies levels of emission received in response to this proposed regulation can ‘‘bank’’ the surplus reductions that participating sources rule, no further activity is contemplated reductions for use at a later date or for must meet. The regulation is designed to in relation to this rule. If the EPA transfer to another party. This program utilize a federally enforceable permit receives adverse comments, the direct has been adopted as a voluntary mechanism or single-source SIP final rule will be withdrawn and all economic incentive program pursuant to revisions to ensure the enforceability of public comments received will be EPA’s interim guidance on Economic the ERCs. It replaces the former 310 addressed in a subsequent final rule Incentive Programs. The intended effect CMR 7.00 appendix B which dealt based on this proposed rule. The EPA of this action is to facilitate cost- exclusively with emissions averaging. will not institute a second comment effective compliance with other The regulation deals separately with period on this document. emission reduction requirements ERC banking and trading and with DATES: Comments on this proposed rule required by the Massachusetts SIP. This emissions averaging. Section 310 CMR must be received in writing by March action is being taken under the Clean 7.00 appendix B(3) establishes the 24, 1995. Air Act. requirements of the ERC banking and ADDRESSES: Written comments should DATES: Comments must be received on trading portion of the program by which be addressed to Montel Livingston, or before March 24, 1995. persons and companies who reduce Environmental Protection Specialist ADDRESSES: Comments may be mailed to emissions below the level required by (AT–082), Air Programs Section, at the Linda M. Murphy, Director, Air, State and federal regulation can ‘‘bank’’ EPA Regional Office listed below. Pesticides and Toxics Management the surplus reductions for use at a later Copies of the documents relevant to this Division, U.S. Environmental Protection date or for transfer to another party. The proposed rule are available for public Agency, Region I, JFK Federal Bldg., goal of this part of the program is to inspection during normal business Boston, MA 02203–2211. Copies of the encourage the creation and trading of hours at the following locations. The State submittal and EPA’s technical surplus ERCs for the purpose of offsets, interested persons wanting to examine support document are available for netting, and cost-effective compliance these documents should make an public inspection during normal without interfering with any applicable appointment with the appropriate office business hours, by appointment at the requirements concerning attainment, at least 24 hours before the visiting day. Air, Pesticides and Toxics Management reasonable further progress, or any other U.S. Environmental Protection Division, U.S. Environmental Protection applicable air pollution control Agency, Region 10, Air Programs Agency, Region I, One Congress Street, requirements. As such, 310 CMR 7.00 Section, 1200 6th Avenue, Seattle, WA 10th floor, Boston, MA and the Division Appendix B(3) is intended to promote 98101. of Air Quality Control, Department of innovative and cost-effective Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9811 approaches to emission reduction side management measures would need considered surplus during the period of requirements adopted by Massachusetts. to be approved through the source- their generation. Section 310 CMR 7.00 appendix B(4) specific SIP revision process, to the As submitted, the Massachusetts’ is the portion of the program designated extent the specific emissions banking and trading regulations deal for emissions averaging, or bubbling. quantification, compliance assurance, almost exclusively with the creation However, that portion of the regulation and public participation procedures (i.e., banking) of ERCs. However, was not part of the February 9, 1994 SIP have not already been approved by EPA appendix B(3)(d)(2)(d) of 310 CMR 7.00 submittal. Section 310 CMR 7.00 as part of the SIP. appears to allow ERCs generated from appendix B(4) of the regulation has been First, in the case where Massachusetts an action of limited duration (e.g., the reserved and is expected to be issues a preconstruction permit to the use of natural gas instead of coal at a submitted in the coming months for owner/operator of a facility seeking to powerplant for one summer season), or inclusion into the Massachusetts SIP. generate and/or use ERCs as offsets the unused portion of ERCs generated from ongoing actions (e.g., reductions EPA Evaluation and Proposed Action under their SIP-approved New Source Review (NSR) program (310 CMR 7.00 from the installation of control As submitted, 310 CMR 7.00 appendix A), these banking and trading equipment), to be banked for use in any appendix B is approvable as a non- regulations would be sufficient for the future year, including years other than generic 1 Economic Incentive Program State to set the necessary federally the one in which the credit was (EIP). This means that although these enforceable conditions. Second, at such generated. Appendix B (3)(d)(2)(d) also regulations provide the general time as Massachusetts has an EPA- specifically states that the use of such requirements for applying for and approved title V operating permit accrued credits will be limited by the implementing an approvable trade program, the State could also use those limits defined by 310 CMR 7.00, which under the EIP guidance, the use of all permits at subject sources to make the include the requirement that reductions Emission Reduction Credits (ERCs) must necessary conditions of ERC generation be surplus (i.e., not relied upon for any be made federally enforceable through a or use federally enforceable. However, applicable attainment or reasonable second step, such as the issuance of a since Massachusetts does not yet have further progress (RFP) milestone federally enforceable permit or as a demonstration). Therefore, the question case-specific SIP revision. Due to a lack an approved title V operating permit program, this is not an option. of whether accumulated reductions in of specificity in the emission emissions are surplus only arises with Alternatively, in the case where state quantification, compliance assurance, the use of such ERCs. and public participation procedures, operating permits are issued pursuant to Under 310 CMR 7.00 appendix B, these regulations do not qualify as a a program which has been approved there are essentially two eligible uses of fully generic EIP for emissions banking into the SIP as meeting EPA’s June 28, ERCs: to meet New Source Review and trading. Therefore, this approval 1989 guidance, ‘‘Requirements for the (NSR) emissions offsetting requirements does not provide Massachusetts with Preparation, Adoption, and Submittal of and to meet Reasonably Available the authority to issue documents to Implementation Plans’’ (54 FR 27274), Control Technology (RACT) limits. make ERC generation or use federally the State could also use those permits to Currently, Massachusetts’ NSR enforceable. At a minimum, EPA will set the federally enforceable conditions regulations explicitly require that still need to review and concur on any for ERC generation or use. At the time offsetting credits be consistent with documents which are issued by the DEP Massachusetts proposed changes to 310 RFP. As for using ERCs to average for ERC use. CMR 7.00 appendix B, they also between sources to meet RACT In addition to case-specific SIP proposed changes to 310 CMR 7.02: requirements, Massachusetts currently revisions, there are several available Plan Approval and Emission has no generic authority to allow mechanisms for making State Limitations to allow the State to issue to emissions averaging. Therefore, in either documents federally enforceable in the existing sources permits which would case, the use of ERCs will still need to absence of a fully generic EIP. Since meet the EPA’s June 1989 guidance. be made federally enforceable through a documents issued under any of these However, since these changes have not second step in the process which mechanisms would include public been adopted by the State, this is not a involves EPA review and concurrence. participation procedures, Region I viable option at this time. EPA’s approval of any inter-temporal would be able to ensure that replicable One issue with the approval of 310 ERC trade will be predicated on the and enforceable procedures are CMR 7.00 appendix B as an EIP State documenting how such use of incorporated as part of each trade. Other framework concerns the provisions ERCs is consistent with the RFP and than case-specific SIP revisions, the which appear to allow a source to attainment plans and areawide RACT following three mechanisms could be accumulate and potentially use ERCs, requirements applicable at that time. used for making State documents during years other than the year in Therefore, since 310 CMR 7.00 federally enforceable in the absence of which the credits were generated (i.e., appendix B deals almost exclusively a fully generic EIP. However, as inter-temporal use of credits). with the creation (i.e., banking) of ERCs, indicated in 310 CMR 7.00 appendix Historically, EPA has only considered and since this notice proposes only to B(3)(g), ERCs generated from the continuous streams of ERCs to be approve 310 CMR 7.00 appendix B as a application of mobile source or demand- eligible for banking and use on a fixed non-generic EIP, the credit tons per year basis. In the event that a accumulation provisions do not pose 1 EPA’s Emission Trading Policy Statement portion of the continuous stream of any contradiction to the requirements of (ETPS) promulgated on December 4, 1986, defines credits was not used in a given year, the Clean Air Act. ‘‘generic rule’’ as a rule that assures that emissions trades otherwise requiring case-by-case SIP that unused portion of total yearly credit Similarly, for the State to receive full revisions under sections 110(j) and 110(a)(3) of the was not normally allowed to be approval of an emissions banking and Clean Air Act will be evaluated under State accumulated for use in later years. trading EIP, including the generic procedures that are sufficiently replicable in Similarly, where emission credits were authority to issue federally enforceable operation to guarantee that emission limits produced under the rule will not interfere with the generated by actions which produced trading documents with inter-temporal timely attainment and maintenance or jeopardize only a limited stream of credits, such banking and trading, they would need to PSD increments or visibility (51 FR 43850). discrete ERCs were normally only meet an additional requirement to those 9812 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules deficiencies listed above (i.e., action. Interested parties may and environmental factors and in specification of emission quantification, participate in the Federal rulemaking relation to relevant statutory and compliance assurance, and public procedure by submitting written regulatory requirements. participation procedures). Namely, the comments to the EPA Regional office The Administrator’s decision to State would need to demonstrate that listed in the ADDRESSES section of this approve or disapprove the SIP revision any potential one-time or carry-over action. will be based on whether it meets the ERCs are or will be consistent with the requirements of sections 110(a)(2) (A)– Proposed Action applicable attainment plan or (K) and 110(a)(3) of the Clean Air Act, demonstration, reasonable further EPA is proposing approval as a non- as amended, and EPA regulations in 40 progress (RFP) plan or milestone generic economic incentive program of CFR part 51. demonstration, and surplus to any 310 CMR 7.00 appendix B, as submitted List of Subjects in 40 CFR Part 52 applicable areawide RACT emission to the EPA on February 9, 1994, as part reduction requirements. of the Massachusetts SIP. Environmental protection, Air Essentially, this means that the State Regulatory Process pollution control, Carbon monoxide, would need to submit documentation Hydrocarbons, Incorporation by showing that the SIP requires, or will This action has been classified as a reference, Intergovernmental relations, require, reductions equivalent to all Table 2 action by the Regional Nitrogen dioxide, Ozone, Reporting and potential one-time or carry-over ERCs Administrator under the procedures recordkeeping requirements. beyond those reductions required from published in the Federal Register on January 19, 1989 (54 FR 2214–2225), as Authority: 42 U.S.C. 7401–7671q. any applicable RACT, RFP, and/or Dated: January 31, 1995. attainment plan regulations, during the revised by an October 4, 1993, year(s) in which such ERCs are allowed memorandum from Michael H. Shapiro, John P. DeVillars, to be used. Alternatively, the State Acting Assistant Administrator for Air Regional Administrator, Region I. could show that their adopted RACT, and Radiation. A future document will [FR Doc. 95–4296 Filed 2–21–95; 8:45 am] RFP, and/or attainment control inform the general public of these BILLING CODE 6560±50±P strategies provide for equivalent tables. The Office of Management and reductions below the appropriate RFP or Budget has exempted this action from attainment target levels, and any review under Executive Order 12866. 40 CFR Part 63 Under the Regulatory Flexibility Act, applicable areawide RACT [AD±FRL±5160±3] requirements. For example, if a State 5 U.S.C. 600 et seq., EPA must prepare wanted to allow the use of 10 tons per a regulatory flexibility analysis National Emission Standards for typical summer day from a previous assessing the impact of any proposed or Hazardous Air Pollutants; Proposed year, the State would need to show that final rule on small entities. 5 U.S.C. 603 Standards for Hazardous Air Pollutant its adopted control strategies provide for and 604. Alternatively, EPA may certify Emissions From Wood Furniture reductions that would create a 10 ton that the rule will not have a significant Manufacturing Operations per day excess below the appropriate impact on a substantial number of small RFP or attainment target level and entities. Small entities include small AGENCY: Environmental Protection RACT requirements. businesses, small not-for-profit Agency (EPA). Additionally, appendix B(3)(g)(5) of enterprises, and government entities ACTION: Extension of comment period. the rule generally allows the bank to with jurisdiction over populations of SUMMARY: The EPA is extending the retain credits without confiscation from less than 50,000. period for public comment regarding the the State. However, the regulations also SIP approvals under section 110 and Agency’s proposed standards for provide the State with the authority to subchapter I, part D of the CAA do not hazardous air pollutant emissions from make adjustments, including create any new requirements, but confiscation, to banked credits if needed simply approve requirements that the wood furniture manufacturing for Rate-of-Progress (ROP), Reasonable State is already imposing. Therefore, operations. Further Progress (RFP), or attainment because the federal SIP-approval does DATES: Written comments on the requirements, as stated in appendix not impose any new requirements, I proposed rule must be received on or B(3)(l). According to appendix B(3)(l), certify that it does not have a significant before March 23, 1995. Written the State would need to revise the SIP impact on any small entities affected. comments pertaining only to the to take such action. EPA approves these Moreover, due to the nature of the proposed test Method 311 must be provisions. federal-state relationship under the received on or before April 24, 1995. Finally, as mentioned above, although CAA, preparation of a regulatory Comments should be submitted in subsection (4) of the regulation has been flexibility analysis would constitute duplicate, and on computer disk, if reserved for the emissions averaging federal inquiry into the economic possible. (bubbling) provisions, it was not reasonableness of state action. The CAA ADDRESSES: Send comments to: Air and submitted as part of the February 10, forbids EPA to base its actions Radiation Docket and Information 1994 submittal. Therefore, until such concerning SIPs on such grounds. Center (6102), Attention, Docket No. A– time as a separate SIP revision allowing Union Electric Co. v. U.S. E.P.A., 427 93–10, U.S. Environmental Protection emissions averaging is approved, no U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. Agency, 401 M Street, SW., Washington, generic emissions averaging would be 7410 (a)(2). DC 20460. allowed by approval of these rules. Nothing in this action should be Docket. Docket No. A–93–10, Based on the issues discussed above, construed as permitting or allowing or containing supporting information used EPA is proposing to approve this establishing a precedent for any future in developing the proposed standards, is revision to the Massachusetts SIP. EPA request for revision to any State available for public inspection and is soliciting public comments on the implementation plan. Each request for copying between 8:30 a.m. and 5:00 issues discussed in this proposal or on revision to the State implementation p.m., Monday through Friday, at the other relevant matters. These comments plan shall be considered separately in EPA’s Air and Radiation Docket and will be considered before taking final light of specific technical, economic, Information Center, Waterside Mall, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9813 Room M–1500, 1st Floor, 401 M Street, 40 CFR Parts 63 and 430 and Stream Improvement (NCASI), SW., Washington, DC 20460. Telephone items II–I–77 through II–I–79, IV–D–8, [FRL±5156±5] (202) 260–7548. FAX (202) 260–4400. IV–D1–20 through IV–D1–22, IV–J–1 The proposed regulatory text, proposed RIN 2060±AD03 and 2040±AB53 through IV–J–4, IV–J–6 through IV–J–14, test Method 311 and other materials and IV–J–16; (2) a 10-mill study related to this rulemaking are available Effluent Limitations Guidelines, conducted by International Paper, items for review in the docket. A reasonable Pretreatment Standards, and New IV–J–18 through IV–J–27; (3) a 5-mill Source Performance Standards: Pulp, fee may be charged for copying. study conducted by the Texas Paper Paper, and Paperboard Category; Industry Environmental Committee, FOR FURTHER INFORMATION CONTACT: National Emission Standards for items II–I–13 to II–I–18; (4) a condensate For information concerning the Hazardous Air Pollutants for Source study, items IV–D1–16 and IV–D1–18. proposed standards, contact Dr. Category: Pulp and Paper Production NCASI prepared summaries of their testing program in NCASI technical Madeleine Strum at (919) 541–2383, AGENCY: Environmental Protection bulletins, items IV–D1–29, IV–D1–29A, Coatings and Consumer Products Group, Agency (EPA). IV–D1–31, IV–D1–33 through IV–D1–35, Emission Standards Division (MD–13), ACTION: Notice of data availability. U.S. Environmental Protection Agency, IV–D1–38, IV–D1–39, IV–D1–41, and Research Triangle Park, North Carolina SUMMARY: On December 17, 1993, EPA IV–D1–42. EPA has also prepared draft 27711. For further information proposed standards to reduce the summaries of the NCASI and Texas concerning the proposed test Method discharge of water pollutants and studies, items IV–A–2 and IV–A–3, respectively. 311, contact Mr. Gary McAlister at (919) emissions of hazardous air pollutants EPA is not soliciting comment on the 541–1062, Source Categorization Group from the pulp, paper, and paperboard industry (58 FR 66078). This action new data at this time so that the public B, Emissions Monitoring and Analysis will have an expanded opportunity to Division (MD–19), U.S. Environmental announces the availability of additional data that EPA will consider for the review the data. The reports added to Protection Agency, Research Triangle the Air Docket consist of multi-volume Park, North Carolina 27711. promulgation of hazardous air pollutant emission standards for this industry. test reports from numerous testing SUPPLEMENTARY INFORMATION: On programs and summaries of two of the DATES: Comments are not solicited at testing programs. The Agency will December 6, 1994, EPA published this time. proposed standards to limit emissions of solicit comment on these data in a ADDRESSES: The data being announced hazardous air pollutants (HAP) from subsequent notice. today has been placed in Air Docket A– existing and new wood furniture EPA also anticipates that additional 92–40. The docket is available for public data regarding both air emissions and manufacturing operations located at inspection and copying between 8 a.m. major sources. The proposed standards effluent discharges will be published and 4 p.m., Monday through Friday, at after today’s notice. An additional implement section 112(d) of the Clean the EPA Air Docket Section, Waterside announcement will be posted at a later Air Act as amended, which require the Mall, room M1500, U.S. Environmental date presenting further data and Administrator to regulate emissions of Protection Agency, 401 M Street SW., soliciting comments of all announced HAP listed in section 112(b) of the Act. Washington, DC 20460. A reasonable fee data. The EPA also proposed Method 311, to may be charged for copying. Dated: February 13, 1995. be used to assist in demonstrating FOR FURTHER INFORMATION CONTACT: Mr. Richard D. Wilson, compliance with the proposed emission Mark Najarian, Waste and Chemical limitations. Acting Assistant Administrator for Air and Processes Group, Emission Standards Radiation. Division (MD–13), U.S. Environmental The comment period was scheduled [FR Doc. 95–4293 Filed 2–21–95; 8:45 am] to close on February 21, 1995. Industry Protection Agency, Office of Air Quality BILLING CODE 6560±50±P has requested a 60-day extension of the Planning and Standards, Research comment period to complete testing of Triangle Park, North Carolina, 27711, the proposed test Method 311. In telephone number (919) 541–5393. 40 CFR Part 81 response to this request, the Agency is SUPPLEMENTARY INFORMATION: On December 17, 1993 (58 FR 66078), EPA extending the comment period for the [A±1±FRL±5156±8] proposed Method 311 to April 24, 1995. proposed standards to reduce the The comment period for the proposed discharge of water pollutants and Clean Air Act Promulgation of rule, however, will be extended by only emissions of hazardous air pollutants Extension of Attainment Date for 30 days, and is thus extended to March from the pulp, paper, and paperboard Ozone Nonattainment Area; Maine 23, 1995. All interested parties are industry. The period for receiving AGENCY: Environmental Protection encouraged to submit comments prior to public comments on the proposed rule Agency (EPA). that date. ended on April 18, 1994; however, EPA stated in the preamble to the proposed ACTION: Proposed rule. Dated: February 16, 1995. rule that various industry groups were Mary D. Nichols, collecting air emissions data that would SUMMARY: EPA is proposing to extend by Assistant Administrator for Air and not be available until after the comment one year the attainment date for the Radiation. period and that the Agency would still Hancock and Waldo Counties, Maine [FR Doc. 95–4454 Filed 2–21–95; 8:45 am] consider that data for the promulgation ozone nonattainment area, a marginal nonattainment area. This proposal is BILLING CODE 6560±50±M of the air emission standards. The additional data being announced based in part on monitored air quality today includes the following items readings for the national ambient air located in Air Docket A–92–40: (1) A quality standard for ozone during 1993. 16-mill study conducted by the National DATES: Comments on this proposal must Council of the Paper Industry for Air be received by March 24, 1995. 9814 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules ADDRESSES: Comments on this proposal attainment date, to determine whether improved greatly. Since 1991 the site should be submitted to: Linda M. ozone nonattainment areas attained the has not had any exceedances of the Murphy, Director, Air, Pesticides and NAAQS. For ozone, EPA determines NAAQS. Toxics Management Division, U.S. attainment status on the basis of the EPA is proposing that the Environmental Protection Agency, expected number of exceedances of the requirements for a one-year extension of Region I, JFK Federal Bldg., Boston, MA NAAQS over the three-year period up the attainment date have been fulfilled 02203. Copies of the State submittal and to, and including, the attainment date. as follows: (i) The State requested a one- EPA’s technical support document are See General Preamble, 57 FR 13506. In year extension in a letter, dated April available for public inspection during the case of ozone marginal 11, 1994, from Governor McKernan to normal business hours, by appointment nonattainment areas, the three-year EPA Region I Administrator, John at the Air, Pesticides and Toxics period is 1991–93. CAA section Devillars; (ii) in that same letter Maine Management Division, U.S. 181(b)(2)(A) further states that, for areas certified that the State is implementing Environmental Protection Agency, classified as marginal, moderate, or the EPA-approved SIP; and (iii) the area Region I, One Congress Street, 10th serious, if the Administrator determines has monitored no exceedance during floor, Boston, MA and the Bureau of Air that the area did not attain the standard 1993. Quality Control, Department of by its attainment date, the area must be Accordingly, EPA is proposing to Environmental Protection, 71 Hospital reclassified upwards. establish a new attainment date for the Street, Augusta, ME 04333 However, CAA section 181(a)(5) Hancock and Waldo Counties, Maine FOR FURTHER INFORMATION CONTACT: provides an exemption from these bump area as November 15, 1994. If this Richard P. Burkhart, Air, Pesticides and up requirements. Under this exemption, proposal is finalized as proposed, the Toxics Management Division, U.S. EPA may grant up to two one-year area would remain a marginal ozone Environmental Protection Agency, extensions of the attainment date under nonattainment area, and the Region I, JFK Federal Bldg., Boston, MA specified conditions: requirements for EPA to determine by 02203. Phone: 617–565–3244. Upon application by any State, the May 15, 1994 whether the area has SUPPLEMENTARY INFORMATION: Administrator may extend for 1 additional reached attainment or whether the area year (hereinafter referred to as the ‘‘Extension should be reclassified upwards would CAA Requirements and EPA Actions Year’’) the date specified in table 1 of be extended by one year. Instead, under Concerning Designation and paragraph (1) of this subsection if— section 181(b)(2) of the CAA, EPA Classification (A) the State has complied with all would determine by May 15, 1995 requirements and commitments pertaining to Section 107(d)(4) of the Clean Air Act the area in the applicable implementation whether the area has met its revised as amended in 1990 (CAA) required the plan, and attainment date based on air quality States and EPA to designate areas as (B) no more than 1 exceedance of the data during the years 1992–94, except attainment, nonattainment, or national ambient air quality standard level that EPA would consider a second one- unclassifiable for ozone as well as other for ozone has occurred in the area in the year year extension if requested by the State. preceding the Extension Year. pollutants for which national ambient Solicitation of Public Comment air quality standards (NAAQS) have No more than 2 one-year extensions may be issued under this paragraph for a single As described above, EPA is proposing been set. Section 181(a)(1) (table 1) nonattainment area. required that ozone nonattainment areas to extend the attainment date of the be classified as marginal, moderate, EPA interprets this provision to Hancock and Waldo Counties, Maine serious, severe, or extreme, depending authorize the granting of a one-year ozone nonattainment area for one year, on their air quality. extension under the following, until November 15, 1994. Public In a series of Federal Register minimum, conditions: (i) The State comment is solicited on this proposal. documents, EPA completed this process requests a one-year extension; (ii) all All comments received by the close of by designating and classifying all areas requirements and commitments in the the public comment period will be of the country for ozone. See, e.g., 56 FR EPA-approved SIP for the area have considered in the development of EPA’s 58694 (Nov. 6, 1991); 57 FR 56762 (Nov. been complied with; and (iii) the area final decision. has no more than one measured 30, 1992); 59 FR 18967 (April 21, 1994). Regulatory Process Areas designated nonattainment for exceedance of the NAAQS during the ozone are required to meet attainment year that includes the attainment date Under E.O. 12866, this action has dates specified under the Act. For areas (or the subsequent year, if a second one- been exempted from the Office of classified marginal through extreme, the year extension is requested). Management and Budget’s review. Under the Regulatory Flexibility Act, attainment dates range from November EPA Action 15, 1993 through November 15, 2010. A 5 U.S.C. 600 et. seq., EPA must prepare discussion of the attainment dates is EPA is today proposing to grant a one- a regulatory flexibility analysis found in 57 FR 13498 (April 16, 1992) year extension of the attainment date for assessing the impact of any proposed or (the General Preamble). the Hancock and Waldo Counties, final rule on small entities. 5 U.S.C. 603 The Hancock and Waldo Counties, Maine nonattainment area. Air Quality and 604. Alternatively, EPA may certify Maine area was designated monitors for this area revealed two that the rule will not have a significant nonattainment and classified marginal exceedances of the ozone National impact on a substantial number of small for ozone pursuant to 56 FR 58694 (Nov. Ambient Air Quality Standard during entities. Small entities include small 6, 1991). By this classification, its the three year period from 1991 to 1993. businesses, small not-for-profit attainment date became November 15, Both exceedances occurred in 1991, at enterprises, and government entities 1993. a monitor located in Hancock County at with jurisdiction over populations of a site operated by the National Park less than 50,000. Attainment date CAA Requirements and EPA Actions Service. The site had data capture extensions under section 181(a)(5) of the Concerning Meeting the Attainment problems in both 1991 and 1992. In CAA do not create any new Date 1993 the Maine Department of requirements; therefore, I certify that Section 181(b)(2)(A) requires the Environmental Protection took over this action will not have a significant Administrator, within six months of the maintenance of the site and data capture impact on small entities. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9815 List of Subjects in 40 CFR Part 81 Manager (PM) 19, Registration Division 2. A 2-year rat feeding/carcinogenicity Environmental protection, Air (7505C), Environmental Protection study that was negative for carcinogenic pollution control, National parks, Agency, 401 M St., SW., Washington, effects under the conditions of the study Wilderness areas. DC 20460. Office location and telephone and had a NOEL of 100 ppm (5.7 mg/ number: Rm. 207, CM #2, 1921 Jefferson kg/bwt in males and 7.6 mg/kg/bwt in Authority: 42 U.S.C. 7401–7671q. Davis Hwy., Arlington, VA 22202, (703)- females) for noncarcinogenic effects, Dated: January 25, 1995. 305-6386. which included decreased body weight John P. DeVillars, SUPPLEMENTARY INFORMATION: On its gain in females at 300 ppm and Regional Administrator, Region I. own initiative and pursuant to section increased thyroid lesions in males at [FR Doc. 95–4295 Filed 2–21–95; 8:45 am] 408(e) of the Federal Food, Drug, and 300 ppm and females at 900 ppm. BILLING CODE 6560±50±P Cosmetic Act (FFDCA), 21 U.S.C. 3. A 1-year dog feeding study that 346a(e), the Agency established in 40 showed a NOEL of 1,250 ppm (41/mg/ CFR 180.472 a time-limited tolerance for kg/bwt). 4. A 2-year mouse carcinogenicity 40 CFR Part 180 the residues of imidacloprid on dried study that was negative for carcinogenic [OPP±300379; FRL±4934±8] hops at 3.0 parts per million (ppm) (see effects under the conditions of the study the Federal Register of June 28, 1994 RIN 2070±AC18 and had a NOEL of 1,000 ppm (208 mg/ (59 FR 33204)). EPA established this kg/day). Extended Tolerance on Dried Hops for tolerance because EPA had granted a There is no cancer risk associated Imidacloprid petition for an emergency exemption with exposure to this chemical. under section 18 of the Federal Imidacloprid has been classified as a AGENCY: Environmental Protection Insecticide, Fungicide and Rodenticide ‘‘Group E’’ (no evidence of Agency (EPA). Act, 7 U.S.C. 136p, for the use of carcinogenicity for humans) carcinogen ACTION: Proposed rule. imidacloprid on hops in the States of by the OPP Reference Dose (RfD) Washington, Oregon, and Idaho; SUMMARY: EPA proposes to extend the Committee. imidacloprid is used in other countries The reference dose (RfD), based on the tolerance for residues of the insecticide which export hops to the United States; 2-year rat feeding/carcinogenic study 1-[(6-chloro-3-pyridinyl) methyl]-N- and the database for imidacloprid is with a NOEL of 5.7 mg/kg/bwt and 100- nitro-2-imidazolidinimine and its relatively complete. At that time, a third fold uncertainty factor, is calculated to metabolites (common name field residue trial was outstanding. be 0.057 mg/kg/bwt. The theoretical ‘‘imidacloprid’’) in or on dried hops at Since then, the Interregional Research maximum residue contribution (TMRC) 3.0 parts per million (ppm). On its own Project No. 4 (IR-4) has submitted a from the proposed tolerances is inititative, EPA proposes to extend the pesticide petition to the Agency 0.000984 mg/kg/bwt/day and utilizes tolerance to allow time to review a requesting that a tolerance be 2% percent of the ADI. petition from the Interregional Research established in or on dried hops. This The nature of the residue in plants Project No. 4 (IR-4). petition is currently in review. The and livestock is adequately understood. DATES: Written comments, identified by Agency may not complete its review of Spent hops are not considered a poultry the document control number, [OPP- the IR-4 petition before the time-limited feed item; therefore, secondary 300379], may be submitted on or before tolerance would expire. EPA does not imidacloprid tolerances for poultry and March 24, 1995. believe that its risk assessment will eggs are not required. The analytical ADDRESSES: Comments may be significantly change as a result of the IR- method is a common moiety method for submitted to: Public Docket and 4 petition. Therefore, the Agency is imidacloprid and its metabolites Freedom of Information Section, Field proposing to extend this tolerance for an containing the 6-chloropyridinyl moiety Operations Division (7506C), Office of additional 1-year period, i.e., to June 28, in plants using a permanganate Pesticide Programs, 401 M St., SW., 1996. oxidation, silyl derivatization, and Washington, DC 20604. In person, bring In the Federal Register of November capillary GC-MS-selective ion comments to: Rm. 1132, CM #2, 30, 1994 (59 FR 61278), EPA revised 40 monitoring. The magnitude of the Arlington, VA 22202. CFR 180.472 and removed the time- residue crop field trial data for Information submitted as a comment limited designation for commodities imidacloprid on hops indicates that concerning this document may be listed in paragraph (a). The listing for residues of total imidacloprid will not claimed confidential by marking any ‘‘Hops, dried’’ at 3.0 ppm inadvertently exceed the proposed tolerance when the part or all of that information was left in paragraph (a) in the new list formulations are used as directed. The ‘‘Confidential Business Information’’ of commodities without a time-limited extension for this use will expire on (CBI). Information so marked will not be designation. Hops should have retained June 28, 1996. disclosed except in accordance with the time-limited designation, June 28, This pesticide is considered useful for procedures set forth in 40 CFR part 2. 1995, and been moved to a new the purposes for which the tolerances A copy of the comment that does not paragraph. This change was made by a are sought. Based on the above contain CBI must be submitted for technical amendment published in the information considered by the Agency, inclusion in the public record. Federal Register of February 22, 1995. the tolerance established by amending Information not marked confidential All relevant materials have been 40 CFR part 180 would protect the may be disclosed publicly by EPA evaluated. The toxicology data public health. Therefore, it is proposed without prior notice. All written considered in support of the tolerance that the tolerance be established as set comments will be available for public include: forth below. Any person who has inspection in Rm. 1132 at the address 1. A three generation rat reproduction registered or submitted an application given below, from 8 a.m. to 4 p.m., study that showed a NOEL of 100 ppm for registration of a pesticide, under Monday through Friday, excluding legal (8 mg/kg/bwt); rat and rabbit teratology FIFRA, as amended, which contains any holidays. studies were negative at doses up to 30 of the ingredients listed herein, may FOR FURTHER INFORMATION CONTACT: By mg/kg/bwt and 24 mg/kg/bwt, request within 30 days after publication mail: Dennis H. Edwards, Jr., Product respectively. of this document in the Federal Register 9816 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules that this rulemaking proposal be Parts per Division (7505W), Environmental referred to an Advisory Committee in Commodity million Protection Agency, 401 M St., SW., accordance with FFDCA section 408(e). Washington, DC 20460. Office location and telephone number: Sixth Floor, Interested person are invited to Hops, dried ...... 3.0 submit written comments on the Crystal Station #1, 2800 Jefferson Davis proposed regulation. Comments must Hwy., Arlington, VA 22202, (703)-308- 8783. bear notation indicating the document [FR Doc. 95–4185 Filed 2–21–95; 8:45 am] control number, [OPP-300379]. All SUPPLEMENTARY INFORMATION: The BILLING CODE 6560±50±F written comments filed in response to Interregional Research Project No. 4 (IR- this document will be be available in 4), New Jersey Agricultural Experiment the Public Docket and Freedom of 40 CFR Part 180 Station, P.O. Box 231, Rutgers Information Section, at the addressed University, New Brunswick, NJ 08903, given above from 8 a.m. to 4 p.m, [PP 2E4071/P603; FRL 4936±2] has submitted pesticide petition (PP) Monday through Friday, except legal RIN 2070±AC18 2E4071 to EPA on behalf of the holidays. Agricultural Experiment Station of Methyl Anthranilate; Exemptions from Washington. Pesticide petition 2E4071 Pursuant to the requirements of the the Requirement of a Tolerance requests that the Administrator, Regulatory Flexibility Act (Pub. L. 96- pursuant to section 408(e) of the Federal 354, 94 Stat. 1164, 5 U.S.C. 601-612), AGENCY: Environmental Protection Food, Drug and Cosmetic Act (FFDCA), the Administrator has determined that Agency (EPA). 21 U.S.C. 346a(e), establish exemptions regulations establishing exemption from ACTION: Proposed rule. from the requirement of a tolerance for tolerance requirements do not have a residues of the biochemical methyl significant economic impact on a SUMMARY: EPA proposes to establish anthranilate in or on the raw substantial number of small entities. A exemptions from the requirement of a agricultural commodities blueberry, certification statement to this effect was tolerance for residues of the biochemical cherry, and grape. Methyl anthranilate published in the Federal Register of methyl anthranilate in or on the raw will be applied as a dilute foliar spray May 4, 1981 (46 FR 24950). agricultural commodities blueberry, to these crops to repel birds and reduce cherry, and grape when the pesticide is List of Subjects in 40 CFR Part 180 bird depredation. Methyl anthranilate is used in accordance with good a natural constituent of food that can be Administrative practice and agricultural practices. The Interregional found in grape and citrus. Methyl procedure, Agricultural commodities, Research Project No. 4 (IR-4) requested anthranilate is also synthetically Pesticides and pests, Reporting and these exemptions in a petition produced and used in the purified form recordkeeping requirements. submitted to EPA. (not less than 99 percent pure) as a DATES: Comments, identified by the Dated: February 10, 1995. flavoring agent in beverages, ice cream, document control number, [PP 2E4071/ candy, baked goods, gelatins, puddings, Stephen L. Johnson, P603], must be received on or before and chewing gum. The synthetic March 24, 1995. Director, Registration Division, Office of product mimics the chemical structure Pesticide Programs. ADDRESSES: By mail, submit written and function of the natural plant comments to: Public Response and constituent. Methyl anthranilate is Therefore, it is proposed that chapter Program Resources Branch, Field listed by the Food and Drug I of title 40 of the Code of Federal Operations Division (7506C), Office of Administration (FDA) as a flavoring Regulations be amended as follows: Pesticide Programs, Environmental compound under 21 CFR 182.60, and is Protection Agency, 401 M St., SW, classified generally recognized as safe PART 180Ð[AMENDED] Washington, DC 20460. In person, bring (GRAS) by the Expert Panel of the comments to: Rm. 1132, CM #2, 1921 Flavor and Extract Manufacturer’s 1. The authority citation for part 180 Jefferson Davis Hwy., Arlington, VA Association (FEMA). Registrants who continues to as follows: 22202. Information submitted as a produce end-use products for this active comment concerning this notice may be Authority: 21 U.S.C. 346a and 371. ingredient that are intended for use on claimed confidential by marking any blueberry, cherry, or grape will be part or all of that information as required to use methyl anthranilate 2. In 180.472, by revising paragraph ‘‘Confidential Business Information’’ (d), to read as follows: produced to meet or exceed U.S. Food (CBI). Chemical Codex and U.S. § 180.472 1-[(6-Chloro-3-pyridinyl) methyl]- Information so marked will not be Pharmacopoeia specifications. N-nitro-2-imidazolidinimine; tolerances for disclosed except in accordance with Residue data submitted with the residues. procedures set forth in 40 CFR part 2. petition indicate that residues of methyl A copy of the comment that does not anthranilate would not exceed 35 parts * * * * * contain CBI must be submitted for per million (ppm) on blueberry, cherry, inclusion in the public record. and grape from the proposed use. The (d) A time-limited tolerance, to expire Information not marked confidential incremental dietary exposure to methyl June 28, 1996, is established permitting may be disclosed publicly by EPA anthranilate is not significant compared the combined residues of the insecticide without prior notice. All written to naturally occurring levels, or levels 1-[(6-chloro-3-pyridinyl)methyl]-N- comments will be available for public resulting from use of the chemical as a nitro-2-imidazolidinimine and its inspection in Rm. 1132 at the address flavoring agent. For example, naturally metabolites containing the given above, from 8 a.m. to 4 p.m., occurring levels of methyl anthranilate chloropyridinyl moiety, all expressed as Monday through Friday, excluding legal are reported at 33 ppm in concord 1-[(6-chloro-3-pyridinyl)methyl]-N- holidays. grapes, and the use of methyl nitro-2-imidazolidinimine, in or on the FOR FURTHER INFORMATION CONTACT: By anthranilate as a flavoring agent results following raw agricultural commodity: mail: Hoyt Jamerson, Registration in residues of approximately 30 ppm in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9817 baked goods and hard candies and Interested persons are invited to 354, 94 Stat. 1164, 5 U.S.C. 601-612), almost 400 ppm in chewing gum. submit written comments on the the Administrator has determined that Methyl anthranilate is hydrolyzed in proposed regulation. Comments must regulations establishing new tolerances the small intestine to form an alcohol bear a notation indicating the document or raising tolerance levels or and either anthranilic acid or an N-alkyl control number, [PP 2E4071/P603]. All establishing exemptions from tolerance anthranilic acid. Anthranilic acid is a written comments filed in response to requirements do not have a significant common human metabolite that is this petition will be available in the economic impact on a substantial excreted in the urine or converted to Public Response and Program Resources number of small entities. A certification anthranilic acid glucuronide prior to Branch, at the address given above from statement to this effect was published in excretion. 8 a.m. to 4 p.m., Monday through the Federal Register of May 4, 1981 (46 The available information is sufficient Friday, except legal holidays. FR 24950). to demonstrate that there are no Under Executive Order 12866 (58 FR List of Subjects in 40 CFR Part 180 foreseeable human health hazards likely 51735, October 4, 1993), the Agency to arise from dietary exposure resulting must determine whether the regulatory Environmental protection, from the proposed use of methyl action is ‘‘significant’’ and therefore Administrative practice and procedure, anthranilate on blueberry, cherry, and subject to all the requirements of the Agricultural commodities, Pesticides grape. Executive Order (i.e., Regulatory Impact and pests, Reporting and recordkeeping There is also no reasonable Analysis, review by the Office of requirements. expectation of secondary residues in Management and Budget (OMB)). Under meat, milk, poultry, or eggs from the section 3(f), the order defines Dated: February 9, 1995. proposed use. ‘‘significant’’ as those actions likely to No enforcement actions based on the Stephen L. Johnson, level of residues in food are expected. lead to a rule (1) having an annual effect Director, Registration Division, Office of Therefore, the requirement for an on the economy of $100 million or Pesticide Programs. more, or adversely and materially analytical method for enforcement PART 180Ð[AMENDED] purposes is not applicable to the affecting a sector of the economy, exemption from the requirement of a productivity, competition, jobs, the environment, public health or safety, or Therefore, it is proposed that 40 CFR tolerance. part 180 be amended as follows: Based on the information and data State, local or tribal governments or considered, the Agency concludes that communities (also known as 1. The authority citation for part 180 tolerances are not needed to protect the ‘‘economically significant’’); (2) creating continues to read as follows: public health. Therefore, it is proposed serious inconsistency or otherwise Authority: 21 U.S.C. 346A and 371. that the exemptions from the interfering with an action taken or 2. In Subpart D, by adding new requirement of a tolerance be planned by another agency; (3) § 180.1143, to read as follows: established as set forth below. materially altering the budgetary Any person who has registered or impacts of entitlement, grants, user fees, § 180.1143 Methyl anthranilate; exemption submitted an application for registration or loan programs; or (4) raising novel from the requirement of a tolerance. of a pesticide, under the Federal legal or policy issues arising out of legal Methyl anthranilate, a biochemical Insecticide, Fungicide, and Rodenticide mandates, the President’s priorities, or pesticide, is exempt from the Act (FIFRA) as amended, which the principles set forth in this Executive requirement of a tolerance when used in contains any of the ingredients listed Order. accordance with good agricultural herein, may request within 30 days after Pursuant to the terms of this practices on the following raw publication of this notice in the Federal Executive Order, EPA has determined agricultural commodities: Blueberry, Register that this rulemaking proposal that this rule is not ‘‘significant’’ and is cherry, and grape. be referred to an Advisory Committee in therefore not subject to OMB review. accordance with section 408(e) of the Pursuant to the requirements of the [FR Doc. 95–4306 Filed 2–16–95; 2:39 pm] FFDCA. Regulatory Flexibility Act (Pub. L. 96- BILLING CODE 6560±50±F 9818 Notices Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 This section of the FEDERAL REGISTER Forest. Written comments and The Forest Service proposes to harvest contains documents other than rules or suggestions concerning the scope of the approximately 2.1 million board feet of proposed rules that are applicable to the analysis should be sent to Lawrence A. timber by salvaging fire-killed trees and public. Notices of hearings and investigations, Froberg, District Ranger, Libby Ranger dying trees on approximately 350 acres committee meetings, agency decisions and District, 12557 US Hwy 37 N, Libby, of forest land outside riparian protection rulings, delegations of authority, filing of petitions and applications and agency Montana, 59923. areas. Only trees that were killed, or are statements of organization and functions are FOR FURTHER INFORMATION CONTACT: expected to die as a result of the fires, examples of documents appearing in this Leanne Marten, NEPA Coordinator, would be harvested. The proposal section. Libby Ranger District. Phone: (406) 293– includes prescribed burning of about 67 7773. acres to reduce fuel loads in harvested SUPPLEMENTARY INFORMATION: During the areas. An estimated 263 acres of DEPARTMENT OF AGRICULTURE night of August 14–15, 1994, a lightning proposed salvage units would be storm started 207 fires on the Kootenai planted with conifer seedlings to help Forest Service National Forest in northwest Montana. meet desired conditions for species diversity. The Forest Service also Scenery Fire Recovery; Kootenai Several of these fires occurred on the proposes to scarify and revegetate an National Forest, Lincoln County, MT Libby Ranger District. The Scenery Fire Recovery EIS is being prepared in estimated 4 miles of existing non- AGENCY: Forest Service, USDA. response to conditions resulting from essential roads to reduce sediment and ACTION: Notice of intent to prepare an one of the largest of these fires, the 4700 water yields, and improve grizzly bear environmental impact statement. acre Scenery Face Fire. An habitat security. Non-essential roads are interdisciplinary landscape analysis those that are no longer considered a SUMMARY: The Scenery Face Fire burned team is using an ecosystem based necessary part of the permanent approximately 4700 acres of Kootenai approach to assess the fires affects and transportation system. Additional road National Forest system lands in the late identify management opportunities that access restrictions may be needed to summer of 1994. The Libby Ranger could be implemented to move the provide adequate security areas for District on the Kootenai National Forest postfire landscapes toward a desired grizzly bears, however identification of intends to prepare an Environmental ecological condition. specific road closure proposals is Impact Statement (EIS) to assess and Burn intensities in the Scenery pending further analysis. disclose the environmental effects of wildfire varied considerably. Within the The decision area includes a portion opportunities designed to recover fire perimeters approximately 2200 of the Cabinet Face East Roadless Area economic value of burned timber, acres burned at moderate intensity #671. Approximately 330 acres of timber reduce fuel accumulations, rehabilitate (average 55% tree mortality) and salvage and approximately 250 acres of existing sediment sources and protect approximately 2500 acres burned at low reforestation would occur within the long-term soil productivity. These intensity (average 25% mortality). The roadless area. No road construction is objectives would be accomplished fire burned within the Cabinet Face East proposed within the roadless area. No through salvage harvest of fire-killed Roadless Area #671. proposed activities are located in areas trees; reforestation of some harvested The Scenery decision area contains considered for inclusion to the National and severely burned areas; fuels approximately 3,300 acres within the Wilderness System as recommended by reduction in harvested areas and Kootenai National Forest in Lincoln the Kootenai National Forest Plan. restoration of non-essential roads. The County, Montana. The legal location of Due to the high level of tree mortality Scenery decision area is located the decision area is as follows: Sections in proposed harvest units, most approximately 1 air mile west of Libby, or portions of Sections 14, 15, 16, 17, harvested areas would resemble clearcut Montana. 18, 19, 20, 21, 22, 24, 26, 27, 28, 29, and or seed-tree silvicultural methods. Only The proposal’s actions to salvage fire- 30 and Township 31 North, Range 32 those live trees which must be cut to killed trees and reforest burned areas, West; Sections or portions of Sections facilitate logging fire-killed trees would reduce fuels, and restore roads are being 24 and 25 of Township 31 North, Range be harvested. Timber harvest would be considered together because they 33 West; Principle Meridian. The land done by skyline and helicopter yarding, represent either connected or in and adjacent to the decision area is designed to result in minimal ground cumulative actions as defined by the primarily federal ownership under the disturbance, risk of erosion, and Council on Environmental Quality (40 jurisdiction of the Forest Service with compaction. CFR 1508.25). The EIS will tier to the some intermixed private ownership. The Kootenai National Forest Land Kootenai National Forest Land and and Resource Management Plan Resource Management Plan and Final Proposed Action provides overall management objectives EIS of September 1987, which provides The primary purpose of the project is in individual delineated management overall guidance for achieving the to recover valuable timber products areas (MA’s). The decision area contains desired forest condition of the area. from trees burned by the Scenery Face four MA’s: 11, 12, 14 and 19. Briefly DATES: Written comments and wildfire that occurred in 1994 (while described, MA 11 is managed to suggestions should be received by no maintaining ecological processes), with maintain or enhance the winter-range later than March 24, 1995. the secondary benefit of reducing fuel habitat effectiveness for big-game ADDRESSES: The Responsible Official is loads. Actions are also proposed to species and produce a programmed Lawrence A. Froberg, District Ranger, enhance watershed recovery and yield of timber. MA 12 is managed to Libby Ranger District, Kootenai National improve grizzly bear habitat security. maintain or enhance the summer-range Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9819 habitat effectiveness for big-game Decisions To Be Made draft EIS in the Federal Register. The species and produce a programmed The Libby District Ranger will decide comment period on the draft EIS will be yield of timber. MA 14 focuses on the following: 45 days from the date the EPA publishes maintaining or enhancing grizzly bear Should dead and imminent dead trees the Notice of Availability in the Federal habitat, reducing grizzly/human within fire areas be harvested and if so Register. conflicts, assisting in the recovery of the how and where, The final EIS is scheduled to be grizzly bear, realizing a programmed What amount, type, and distribution completed by September, 1995. In the yield of timber production, and of watershed restoration projects, final EIS, the Forest Service is required providing for the maintenance or including road restoration, would be to respond to comments and responses enhancement of other wildlife species, implemented, received during the comment period especially big game. MA 19 is managed What burned areas need to be that pertain to the environmental to protect soil stability and water quality replanted, and consequences discussed in the draft EIS by maintaining the vegetation in a If Forest Plan exception or and applicable laws, regulations, and healthy condition and minimizing amendments are necessary to proceed policies considered in making a surface disturbance. Timber salvage and with the Proposed Action within the decision regarding the proposal. fuels reduction is proposed in MA 12. decision area. Reviewer’s Obligations Preliminary Issues Public Involvement and Scoping The Forest Service believes, at this Several preliminary issues of concern An open house will be scheduled in early stage, it is important to give have been identified by the Forest March, to provide an opportunity for the reviewers notice of several court rulings Service. These issues are briefly public to review the proposed action. related to public participation in the described below: Consultation with appropriate State and environmental review process. First, • Water Quality—Streams in the Federal agencies will be initiated. reviewers of draft environmental review decision area have been impacted by the Preliminary effects analysis indicated of the proposal so that it is meaningful Scenery Face wildfire. How would the that the wildfires may significantly and alerts an agency to the reviewer’s proposed action affect water yield, affect the quality of the human position and contentions. Vermont sediment production, stream stability, environment, and fire recovery activities Yankee Nuclear Power Corp. v. NRDC, and recovery from the wildfire? have the potential to both intensify and 435 U.S. 519, 553 (1978). Also, • Timber Supply—Much of the fire- reduce effects. These potential effects environmental objections that could be killed timber will quickly lose its prompted the decision to prepare an EIS raised at the draft environmental impact commercial value due to rapid for the Scenery Fire Salvage. statement stage may be waived or deterioration. To what extent does the This environmental analysis and dismissed by the courts. City of Angoon proposed action recover the commercial decision making process will enable v. Hodel, 803 F.2d 1016, 1022 (9th Cir. value of fire-killed timber to help meet additional interested and affected 1986) and Wisconsin Heritages, Inc. v. local and national needs? people to participate and contribute to Harris, 490 F. Supp. 1334, 1338 (E.D. • Activity in Roadless Areas—What the final decision. Public participation Wis. 1980). Because of these court effect would the proposal have on the will be requested at several points rulings, it is very important that those roadless character of the Cabinet Face during the analysis. The Forest Service interested in this proposed action East Roadless Area #671? will be seeking information, comments, participate by the close of the 45 day • Grizzly Bear—The decision area lies and assistance from Federal, State, local comment period so that substantive within the recovery area for the Cabinet/ agencies, and other individuals or comments and objections are made Taak grizzly bear ecosystem. How organizations who may be interested in available to the Forest Service at a time would the proposal maintain and or affected by the proposed projects. when it can meaningfully consider and enhance grizzly bear habitat, and This input will be used in preparation respond to them in the final EIS. contribute to recovery efforts? of the draft and final EIS. The scoping To be most helpful, comments on the • Visual Quality—The units proposed process will include: draft EIS should be as specific as can be viewed from Highway 2, the • Identifying potential issues. possible and may address the adequacy Kootenai River Road or the Bighorn • Identifying major issues to be of the statement or the merit of the Trail. To what extent will the viewshed analyzed in depth. alternatives discussed. Reviewers may be altered? • Exploring additional alternatives wish to refer to the council on which will be derived from issues Environmental Quality regulations for Forest Plan Amendment recognized during scoping activities. implementing the procedural provisions The Kootenai National Forest Land • Identifying potential environmental of the National Environmental Policy and Resource Management Plan has effects of this project and alternatives Act at 40 CFR 1503.3 in addressing specific management direction for the (i.e. direct, indirect, and cumulative these points. Scenery decision area. The Scenery effects and connected actions). Responsible Official proposed action is designed to maintain The analysis will consider a range of or improve resource conditions and alternatives, including the proposed Lawrence A. Froberg, District Ranger, move towards achieving desired action, no action, and other reasonable Libby Ranger District, Kootenai National ecological conditions, and is consistent action alternatives. Forest, 12557 US Highway 37 North, with the goals and objectives of the Libby, MT 59923 is the Responsible Forest Plan. Prior to making a NEPA Estimated Dates for Filing Official. As the Responsible Official he decision, a thorough examination of all The draft Scenery Fire Recovery EIS will decide which, if any, of the standards and guidelines of the Forest is expected to be filed with the proposed projects will be implemented. Plan would be completed and, if Environmental Protection Agency (EPA) He will document the decision and necessary, plan exceptions or and to be available for public review by reasons for the decision in the Record of amendments would be addressed in the June, 1995. At that time EPA will Decision. That decision will be subject EIS. publish a Notice of Availability of the to Forest Service Appeal Regulations. 9820 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices Dated: February 10, 1995. DC 20230; telephone: (202) 482–0498 or We agree that the error alleged by the Lawrence A. Forberg, (202) 482–0186, respectively. petitioners is a ministerial error. This error constitutes a significant ministerial District Ranger. APPLICABLE STATUTE AND REGULATIONS: error within the meaning of the [FR Doc. 95–4222 Filed 2–21–95; 8:45 am] Unless otherwise indicated, all citations Department’s Proposed Regulations in BILLING CODE 3410±11±M to the statute and to the Department’s that the correction results in a difference regulations are references to the between a dumping margin of de provisions as they existed on December minimis and a margin greater than de ARCTIC RESEARCH COMMISSION 31, 1994. References to the minimis. See section 353.15(g)(4)(ii) of Antidumping and Countervailing the Department’s Proposed Regulations Meeting Duties: Notice of Proposed Rulemaking (57 FR 1131, January 10, 1992). and Request for Public Comments, 57 Notice is hereby given that the Arctic Therefore, consistent with the FR 1131 (January 10, 1992) (concerning Research Commission will hold its 38th Department’s practice with respect to correction of ministerial errors in a Meeting in Arlington, Virginia, on the correction of ministerial errors, we preliminary determination) (‘‘Proposed March 8–9, 1995. On Wednesday, are amending Dole’s preliminary Regulations’’) are provided solely for March 8, a Business Session open to the dumping margin. The corrected further explanation of the Department’s public will convene at 9:00 a.m. in the dumping margin for Dole is 0.78 practice and procedures with respect to Fairfax Room of the Holiday Inn, 4610 percent; as a result the ‘‘All Others’’ rate correction of ministerial errors. North Fairfax Drive. Agenda items is now 3.92 percent. include: (1) Chairman’s Report; (2) Although the Department has Comments from Agencies and withdrawn the particular rulemaking Suspension of Liquidation proceeding pursuant to which the Organizations; (3) Recent Research We are directing the Customs Service Activities; and (4) Engineering Proposed Regulations were issued, the subject matter of these regulations is to correct our request to suspend Initiatives/Workshop Plans. On liquidation in accordance with section Thursday, March 8, the Business being considered in connection with an ongoing rulemaking proceeding which, 733(d)(1) of the Act, for all entries of Session will reconvene at 9:00 a.m. CPF from Thailand. Agenda items for this session include: among other things, is intended to We are directing the Customs Service (1) Icebreaker Notes; (3) Trip Reports; conform the Department’s regulations to to suspend liquidation of all entries of and (3) Correspondence. An Executive the Uruguay Round Agreements Act. CPF from Thailand from Dole that are Session for Members of the Commission See 60 FR 80 (January 3, 1995). entered, or withdrawn from warehouse, will be held following the Business AMENDED PRELIMINARY DETERMINATION: In for consumption on or after the date of Session on March 8. accordance with section 733(b) of the publication of this amended preliminary Any person planning to attend this Tariff Act of 1930, as amended (the Act), determination notice in the Federal meeting who requires special on January 4, 1995, the Department of Register. Because Dole’s dumping accessibility features and/or auxiliary Commerce (the Department) made its margin is now greater than de minimis, aids, such as sign language interpreters, preliminary determination that canned and margins greater than de minimis are must inform the Commission in advance pineapple fruit (CPF) from Thailand was included within the all others rate, we of those needs. being sold at less than fair value (60 FR are directing the Customs Service to Contact Person for More Information: Dr. 2734, January 11, 1995). On January 10 correct the ‘‘All Others’’ rate so that it Garrett W. Brass, Executive Director, Arctic and 13, 1995, we disclosed our will reflect the rates for TIPCO, SAICO, Research Commission, 703–525–0111 or TDD calculations for the preliminary Malee, and Dole. 703–306–0090. determination to counsel for In accordance with section 733(d)(1) Garrett W. Brass, respondents, the Thai Public Pineapple of the Act, we are directing the Customs Executive Director. Company (TIPCO), Siam Agro Industry Service to continue to suspend Pineapple and Others Public Co., Ltd. [FR Doc. 95–4231 Filed 2–21–95; 8:45 am] liquidation of all entries of CPF from (SAICO), and Malee Sampran Factory BILLING CODE 755±01±M Thailand for TIPCO, SAICO, Malee and Public Co., Ltd. (Malee), to counsel to All Others that are entered, or respondent Dole Food Company, Inc. withdrawn from warehouse, for and its affiliates, Dole Packaged Foods DEPARTMENT OF COMMERCE consumption on or after the date of Company and Dole Thailand, Inc. publication of this amended preliminary International Trade Administration (collectively Dole) and to counsel for the determination notice in the Federal petitioners, respectively, pursuant to [A±549±813] Register. The Customs Service shall their requests. On January 20, 1995, we require a cash deposit or the posting of received a submission from the Notice of Amended Preliminary a bond equal to the revised estimated petitioners alleging a ministerial error in Determination: Canned Pineapple Fruit preliminary dumping margins, as shown the Department’s preliminary From Thailand below. The suspension of liquidation determination calculations. (For specific will remain in effect until further notice. AGENCY: Import Administration, details of this allegation and our The weighted-average dumping margins International Trade Administration, analysis of it, see Memorandum from are as follows: U.S. Department of Commerce. Gary Taverman to Barbara R. Stafford EFFECTIVE DATE: February 22, 1995. dated February 8, 1995.) Origi- Re- FOR FURTHER INFORMATION CONTACT: The petitioners alleged that the Manufacturer/Producer/ nal vised Jennifer Katt or Michelle Frederick, Department incorrectly included Exporter margin margin percent percent Office of Antidumping Investigations, movement expenses in its deductions Import Administration, International for both direct and indirect selling Dole ...... 1 0.30 0.78 Trade Administration, U.S. Department expenses for Dole’s third country TIPCO ...... 7.81 7.81 of Commerce, 14th Street and observations made on an ex-warehouse SAICO ...... 9.55 9.55 Constitution Avenue, NW, Washington, or delivered basis. Malee ...... 1.12 1.12 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9821 Origi- Re- SUPPLEMENTARY INFORMATION: the firm for the same class or kind of Manufacturer/Producer/ nal vised Background merchandise from the same country Exporter margin margin from either the less-than-fair-value percent percent On May 4, 1994, the Department (LTFV) investigation or a prior published in the Federal Register (59 All Others ...... 6.73 3.92 administrative review; or (2) the highest FR 23051) a notice of ‘‘Opportunity to calculated rate in the review for any 1 (De Minimis). Request an Administrative Review’’ of firm for the same class or kind of the antidumping duty order on certain In accordance with section 733(f) of merchandise from the same country. See malleable cast iron pipe fittings from the Act, we have notified the Antifriction Bearings (Other Than Brazil. On May 4, 1994, we received International Trade Commission of our Tapered Roller Bearings) and Parts from the petitioners in this case, amended preliminary determination. Thereof From the Federal Republic of Grinnell Corporation, Ward This amended preliminary Germany, et al.; Final Results of Manufacturing Inc., and Stockham determination is published in Antidumping Duty Administrative Valves and Fittings Co., a request to accordance with section 733(f) of the Review, 56 FR 31692, 31704 (July 11, initiate an administrative review of Act. 1991); see also Allied-Signal Aerospace Tupy, a manufacturer and exporter of Co. v. United States 996 F.2d 1185 (Fed. Dated: February 14, 1995. this merchandise to the United States. Cir. 1993). Susan G. Esserman, On July 15, 1994, in accordance with Because Tupy refused to respond to Assistant Secretary for Import CFR 353.22(c), we initiated an our requests for information (see letter Administration. administrative review of this order for from the law firm of Sonnenberg, [FR Doc. 95–4320 Filed 2–21–95; 8:45 am] Tupy covering the period May 1, 1993 Anderson, & Rodriguez to the BILLING CODE 3510±DS-P through April 30, 1994 (see 59 FR Department dated October 31, 1994), we 36160). have used the highest rate ever found in The Department is now conducting this proceeding to establish its margin. [A±351±505] this administrative review in This rate is 5.64 percent. accordance with section 751 of the Certain Malleable Cast Iron Pipe Tariff Act of 1930, as amended (the Preliminary Results of Review Fittings From Brazil; Preliminary Tariff Act). We preliminarily determine the Results of Antidumping Administrative margin for this administrative review to Review Scope of Review be: Imports covered by this review are AGENCY: Import Administration, International Trade Administration, shipments of certain malleable cast iron Producer/exporter Margin Department of Commerce. pipe fittings, other than grooved, from Brazil. In the original order, these Industria de Fundicao Tupy S.A...... 5.64 ACTION: Notice of Preliminary Results of products were classifiable in the Tariff Antidumping Duty Administrative Schedules of the United States, Parties to the proceeding may request Review. Annotated, under item numbers disclosure within 5 days and interested parties may request a hearing not later SUMMARY: In response to requests from 610.7000 and 610.7400. These products than 10 days after publication of this petitioners, Grinnell Corporation, Ward are currently classifiable under item notice. Interested parties may submit Manufacturing Inc., and Stockham numbers 7307.19.00 and 7307.19.90 of written arguments in case briefs on Valves and Fittings Co., the Department the Harmonized Tariff Schedule (HTS). these preliminary results within 30 days of Commerce (the Department) is The HTS item numbers are provided for of the date of publication of this notice. conducting an administrative review of convenience and Customs purposes. Rebuttal briefs, limited to issues raised the antidumping duty order on certain The written description remains in case briefs, may be filed no later than malleable cast iron pipe fittings from dispositive. 7 days after the time limit for filing case Brazil. This review covers Industria de Best Information Available briefs. Any hearing, if requested, will be Fundicao Tupy S.A. (Tupy), a In accordance with section 776(c) of held 7 days after the scheduled date for manufacturer and exporter of this the Tariff Act, we have preliminarily submission of rebuttal briefs. Copies of merchandise to the United States, and determined that the use of BIA is case briefs and rebuttal briefs must be the period May 1, 1993 through April appropriate for Tupy. The Department’s served on interested parties in 30, 1994. The firm failed to submit a regulations provide that we may take accordance with 19 CFR 353.38(e). response to our questionnaire. As a into account whether a party refuses to Representatives of parties to the result, we have preliminarily provide information (19 CFR 353.37(b)) proceeding may request disclosure of determined to use the best information in selecting BIA. Generally, whenever a proprietary information under otherwise available (BIA) for cash company refuses to cooperate with the administrative protective order no later deposit and assessment purposes. Department or otherwise significantly than 10 days after the representative’s We invite interested parties to impedes the proceeding, the Department client or employer becomes a party to comment on these preliminary results. uses as BIA the highest rate for any the proceeding, but in any event not EFFECTIVE DATE: February 22, 1995. company for the same class or kind of later than the date the case briefs, under FOR FURTHER INFORMATION CONTACT: merchandise from the current or any 19 CFR 353.38(c), are due. The Thomas E. Schauer or Richard prior segment of the proceeding. When Department will publish the final Rimlinger, Office of Antidumping a company substantially cooperates results of this administrative review, Compliance, Import Administration, with our requests for information, but including the results of its analysis of International Trade Administration, fails to provide all the information issues raised in any case or rebuttal brief U.S. Department of Commerce, 14th requested in a timely manner or in the or at a hearing. Street and Constitution Avenue, N.W., form requested, we use as BIA the Upon completion of the final results Washington, D.C. 20230; telephone higher of (1) the highest rate (including in this review, the Department shall (202) 482–4733/4477. the ‘‘all others’’ rate) ever applicable to determine, and the Customs Service 9822 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices shall assess, antidumping duties on all National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: Lori appropriate entries. Individual Administration E. Goldberg, International Trade differences between U.S. price and Specialist, Office of Textiles and [I.D. 021595B] foreign market value may vary from the Apparel, U.S. Department of Commerce, percentages stated above. The Mid-Atlantic Fishery Management (202) 482–3400. Department will issue appraisement Council; Meeting SUPPLEMENTARY INFORMATION: instructions on each exporter directly to the Customs Service. AGENCY: National Marine Fisheries A notice published on December 20, Service (NMFS), National Oceanic and 1994 (59 FR 65531), announced that the Furthermore, the following deposit Atmospheric Administration (NOAA), 1995 Correlation would be available in requirements will be effective for all Commerce. late January. There was a further delay. shipments of the subject merchandise ACTION: Notice of public meetings. The 1995 Correlation will be available entered, or withdrawn from warehouse, on February 21, 1995 and may be for consumption on or after the SUMMARY: The Mid-Atlantic Fishery purchased from the U.S. Department of publication date of the final results of Management Council’s Atlantic Commerce, Office of Textiles and this administrative review, as provided Mackerel, Squid, and Butterfish Apparel, 14th and Constitution Avenue, for by section 751(a)(1) of the Tariff Act: Committee will meet on February 23– NW., room H3100, Washington, DC (1) The cash deposit rates for the 24, 1995 in the Montgomery B Room of 20230, ATTN: Correlation, at a cost of reviewed company will be the rate the Philadelphia Airport Days Inn, 4101 $30 per copy. Checks or money orders established in the final results of this Island Avenue, Philadelphia, PA. The should be made payable to the U.S. review; (2) for previously reviewed or meeting will begin at 10:00 a.m. on Department of Commerce. investigated companies not listed above, Thursday, February 23 and adjourn at Rita D. Hayes, the cash deposit rate will continue to be approximately 1:00 p.m. on Friday, Chairman, Committee for the Implementation the company-specific rate published for February 24. of Textile Agreements. the most recent period; (3) if the The purpose of this meeting is to [FR Doc. 95–4245 Filed 2–21–95; 8:45 am] exporter is not a firm covered in this review comments made on Amendment BILLING CODE 3510±DR±F review, a prior review, or the original 5 to the Atlantic Mackerel, Squid, and LTFV investigation, but the Butterfish Fishery Management Plan, manufacturer is, the cash deposit rate including possible qualifying criteria for will be the rate established for the most limited entry into the squid and DEPARTMENT OF DEFENSE recent period for the manufacturer of butterfish fisheries and other aspects of the merchandise; and (4) for all other the management program. Department of the Air Force FOR FURTHER INFORMATION CONTACT: producers and/or exporters of this Record of Decision (ROD) for the merchandise, the cash deposit rate shall David R. Keifer, Executive Director, Disposal and Reuse Final be 5.64 percent, the adjusted ‘‘all Mid-Atlantic Fishery Management Environmental Impact Statement for others’’ rate from the LTFV Council, 300 S. New Street, Dover, DE England Air Force Base (AFB), investigation. These deposit 19904; telephone: (302) 674–2331. Louisiana requirements, when imposed, shall SUPPLEMENTARY INFORMATION: This remain in effect until publication of the meeting is physically accessible to On February 3, 1995, the Air Force final results of the next administrative people with disabilities. Requests for issued a ROD for the disposal of review. sign language interpretation or other England Air Force Base (AFB), This notice also serves as a auxiliary aids should be directed to Louisiana. The decisions included in preliminary reminder to importers of Joanna Davis on (302) 674–2331, at least this ROD have been made in their responsibility under 19 C.F.R. 5 days prior to the meeting date. consideration of the Final Environmental Impact Statement (FEIS), 353.26 to file a certificate regarding the Dated: February 15, 1995. which was filed with the Environmental reimbursement of antidumping duties David S. Crestin, Protection Agency on November 13, prior to liquidation of the relevant Acting Director, Office of Fisheries 1992. entries during this review period. Conservation and Management, National England AFB was officially closed on Failure to comply with this requirement Marine Fisheries Service. December 15, 1992, pursuant to the [FR Doc. 95–4246 Filed 2–16–95; 10:14 am] could result in the Secretary’s Defense Base Closure and Realignment presumption that reimbursement of BILLING CODE 3510±22±F Act (Public Law 101–510) and antidumping duties occurred and the recommendations of the Defense subsequent assessment of double Secretary’s Commission on Base antidumping duties. COMMITTEE FOR THE Realignment and Closure. This ROD These administrative reviews and IMPLEMENTATION OF TEXTILE documents certain disposal decisions notice are in accordance with section AGREEMENTS which the Assistant Secretary of the Air 751(a)(1) of the Tariff Act (19 U.S.C. Force for Manpower, Reserve Affairs, Availability of the Correlation: Textile 1675(a)(1) and section 353.22 of the Installations and Environment has made and Apparel Categories With the Department’s regulations (19 CFR regarding the disposal of England AFB. Harmonized Tariff Schedule of the 353.22(c)(5)). The Air Force has decided to dispose United States for 1995 of 2279 acres of surplus property to the Dated: February 13, 1995. February 15, 1995. England Economic and Industrial Susan G. Esserman, AGENCY: Committee for the Development Authority for public Assistant Secretary for Import Implementation of Textile Agreements airport use and 0.69 acres to the City of Administration. (CITA). Alexandria for continued use as a small [FR Doc. 95–4321 Filed 2–21–95; 8:45 am] arms pistol range and 2.91 acres to the ACTION: Notice. BILLING CODE 3510±DS±P Federal Aviation Administration (FAA) Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9823 for support of airport activities and (GEPA), the U.S. Secretary of Education of Education (SEA) in satisfaction of operation of their enroute radar facility. (Secretary) intends to repay to the claims arising from an audit of KCSD The uses proposed for the property by Oregon Department of Education, the covering fiscal year (FY) 1990. prospective recipients of property under State educational agency (SEA), an The claims involved the SEA’s the ROD are included in the proposed amount equal to 75 percent of the administration of Chapter 1, ESEA, action in the FEIS and are consistent $42,262.39 recovered by the U.S. providing financial assistance to State with the community’s draft Department of Education (Department) and local agencies to address the special redevelopment plan for the base. as a result of final audit determinations educational needs of educationally Any questions regarding this matter for Chapter 1 (Local Educational Agency deprived children in areas with high should be directed to Mr. Charles R. and Migrant Education Programs) of concentrations of children from low- Hatch, Program Manager, Southwest Title I of the Elementary and Secondary income families (Chapter 1), as well as Division. Correspondence should be Education Act of 1965, as amended the special educational needs of sent to AFBCA/SW, 1700 N. Moore (Chapter 1, ESEA). This notice describes migratory children (MEP). Specifically, Street, Suite 2300, Arlington, VA the SEA’s plan, submitted on behalf of the audit determinations, made by an 22209–2802. the Klamath County School District independent auditor acting under the Patsy J. Conner, (KCSD), the local educational agency Single Audit Act of 1984 and upheld by Air Force Federal Register Liaison Officer. (LEA), for the use of the repaid funds the SEA, found that varying percentages of salaries and fringe benefits of five [FR Doc. 95–4284 Filed 2–21–95; 8:45 am] and the terms and conditions under which the Secretary intends to make LEA employees tested were charged to BILLING CODE 3910±01±M those funds available. The notice invites Chapter 1 during FY 1990. The auditors comments on the proposed grantback. also questioned the portion of salary Department of the Army DATES: All comments must be received and fringe benefits for one LEA on or before March 24, 1995. employee charged to the Chapter 1 MEP. Army Science Board; Notice of Closed ADDRESSES: Comments concerning the In addition, no time distribution records Meeting portion of the grantback that provides were available to support the charges to funds under the Chapter 1 basic either program. Finally, the auditors In accordance with Section 10(a)(2) of programs operated by local educational disclosed that the early retirement pay the Federal Advisory Committee Act agencies (LEA grants program) should for one employee was divided equally (P.L. 92–463), announcement is made of be addressed to Mary Jean LeTendre, between the Chapter 1 program and the the following Committee Meeting. Director, Compensatory Education MEP, even though the employee had Name of Committee: Army Science Board Programs, Office of Elementary and worked on these programs for only three (ASB). Secondary Education, U.S. Department of a total of twenty-two years with the Date of Meeting: 15 & 16 March 1995. district. The auditors, therefore, Time of Meeting: 0800–1700, 15 March of Education, 600 Independence Avenue, S.W., (Portals Building, Room questioned 19/22 of the early retirement 1995. cost charged to Chapter 1 and the MEP Place: 0800–1700, 16 March 1995. 4400), Washington, D.C. 20202–6132. Pentagon—Washington, DC. All comments concerning the portion grants ($1,813.64 to each). Altogether, Agenda: The Army Science Board’s Ad of the grantback that provides funds disputed costs totaled $31,396.39 for the Hoc Study on ‘‘ASB Space and Missile under the Migrant Education Program Chapter 1 grant, and $10,866 for the Defense Organization’’ will have its 4th (MEP) should be addressed to Ms. Bayla MEP grant. meeting at the Pentagon on 15 and 16 March. F. White, Director, Office of Migrant The SEA, on August 24, 1992, These meetings will be closed to the public Education, Office of Elementary and requested a refund of the full amount of in accordance with Section 552b(c) of title 5, Secondary Education, U.S. Department questioned costs from KCSD. On U.S.C., specifically subparagraph (1) thereof, September 15, 1992, the SEA submitted and Title 5, U.S.C., Appendix 2, subsection of Education, 600 Independence Avenue, S.W., (Portals Building, Room a check to the U.S. Department of 10(d). The classified and unclassified matter Education in the amount of $66,395.52, to be discussed are so inextricably 4100), Washington, D.C. 20202–6135. which included a recovery of intertwined so as to preclude opening all FOR FURTHER INFORMATION CONTACT: For $31,396.39 for the Chapter 1 program, as portions of the meeting. The ASB the Chapter 1 LEA grants program, S. well as $10,866 related to the MEP. The Administrative Officer, Sally Warner, may be Colene Nelson, U.S. Department of remaining $24,133.13 resulted from contacted for further information at (703) Education, 600 Independence Avenue, 695–0781. audit recoveries from other Federal S.W., (Portals Building, Room 4400), programs and are not part of this Sally A. Warner, Washington, D.C. 20202–6132. grantback notice. Administrative Officer, Army Science Board. Telephone: (202) 260–0979. For the [FR Doc. 95–4220 Filed 2–21–95; 8:45 am] MEP, Lori Ahmady, U.S. Department of B. Authority for Awarding a Grantback BILLING CODE 3710±08±M Education, 600 Independence Avenue, Section 459(a) of GEPA, 20 U.S.C. S.W., (Portals Building, Room 4104), 1234h(a), provides that whenever the Washington, D.C. 20202–6135. Secretary has recovered program funds DEPARTMENT OF EDUCATION Telephone: (202) 260–1391. Individuals following a final audit determination, who use a telecommunications device the Secretary may consider those funds Intent To Repay to the Oregon for the deaf (TDD) may call the Federal to be additional funds available for the Department of Education Funds Information Relay Service (FIRS) at 1– program and may arrange to repay to the Recovered as a Result of a Final Audit 800–877–8339 between 8 a.m. and 8 SEA or LEA affected by that Determination p.m., Eastern Time, Monday through determination an amount not to exceed AGENCY: Department of Education. Friday. 75 percent of the recovered funds. The ACTION: Notice of intent to award SUPPLEMENTARY INFORMATION: Secretary may enter into this grantback grantback funds. arrangement if the Secretary determines A. Background that the— SUMMARY: Under section 459 of the The Department has recovered (1) Practices or procedures of the SEA General Education Provisions Act $42,262.39 from the Oregon Department or LEA that resulted in the audit 9824 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices determination have been corrected, and These determinations are based upon Dated: February 8, 1995. the SEA or LEA is, in all other respects, the best information available to the Thomas W. Payzant, in compliance with the requirements of Secretary at the present time. If this Assistant Secretary for Elementary and the applicable program; information is not accurate or complete, Secondary Education. (2) SEA has submitted to the Secretary the Secretary may take appropriate (Catalog of Federal Domestic Assistance a plan for the use of the funds to be administrative action. In finding that the Number 84.010, Educationally Deprived awarded under the grantback conditions of section 459 of GEPA have Children—Local Educational Agencies; and arrangement that meets the been met, the Secretary makes no Catalog of Federal Domestic Assistance requirements of the program, and to the determination concerning any pending Number 84.011, Chapter 1 Migrant Education Program) extent possible, benefits the population audit recommendations or final audit that was affected by the failure to determinations. [FR Doc. 95–4247 Filed 2–21–95; 8:45 am] comply or by the misexpenditures that BILLING CODE 4000±01±P resulted in the audit exception; and E. Notice of the Secretary’s Intent to (3) Use of funds to be awarded under Enter Into a Grantback Arrangement the grantback arrangement in Section 459(d) of GEPA requires that, DEPARTMENT OF ENERGY accordance with the SEA’s plan would at least 30 days before entering into an serve to achieve the purposes of the arrangement to award funds under a Savannah River Operations Office; program under which the funds were grantback, the Secretary must publish in Record of Decision: Stabilization of originally granted. the Federal Register a notice of intent Plutonium Solutions Stored in the F- Canyon Facility at the Savannah River C. Plan for Use of Funds Awarded to do so, and the terms and conditions Site, Aiken, SC Under a Grantback Arrangement under which payment will be made. In accordance with section 459(d) of Pursuant to section 459(a)(2) of GEPA, AGENCY: U.S. Department of Energy. GEPA, notice is hereby given that the the SEA has applied for a grantback of ACTION: Record of Decision, Secretary intends to make funds $31,696—75 percent of the principal Stabilization of Plutonium Solutions available to the SEA under a grantback amount recovered by the Department— Stored in the F-Canyon Facility at the arrangement. The grantback award and has submitted a plan on behalf of Savannah River Site, Aiken, South would be in the amount of $31,696. the LEA for use of the grantback funds Carolina. to meet the special educational needs of F. Terms and Conditions Under Which SUMMARY: both educationally deprived children in Payments Under a Grantback The U.S. Department of programs administered under Chapter 1, Arrangement Would Be Made Energy (DOE) has prepared and issued ESEA (20 U.S.C. 2701 et seq.), as well a Final Environmental Impact Statement The SEA and LEA agree to comply as those of migratory children under the (EIS) (DOE/EIS–0219, December 30, with the following terms and conditions Chapter 1 MEP (20 U.S.C. 2781 et seq.). 1994), to assess the potential According to the plan, the LEA will under which payment under a grantback environmental impacts of stabilizing use the grantback funds under Chapter arrangement would be made: approximately 80,000 gallons of 1 to upgrade its existing Higher Order (1) The funds awarded under the plutonium solutions currently stored in Thinking Skills program (H.O.T.S.). grantback must be spent in accordance tanks in the F-Canyon chemical This computer-assisted instruction has with— separations facility at the Savannah been used successfully in the county for (a) All applicable statutory and River Site (SRS) near Aiken, South the past two years to improve the skills regulatory requirements; Carolina. As long as the plutonium of educationally deprived children, and (b) The plan that the SEA submitted remains in solution there is a risk of the use of the program promotes the and any amendments to that plan that releases and subsequent radiation purpose of the Chapter 1 program under are approved in advance by the exposure to workers, the public, and the which funds were allocated (see section Secretary; and environment from accidental criticality 1001(b)). (c) The budget that was submitted incidents, leaks, and disruptions of The KCSD currently has five existing with the plan and any amendments to engineered systems from earthquakes. H.O.T.S. Mac Labs, which serve an the budget that are approved in advance The Department has evaluated the average of 28 students, in grades 4 by the Secretary. impacts of alternative methods that through 7. The requested grantback would achieve stabilization of the (2) All funds received under the solutions. The analysis reveals that the funds will be used to upgrade existing grantback arrangement must be H.O.T.S. sites and allow for another Mac potential environmental impacts of obligated by September 30, 1995, in implementing alternatives that would Lab site to be established at Keno accordance with section 459(c) of GEPA Elementary School. Also, software eliminate the risk inherent in storing and the SEA’s plan. plutonium in liquid form are small. would be purchased for the five existing (3) The SEA, on behalf of the LEA, Mac Labs, as well as for the new Mac Further, the impacts differ little among will, not later than December 31, 1995, the alternatives. DOE currently has Lab. submit a report to the Secretary that— The grantback funds under the available the capability to process the Chapter 1 MEP will be used to purchase (a) Indicates that the funds awarded plutonium solutions to a metal form. computer hardware and software for under the grantback have been spent in Given this existing capability, the language instruction to migratory accordance with the proposed plan and potential for environmental releases that children in four schools in the LEA. approved budget; and exists as a result of storing the (b) Describes the results and plutonium in liquid form, and the D. The Secretary’s Determinations effectiveness of the project for which the relative lack of environmental The Secretary has carefully reviewed funds were spent. advantages to implementing other the plan submitted by the SEA. Based (4) Separate accounting records must options, DOE has decided to process the upon that review, the Secretary has be maintained documenting the plutonium solutions to metal form using determined that the conditions under expenditures of funds awarded under the F-Canyon and FB-Line facilities at section 459 of GEPA have been met. the grantback arrangement. the SRS. DOE has committed that this Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9825 plutonium metal will not be used for primary mission was to produce nuclear processing in F-Canyon before the nuclear explosive purposes and intends materials to support the defense, completion of an environmental impact to offer it for inspection by the research, and medical programs of the statement. International Atomic Energy Agency. United States. The present mission On March 17, 1994, DOE published a During the time the SRS was actively emphasizes waste management, Notice of Intent (59 FR 12588) to involved in nuclear material environmental restoration, transition prepare an environmental impact production, DOE transferred irradiated activities, and decontamination and statement on the interim management of fuels and targets from SRS reactors to decommissioning of facilities that are no nuclear materials at the SRS. The disassembly basins, which are water- longer needed for nuclear materials proposed DOE interim management filled pools, to allow short-lived production. actions are to stabilize those nuclear radioactive isotopes to decay. From the In March 1992, DOE suspended materials at the SRS that represent a pools, DOE transferred the fuel and chemical processing operations in the F- health or safety concern for the public, targets to canyon facilities in F- and H- Canyon to address a potential safety workers, and the environment and to Areas, where they were chemically concern. That concern was addressed; convert certain materials to a usable dissolved into liquid solutions. The however, prior to the resumption of form to support DOE program needs. useful isotopes were recovered, processing, the Secretary of Energy These proposed interim actions would converted to a solid form, and either directed that SRS phase out chemical be carried out while DOE makes and shipped to other DOE facilities or stored separations activities (i.e., reprocessing). implements long-term decisions on the at the SRS. This chemical reprocessing Non-safety-related facility operations disposition of nuclear materials. DOE is activity has been suspended since 1992, have remained shut down since that addressing its long-term decisions in a and plutonium solutions have been time (March 1992). Approximately Programmatic Environmental Impact stored in tanks in the F-Canyon facility 303,000 liters (80,000 gallons) of Statement for Storage and Disposition of since that time. The Final F-Canyon solutions containing plutonium have Weapons-Usable Fissile Materials, for Plutonium Solutions EIS examines remained in tanks in F-Canyon since the which it issued an NOI on June 21, 1994 alternative methods for stabilizing these suspension of operation. (59 FR 31985). DOE expects that it could solutions. In September 1992, the SRS require 10 years or more to make and completed a plan that described the implement these long-term decisions. FOR FURTHER INFORMATION CONTACT: For actions that DOE would have to take to In May 1994, the Manager of the further information on the stabilization phase out reprocessing. The plan Savannah River Operations Office of F-Canyon plutonium solutions or to included actions for removing the recommended that the DOE Assistant receive a copy of the Final EIS contact: material that remained in the canyons as Secretary for Defense Programs seek A. B. Gould, Jr., NEPA Compliance a result of the suspension of chemical alternative arrangements for compliance Officer, U.S. Department of Energy, separation activities in March 1992. In with the National Environmental Policy Savannah River Operations Office, P.O. February 1993, the Site requested Act (NEPA) under the emergency Box 5031, Aiken, South Carolina 29804– approval from DOE to restart F-Canyon provisions of the Council on 5031, (800) 242–8269. after the completion of operational Environmental Quality NEPA For further information on the DOE readiness reviews conducted as part of Regulations, 40 CFR Part 1506.11, to National Environmental Policy Act the response to the above-mentioned allow immediate stabilization of the (NEPA) process, contact: Carol M. March 1992 safety concern. The SRS plutonium solutions in F-Canyon and Borgstrom, Director, Office of NEPA made this startup request in light of the the Mark-31 targets stored in the L- Policy and Assistance (EH–4.2), U.S. Secretary’s direction to accelerate the Reactor Disassembly Basin. The Department of Energy, 1000 transition of F-Area reprocessing recommendation was based on the Independence Avenue, SW., facilities to a standby condition and Manager’s determination that the Washington, D.C. 20585, (202) 586– because all contemplated actions were materials present risks to workers, the 4600, or leave a message at (800) 472– typical of previous facility operations. public, and the environment in the form 2756. During this same time period, DOE of radiation exposure from normal SUPPLEMENTARY INFORMATION: was drafting new requirements for operations and potential accidents, operational readiness reviews necessary which DOE could reduce by converting I. Background for the startup or restart of nuclear the material to a solid stable form. DOE prepared this Record of Decision facilities. Under these requirements, The Assistant Secretary for Defense in accordance with the regulations of facilities had to be able to demonstrate Programs endorsed the Savannah River the Council on Environmental Quality the capability to perform satisfactorily Operations Office Manager’s request and for implementing NEPA (40 CFR Parts in relation to a broad range of topics asked that the DOE Office of 1500–1508) and DOE’s NEPA associated with the safe operation of a Environment, Safety and Health perform Implementing Procedures (10 CFR Part nuclear facility. DOE promulgated these an independent evaluation to determine 1021). This Record of Decision is based requirements in DOE Order 5480.31, if stabilization actions should proceed on DOE’s Final F-Canyon Plutonium ‘‘Startup and Restart of Nuclear in advance of the completion of the Solutions Environmental Impact Facilities,’’ which it issued in Interim Management of Nuclear Statement, Savannah River Site, Aiken, September 1993. DOE decided that the Materials EIS. The DOE Office of South Carolina (DOE/EIS–0219). SRS should apply these requirements to Environment, Safety and Health The SRS occupies approximately 800 the restart of the F- and H-Canyons and, performed this independent evaluation square kilometers (300 square miles) in November 1993, determined that the in June 1994. The report from the adjacent to the Savannah River, mostly Site should hold the proposed F-Canyon evaluation characterized the following in Aiken and Barnwell Counties of (and FB-Line) restart in abeyance until potential facility accidents to be of South Carolina, about 40 kilometers (25 it had completed a restart review in serious significance: (1) the potential for miles) southeast of Augusta, Georgia, accordance with the new Order. In inadvertent criticality of plutonium due and about 32 kilometers (20 miles) January 1994, DOE determined that to precipitation of plutonium from the south of Aiken, South Carolina. When unless there was an emergency F-Canyon plutonium solutions, and (2) established in the early 1950s, SRS’s condition, there should be no potential radiological releases to the 9826 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices environment due to leakage of of Nuclear Materials EIS. Therefore, letter indicates that a comment on the plutonium solutions through tank DOE decided to prepare the F-Canyon Draft EIS concerning impacts to cooling coils. The loss of experienced Plutonium Solutions EIS on an ecological systems is only partially facility personnel through resignation expedited basis. On August 23, 1994, addressed in the Final EIS. The Final and retirement was an issue of marginal DOE published in the Federal Register EIS briefly considered the potential for concern, with the recognition that this a notice amending the NOI for the impacts to ecological systems and could become a serious concern if the Interim Management of Nuclear concluded that none of the alternatives current trend continued. The report did Materials at the SRS. The notice discussed in the EIS would affect not include the Mark-31 targets in the explained DOE’s decision to prepare the threatened or endangered species or any materials of serious concern. DOE F-Canyon Plutonium Solutions EIS. of the flora or fauna routinely found in evaluated the request to pursue The NOI for the Interim Management the vicinity of F-Canyon areas. alternative arrangements for compliance of Nuclear Materials EIS requested Therefore, DOE did not include a with NEPA under the emergency public comments and suggestions for detailed analysis of the impacts on provisions of 40 CFR 1506.11 in light of DOE to consider in its determination of ecological systems in the Final EIS. DOE the Office of Environment, Safety and the scope of that EIS, and announced a will be discussing with EPA how to Health’s evaluation and determined that public scoping period that ended on better represent/analyze potential the appropriate action would be to May 31, 1994. DOE held scoping impacts of emissions on ecosystems. accelerate the evaluation of stabilization meetings in Savannah, Georgia, North The EPA Region IV letter states that the alternatives for the F-Canyon plutonium Augusta and Columbia, South Carolina, preferred alternative will have the least solutions by preparing a separate on May 12, 17, and 19, 1994, overall impact and that EPA supports environmental impact statement on an respectively. As a result of this public DOE’s action. The National Oceanic and accelerated schedule. scoping process, DOE received Atmospheric Administration concluded The vulnerabilities associated with comments applicable to the stabilization that no federally-listed threatened or the continued storage of the plutonium of F-Canyon plutonium solutions from endangered species under its in solution have also been documented individuals, organizations, and jurisdiction would be affected by the by the Defense Nuclear Facilities Safety government agencies, and has proposed action. The other Board (DNFSB). In April 1994, the considered these comments in the organizations had no comments on the DNFSB ‘‘concluded from observations preparation of the F-Canyon Plutonium Final EIS, and indicated they supported and discussions with others that Solutions EIS. DOE’s action plans or provided neither imminent hazards could arise within On September 9, 1994, the U.S. an indication of support nor opposition two to three years unless certain Environmental Protection Agency of DOE’s action plans. problems are corrected. . . . The Board published a Notice of Availability is especially concerned about . .. (NOA) in the Federal Register (59 FR II. Alternatives (s)everal large tanks in the F-Canyon at 174, pages 46643–46644), which started The proposed action addressed in the the Savannah River Site (that) contain the public comment period on the Draft Final F-Canyon Plutonium Solutions tens of thousands of gallons of solutions F-Canyon Plutonium Solutions EIS; EIS is to stabilize the plutonium of plutonium and trans-plutonium DOE published a corresponding NOA solutions in order to eliminate the risks isotopes. . . . If an earthquake or other for the Draft EIS on September 9, 1994 inherent in storing this plutonium in accident were to breach the tanks, F- (59 FR 174, pages 46627–46628). The liquid form. DOE examined four Canyon would become so contaminated public comment period ended on alternatives for stabilizing the solutions, that cleanup would be practically October 24, 1994. and a no-action alternative, in the Final impossible. Containment of the DOE revised the Draft EIS in response EIS. radioactive materials under such to written and oral comments received circumstances would be highly during the public comment period from A. No Action uncertain . . . therefore, the Board individuals, organizations, and Federal DOE would continue to manage the recommends . . . (t)hat preparations be and state agencies. Public hearings were existing 303,000 liter (80,000 gallon) expedited to process the dissolved held in Columbia and North Augusta, inventory of solutions in stainless steel plutonium and trans-plutonium South Carolina, and Savannah, Georgia tanks in the F-Canyon. The solutions isotopes in tanks in the F-Canyon at the (October 4, 6, and 11, 1994, would be monitored and corrective Savannah River Site into forms safer for respectively). On December 30, 1994, actions taken, as necessary, to minimize interim storage. The Board considers EPA published a Notice of Availability the potential for precipitation of the this problem to be especially urgent.’’ of the Final F-Canyon Plutonium plutonium and the possibility of an While the Defense Nuclear Facilities Solutions EIS in the Federal Register inadvertent criticality. This action Safety Board noted that no emergency (59 FR 250, page 67706), following would continue for the 10-year time presently exists, the Board also noted distribution of approximately 400 period evaluated in the Final EIS. that the plutonium solutions in F- copies to government officials and Canyon could present an imminent interested groups and individuals. B. Process to Plutonium Metal (the hazard within two or three years. Given The Department of Energy received Preferred Alternative) that even the shortest time to complete letters from the following organizations Under this alternative, DOE would stabilization is almost two years, the following the distribution of the Final use the existing F-Canyon and FB-Line Department concluded that expediting EIS: (1) the South Carolina Department processes and equipment to convert the the decision to stabilize plutonium of Transportation; (2) the Centers for plutonium solutions to metal. The metal solutions was prudent. Disease Control, U.S. Department of would be a chemically stable form of As noted above, DOE determined that Health and Human Services; (3) the plutonium that DOE could produce there are safety concerns associated National Oceanic and Atmospheric without modifying the existing with plutonium solutions stored in F- Administration, U.S. Department of equipment. Because there is no need for Canyon that warrant consideration of Commerce; and, (4) the U.S. additional plutonium for weapons, DOE actions prior to the issuance of a Record Environmental Protection Agency would not attempt to meet previous of Decision for the Interim Management (EPA), Region IV. The EPA Region IV isotopic or chemical purity Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9827 specifications that were applicable for meet the long-term storage standard and criticality concerns. The plutonium weapons production. In addition, DOE were economically or physically solutions would remain in the high- has made a commitment that impractical, DOE would perform the level waste tanks until DOE transferred plutonium-239 from stabilization stabilization in two phases. DOE would the contents to the Defense Waste actions would not be used for nuclear modify FB-Line to be able to convert the Processing Facility for vitrification. explosive purposes. The plutonium material initially to an oxide form and E. Vitrification in F-Canyon metal would be packaged and stored, package it in FB-Line. At the same time, similar to other plutonium metal DOE would design and construct a new Under this alternative, DOE would already in vault storage. DOE expects facility to process, package, and store vitrify the plutonium into a borosilicate this stabilization alternative could be the oxide in accordance with the new glass matrix using an F-Canyon accomplished in 20 months from the standard. DOE estimates that the vitrification facility. Modifications to date of a Record of Decision, which minimally required modifications to FB- the F-Canyon would be necessary, and would be significantly faster than Line to provide the solution-to-oxide include the installation of a stabilization could be accomplished conversion capability would cost $7 geometrically favorable evaporator to under the other alternatives. In million and take three years to concentrate plutonium solution, and conjunction with stabilizing the complete. Following completion and equipment to convert the concentrated solutions to metal, DOE would modification, DOE would operate the plutonium solution to a glass matrix undertake a project to modify a portion FB-line for approximately 9 months to using technology similar to that to be of the FB-Line facility to provide the convert and package the oxide for used on a larger scale in the Defense capability to repackage the plutonium storage. Repackaging the oxide to meet Waste Processing Facility. The capital metal into a configuration that meets the the new plutonium storage standard costs of these modifications would be recently issued DOE standard for long- would not occur for another three years about $27 million; the facility could be term storage of plutonium (U.S. when the new facility for packaging available by January 1999. Department of Energy Criteria for were available. This new facility is When the modifications to the F- Storage of Plutonium Metals and estimated to cost between $70 million Canyon to install the vitrification Oxides, DOE–STD–3013–94, and $150 million; repackaging of the facility were completed, the plutonium Washington, D.C.). The new storage oxide could also be completed by the solutions would be transferred to the standard requires plutonium to be end of 2001. facility and evaporated. This packaged in a form that is stable over an concentrated plutonium solution would D. Vitrification in the Defense Waste extended period (e.g., 20 years) without be fed, along with finely ground glass Processing Facility human intervention. Plutonium metal (frit), to a melter to produce a would be packaged in sealed metal cans DOE would transfer the plutonium borosilicate glass containing the without the presence of plastics. Current solutions to the SRS waste tank farm. plutonium. The molten glass would be SRS plutonium metal packaging Before transfer, the solutions would be poured into stainless steel packages and requires the use of plastic around an adjusted to ensure the safety of the stored in an existing vault at the SRS inner can for contamination control material in the tanks. DOE has until final disposition decisions were purposes. DOE estimates that it could identified several concepts for adjusting made and implemented. accomplish the modifications to the FB- the solutions: diluting the solutions Although the vitrification of this Line packaging capability by late 1997 with water and chemicals to achieve plutonium could begin as early as at a cost of approximately $3 million. very low plutonium concentration, January 1999, DOE analyzed the Alternatively, while the solutions are diluting the solutions with depleted Vitrification in F-Canyon Alternative as stabilized to metal, DOE could modify a uranium, or adding iron and manganese though it began during the first six different vault facility to provide the or other neutron poisons such as months of 2000. The Final EIS describes necessary equipment to repackage the gadolinium. In the waste tanks, high- its environmental consequences, which metal to meet long-term storage activity waste would settle to the bottom are largely independent of the schedule requirements. DOE estimates this could of the tank in the form of sludge. DOE for vitrification. would transfer highly radioactive sludge cost between $70 million and $150 F. Other Activities for Reduction of Risk million and that it could complete to the Defense Waste Processing repackaging by the end of 2001. Facility, where it would be vitrified In addition to the alternatives The stabilization to metal alternative (converted to a glass-like substance) and analyzed in detail in the Final F-Canyon would produce a solid form of stored on the Site until DOE made and Plutonium Solutions EIS to stabilize the plutonium that would be safer and implemented final disposition plutonium solutions, DOE identified easier to store in the shortest period of decisions. other activities that have the potential to time. As a result, this is DOE’s preferred DOE estimates it would take reduce the risk associated with storing alternative. approximately six years to perform the the plutonium solutions in liquid form. technical studies, training, and These activities are: (1) transporting the C. Processing to Plutonium Oxide qualification efforts necessary to ensure solutions to H-Canyon for stabilization, DOE would modify the FB-Line to safe operations for transferring the (2) purification of the solutions by support conversion of the plutonium solutions for subsequent vitrification processing those that have the greatest solutions to a plutonium oxide and to under this alternative. The solutions criticality risk through the second package the material for storage. The would not be transferred to the high- plutonium cycle in F-Canyon, (3) risk objective would be to produce a level waste tanks until all studies for reduction activities identified in the material form and packaging vitrification were final. After these DOE Office of Environment, Safety and configuration that met the new DOE studies were completed, DOE estimates Health Assessment of Interim Storage of standard for long-term storage of that it would take an additional three Plutonium Solutions in F-Canyon and plutonium. If the extent of the FB-Line years to complete the process of Mark-31 Targets in L-Basin at the modifications necessary to convert the transferring all the plutonium solutions Savannah River Site (DOE–EH–0397P/ plutonium solutions to a plutonium to the high-level waste tanks because of SRS–FCAN–94–01), and (4) shipment of oxide and to package the material to the limited availability of tank space the solutions off the Site for 9828 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices stabilization. Activities that involve workers and the public from emissions With the exception of vitrification in transportation of the plutonium of toxic pollutants. Because discharges DWPF, the impact on SRS waste solutions would involve all the risks and emissions would vary little among management capacities from associated with the alternatives for the alternatives, public health effects implementing any of the alternatives stabilization plus the risks and costs would vary little among the alternatives. would be minimal because the Site can associated with transportation of The analysis in the EIS shows that these accommodate all the waste generated radioactive liquids. Activities such as potential small impacts would not with existing and planned radioactive purification of the plutonium solutions disproportionately affect minority or waste storage and disposal facilities. by operating the second plutonium low income populations. It would not be appropriate under any cycle in F-Canyon would reduce but not Implementation of any of the of the alternatives that would result in eliminate the risks associated with alternatives, including the No Action stabilized plutonium to characterize the storing liquid plutonium solutions. In alternative, would result in a risk of stabilized plutonium as waste. The addition, operation of only the second accidents. The Final EIS evaluates a alternatives for the disposition of plutonium cycle to purify plutonium spectrum of potential accidents for each surplus weapons-usable plutonium are solutions would require process alternative. To enable a relative currently being examined in a development work and establishment of comparison of potential impacts among programmatic environmental impact operating parameters, because the F- the alternatives, the accident with the statement that is scheduled for Canyon process has never been operated highest reasonably foreseeable completion early next year. The nitric in this manner. One important issue consequence for each alternative was acid that is associated with the associated with this approach would be assumed to occur and the maximum plutonium solutions likewise should unprecedented high levels of radiation potential effects (latent cancer fatalities) not be characterized as waste. The nitric in the second cycle portion of the were calculated. The projected acid historically was introduced into the facility due to the greatly increased frequency for these high-consequence separations process to dissolve presence of fission products. accidents ranged from once in 17,000 irradiated materials and provide for years for a plutonium solutions fire criticality/radiological safety by III. Environmental Impacts of involving solvents to once in 5,000 maintaining the plutonium in solution Alternatives years for a severe earthquake. The pending stabilization. The nitric acid The Final F-Canyon Plutonium maximum potential effect accident, continues to serve this vital safety Solutions EIS evaluated the although with a low probability, during function. The South Carolina environmental impacts of the the storage of plutonium solutions (for Department of Health and alternatives, including the no action the periods prior to stabilization and for Environmental Control (SCDHEC) agrees alternative. DOE analyzed the potential the No Action alternative) and during F- with DOE that the F-Canyon plutonium impacts that would result from Canyon operation for stabilization is solutions should not be regulated as a implementation of the alternatives and about 6 latent cancer fatalities to the mixed waste (Letter, R. Lewis Shaw, believes there would be minimal exposed offsite population. For the SCDHEC to Frank R. McCoy, III, DOE, impacts in the areas of geologic stabilization actions involving FB-Line January 26, 1995). resources, ecological and cultural operations (processing to metal or IV. Other Factors resources, socioeconomics, aesthetics processing to oxide), the maximum and scenic resources, and noise. This is potential effect from an accident is less In addition to examining the because implementation of each of the than 2 latent cancer fatalities in the environmental impacts of the alternatives would occur within the F- exposed offsite population. Following alternatives, DOE also considered other Area and mostly within the F-Canyon stabilization and during stabilized factors related to the stabilization of the building. In light of planned SRS plutonium storage, the maximum F-Canyon plutonium solutions. These workforce reductions, any jobs potential effect from an accident is less factors are: (1) new facilities that would associated with implementation of any than 1 latent cancer fatality in the be required, (2) security and nuclear of the alternatives could be filled exposed offsite population. nonproliferation, (3) implementation through reassignment of current The SRS generates several different schedule, (4) technology availability and workers, resulting in no discernible types of waste, including low-level technical feasibility, (5) labor impact on the regional economy. waste, high-level waste, transuranic availability and core competency, (6) Radiological health effects on workers waste and mixed waste. The Final EIS degree of reliance on aging facilities, from normal operations would be small lists estimates of waste generation for and (7) post-stabilization custodial care for any alternative, much less than one each alternative. DOE estimates that the required. The processing to plutonium additional cancer death (0.2 latent smallest increase for all waste types metal alternative would be the most cancer fatalities for the no action would occur if the processing to advantageous for all factors except: (2) alternative and less for the other plutonium metal alternative were security and nuclear nonproliferation alternatives) during the lifetimes of the implemented. Implementation of this and (6) reliance on aging facilities. affected individuals. The effect on the alternative would eventually result in The processing to oxide and general public could be at most 0.0006 high-level waste equivalent to 40 vitrification alternatives would involve additional cancer deaths (for the Defense Waste Processing Facility minimal reliance on aging facilities processing to oxide and vitrification in (DWPF) high-level waste canisters. The because they would use new facilities F-Canyon alternatives, and less for the largest increase in high-level waste for the final step involved in stabilizing other alternatives) in the general would occur if the vitrification in DWPF the plutonium and for storing the population within 80 kilometers (50 alternative were implemented. The plutonium after completion of miles) of the SRS. This is to say that no largest increase in saltstone and low- stabilization. The processing to metal latent cancer fatalities in either workers level waste generation would result alternative would use existing facilities or the general population are expected from implementing the processing to to stabilize the plutonium solutions. to occur as a result of routine oxide alternative. None of the The vitrification alternatives would be operations. DOE expects similarly small alternatives is expected to generate preferable from the security and nuclear adverse nonradiological health effects to substantial quantities of mixed waste. nonproliferation standpoint because Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9829 vitrification would produce a form of the shortest period of time. While the Issued at Washington, DC, February 1, material least likely to be used in plutonium remains in solution, there is 1995. manufacturing a nuclear weapon. a risk of releases and subsequent Thomas P. Grumbly, However, a proliferator could recover radiation exposure to workers, the Assistant Secretary for Environmental the plutonium from the vitrified (glass) public, and the environment from Management. matrix if the necessary resources and accidental criticality incidents, leaks, [FR Doc. 95–4308 Filed 2–21–95; 8:45 am] proper technology were available. The and disruptions to engineered systems BILLING CODE 6450±01±P processing to metal alternative would from earthquakes. result in a form of plutonium that closely resembles materials used in VI. Decision DEPARTMENT OF ENERGY weapons production. DOE does not DOE has decided to implement the believe that processing these solutions Golden Field Office; Notice of Federal preferred alternative, processing the F- to metal and storing the metal in vaults Assistance Award to WalMart Stores, Canyon plutonium solutions to metal, as in protected areas of the SRS, adding Incorporated discussed in the Final F-Canyon appreciably less than one percent to the AGENCY: Department of Energy. U.S. inventory of many metric tons, Plutonium Solutions EIS. Concurrent would constitute a proliferation risk. with the processing, packaging and ACTION: Notice of Financial Assistance DOE has committed to not using storage of the metal, which is expected Award in Response to an Unsolicited plutonium-239 and weapons-usable to take about 20 months, DOE will Financial Assistance Application; DE– highly enriched uranium separated or undertake activities to modify part of FG36–95G010057. the FB-Line facility to provide the stabilized during the phaseout, SUMMARY: The U.S. Department of shutdown, and cleanout of weapons capability to repackage the plutonium metal into a configuration that meets the Energy (DOE), pursuant to the DOE complex facilities for nuclear explosive Financial Assistance Rules, 10 CFR purposes. This prohibition would apply DOE standard for long-term storage of plutonium. The plutonium metal 600.14, is announcing its intention to to the plutonium metal produced as a grant funding to WalMart Stores, result of the decision to process the F- resulting from this action will not be used for nuclear explosive purposes. Incorporated to implement Canyon plutonium solutions to metal. photovoltaics in the City of Industry DOE believes that the processing to VII. Mitigation Environmental Demonstration Store’s metal alternative is fully consistent with vestibule to power battery-operated the Presidential Nonproliferation and The F-Canyon and FB-Line facilities shopping carts, store equipment and an Export Control Policy, under which the that will be used to process the electric demonstration vehicle. United States ‘‘* * * will seek to plutonium solutions to metal ADDRESSES: Questions regarding this eliminate where possible the incorporate engineered features to limit accumulation of stockpiles of highly- announcement may be addressed to the the potential impacts of facility U.S. Department of Energy, Golden enriched uranium or plutonium, and to operations to workers, the public and ensure that where these materials Field Office, 1617 Cole Blvd., Golden, the environment. All of the engineered Colorado 80401, Attention: John P. already exist they are subject to the systems and administrative controls are highest standards of safety, security, and Motz, Contract Specialist. The subject to the startup requirements of telephone number is 303–275–4737. international accountability.’’ DOE Order 5480.31, which will assure, Furthermore, in accordance with the The Contracting Officer for this action is prior to startup, the safe operation of the John W. Meeker. provision in this Policy to submit U.S. facilities. No other mitigation measures SUPPLEMENTARY INFORMATION: DOE has fissile material surplus to national have been identified; therefore, DOE evaluated, in accordance with the DOE security requirements to inspection by need not prepare a Mitigation Action Federal Assistance Regulations, 10 CFR the International Atomic Energy Agency Plan. (IAEA), the Department intends to offer section 600.14, the unsolicited proposal this material along with other material VIII. Conclusion entitled ‘‘Building Integrated at the SRS for IAEA inspection when Photovoltaic System’’ and recommends the material is in a form and DOE has determined that the F- that the unsolicited proposal be consolidated in a storage facility Canyon and FB-Line facilities should be accepted for support without further suitable for safe and effective operated to process to metal competition in accordance with section monitoring by the IAEA. approximately 303,000 liters (80,000) 600.14 of the Federal Assistance gallons of plutonium solutions currently Regulations. V. Environmentally Preferable stored in F-Canyon. In reaching this The proposed WalMart Store for City Alternative decision, DOE considered the analysis of Industry, California, has been As shown in the Final F-Canyon of the potential environmental impacts selected by WalMart as one of the Plutonium Solutions EIS, the potential of alternatives for stabilizing this ‘‘Environmental Demonstration Stores’’. environmental impacts of implementing material in the Final F-Canyon WalMart’s Environmental any of the alternatives are generally Plutonium Solutions EIS. This action Demonstration Store program was small and within the same range. DOE will produce a solid form of plutonium established to investigate the feasibility believes that any of the action that will be safer and easier to store than of various environmentally sensitive alternatives would be preferable to the a liquid solution. It will take less time options for building design and no action alternative because the than other alternatives and will development. The City of Industry store inherent risk of storing plutonium in therefore eliminate more quickly the has been designated to test energy liquid form would be eliminated. DOE risk inherent in storing plutonium in efficiency concepts such as the considers the processing to metal liquid form. The plutonium metal proposed implementation of alternative the environmentally resulting from this action will be stored photovoltaics. preferable alternative because it would at the Savannah River Site pending The proposed photovoltaic system eliminate the inherent risk of decisions on its disposition and will not will be used as roofing of the entrance maintaining plutonium in solution in be used for nuclear explosive purposes. vestibule canopy. The energy produced 9830 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices by the system is intended to power Environmental Quality, and the Office Washington, DC 20585 between 9:00 battery-operated handicap shopping of Management and Budget with advice, a.m. and 4:00 p.m., Monday through carts, store equipment, and an electric information, and recommendations on Friday, except Federal holidays. The demonstration vehicle. Energy in excess how new and existing Department of transcript also will be made available at of those needs would be converted to Energy (DOE) facilities and operations, the Department’s Field Office Reading AC and directed into the electric utility except those operations covered under Room locations. grid. The schematic design includes Executive Order 12344 (Naval Issued at Washington, DC on February 16, kiosks on both sides of the entry Propulsion Program), might best be 1995. vestibule. One kiosk would house the regulated with regard to nuclear safety. Gail Cephas, The Department currently self-regulates recharging station for the DC-powered Acting Deputy Advisory Committee equipment and the other would contain many aspects of nuclear safety, pursuant Management Officer. to the Atomic Energy Act of 1954, as an educational display. [FR Doc. 95–4311 Filed 2–21–95; 8:45 am] The objectives of this project are to amended. The Committee consists of 24 educate the public on global energy members drawn from Federal and State BILLING CODE 6450±01±P sustainability, promote alternative government and the private sector, and energy sources, and assist in making is co-chaired by John F. Ahearne, Office of Energy Efficiency and innovative technology feasible and Executive Director of Sigma Xi and Renewable Energy accessible to mainstream America. Gerard F. Scannell, President of the Furthermore, the effort may serve as an National Safety Council. Members were State Energy Advisory Board effective example of corporate response chosen with environment, safety, and to the Clinton Administration’s goal of health backgrounds, balanced to AGENCY: Department of Energy. public-private cooperation to reduce represent different public, Federal, state, ACTION: Notice of open meeting. greenhouse gases. Tribal, and industry interests and SUMMARY: Pursuant to the provisions of The total program cost is estimated to experience. the Federal Advisory Committee Act be $234,400, with the DOE share being Purpose of the Meeting: This is the (Public Law 92–463; 86 Stat. 770), $100,000 or 43%. This notice is first meeting of the Committee. The notice is hereby given of the following published for public comment at least Committee will receive information meeting: State Energy Advisory Board. fourteen calendar days prior to making from DOE officials and begin to organize an award. its future work. Date and Time: March 22–23, 1995 from Tentative Agenda: 9:00 am to 5:00 pm. Issued in Golden, Colorado, on February The meeting will address Place: The Madison Hotel, 15th and M 10, 1995. administrative and organizational issues Streets, Washington, DC, 20005. John W. Meeker, for the Committee. The Committee will Contact: William J. Raup, Office of Chief, Procurement, GO. receive presentations on the mission Technical and Financial Assistance (EE–50), [FR Doc. 95–4310 Filed 2–21–95; 8:45 am] and operations of the Department, the Energy Efficiency and Renewable Energy, U.S. Department of Energy, Washington, DC BILLING CODE 6450±01±M legal framework for current regulation of 20585, Telephone 202/586–2214. DOE activities, and DOE practices for Purpose of the Board: To make oversight of environment, safety and recommendations to the Assistant Secretary Advisory Committee on External health. The agenda for both days will for Energy Efficiency and Renewable Energy Regulation of Department of Energy provide opportunities for public regarding goals and objectives and Nuclear Safety comment. A final agenda will be programmatic and administrative policies, available at the meeting. and to otherwise carry out the Board’s AGENCY: Department of Energy. Public Participation: The meeting is responsibilities as designated in the State ACTION: Notice of open meeting. open to the public. Written statements Energy Efficiency Programs Improvement Act may be filed with the Committee either of 1990 (P.L. 101–440). SUMMARY: Pursuant to the provisions of Tentative Agenda: Briefings on, and the Federal Advisory Committee Act before or after the meeting. Members of discussions of: (Pub. L. 92–463, 86 Stat. 770), notice is the public are welcome to make oral • The report ‘‘Alternative Futures for the hereby given of the first meeting of the statements. Those who wish to do so Department of Energy National Laboratories,’’ Advisory Committee on External should contact Tom Isaacs at the prepared by the Secretary of Energy Advisory address or telephone number listed Board (Galvin Task Force). Regulation of Department of Energy • Nuclear Safety. above. Individuals may also register on The FY 1996 Federal budget request for March 9 and 10, 1995 at the meeting Energy Efficiency and Renewable Energy DATE AND TIMES: Thursday, March 9, site. Every effort will be made to hear programs. 1995, 8:30 a.m. to 5:00 p.m.; and Friday, • all those wishing to speak. Written Review and approval of current Board March 10, 1995, 8:30 a.m. to 3:30 p.m. Annual Report. comments will be received up to five ADDRESSES: United States Department of Public Participation: The meeting is open days after the meeting, and should be to the public. Written statements may be filed Energy, Forrestal Building, Room 1E– mailed to Catherine Volk, 1726 M St. 245, 1000 Independence Avenue, SW., with the Board either before or after the NW, Suite 401, Washington, DC 20036. meeting. Members of the public who wish to Washington, DC 20585. The Committee Co-Chairs are make oral statements pertaining to agenda FOR FURTHER INFORMATION CONTACT: empowered to conduct the meeting in a items should contact William J. Raup at the Catherine Volk, Advisory Committee on fashion that will facilitate the orderly address or telephone number listed above. External Regulation of Department of conduct of business. Requests to make oral presentations must be Energy Nuclear Safety, 1726 M Street, Transcripts and Minutes: A meeting received five days prior to the meeting; NW, Suite 401, Washington, DC 20036, transcript and minutes will be available reasonable provision will be made to include (202) 254–3826. the statements in the agenda. The Chair of for public review and copying four to the Board is empowered to conduct the SUPPLEMENTARY INFORMATION: Purpose of six weeks after the meeting at the DOE meeting in a fashion that will facilitate the the Committee: The purpose of the Freedom of Information Public Reading orderly conduct of business. Committee is to provide the Secretary of Room, 1E–190, Forrestal Building, 1000 Minutes: The minutes of the meeting will Energy, the White House Counsel on Independence Avenue, SW, be available for public review and copying Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9831 within 30 days at the Freedom of Information Capitol Street, NE, Washington, DC Comment date: March 1, 1995, in Public Reading Room, 1E–190, Forrestal 20426 until March 14, 1995. All written accordance with Standard Paragraph E Building, 1000 Independence Avenue, SW., comments should clearly show the at the end of this notice. Washington, DC, between 9 a.m. and 4 p.m., following caption on the first page: Monday through Friday, except Federal 4. Mississippi Power Company holidays. Nisqually (P–1862) DEIS. Issued at Washington, DC, on February 16, For further information, please contact [Docket No. ER95–138–002] 1995. Edward R. Meyer at (202) 208–7998. Take notice that on February 1, 1995, Gail Cephas, Lois D. Cashell, Mississippi Power Company tendered Acting Deputy Advisory Committee Secretary. for filing a modification to its practice Management Officer. [FR Doc. 95–4235 Filed 2–21–95; 8:45 am] under its interchange agreement with [FR Doc. 95–4309 Filed 2–21–95; 8:45 am] BILLING CODE 6717±01±M South Mississippi Electric Power BILLING CODE 6450±01±P Association. The purpose of this modification is to allow for the in kind [Docket No. ER94±1359±001, et al.] payment of allowances prior to the EPA Federal Energy Regulatory reporting date rather than at the time of Consolidated Edison Company of New Commission the transaction. York, Inc., et al. Electric Rate and Comment date: March 1, 1995, in [Project No. 1862±014±WA] Corporate Regulation Filings accordance with Standard Paragraph E City of Tacoma; Notice of Intent To February 15, 1995. at the end of this notice. Hold a Public Meeting in Eatonville, Take notice that the following filings 5. Alabama Power Company Washington To Discuss the Draft have been made with the Commission: [Docket No. ER95–149–002] Environmental Impact Statement 1. Consolidated Edison Company of Take notice that on January 30, 1995, (DEIS) for the Existing Nisqually New York, Inc. Hydroelectric Project Alabama Power Company tendered for [Docket No. ER94–1359–001] filing amended procedures applicable to February 15, 1995. Take notice that on January 31, 1995, its recovery of emission allowance In December 1994, the Commission Consolidated Edison Company of New replacement costs under the staff mailed the DEIS for the licensing York, Inc. (Con Edison) tendered for Interconnection Agreement Between of the existing hydroelectric project, filing a Compliance Report in the above- Alabama Power Company and Alabama which consists of two adjacent referenced docket. Electric Cooperative, Inc., and the hydroelectric generating facilities in the Con Edison states that a copy of this Agreement for Transmission Service to Nisqually River Basin, to the filing has been served by mail upon the Distribution Cooperative Members of Environmental Protection Agency, New York State Electric and Gas Alabama Electric Cooperative. The resource and land management Corporation and the Public Service purpose of the filing is to comply with agencies, and interested organizations Commission of the State of New York. the Commission’s Order of December and individuals. This document Comment date: March 1, 1995, in 30, 1994 in Docket No. ER95–149–000. evaluates the environmental and accordance with Standard Paragraph E Comment date: March 1, 1995, in economic consequences of relicensing at the end of this notice. accordance with Standard Paragraph E the applicant’s (City of Tacoma 2. Carolina Power & Light Company at the end of this notice. (Tacoma)) existing 45 MW Alder facility and existing 69 MW LaGrande facility [Docket No. ER95–27–000] 6. Illinois Power Company with enhancements as proposed by Take notice that on January 27, 1995, [Docket No. ER95–285–000] Tacoma, and alternatives to the Carolina Power & Light Company Take notice that on January 31, 1995, applicant’s proposal. tendered for filing an amendment in the Illinois Power Company tendered for The alternatives to the applicant’s above-referenced docket. filing an amendment in the above- proposal include: no action (continued Comment date: March 1, 1995, in referenced docket. operation without any enhancement); accordance with Standard Paragraph E and Tacoma’s proposal with alternative at the end of this notice. Comment date: March 1, 1995, in operation and enhancements of accordance with Standard Paragraph E 3. Southern Company Services, Inc. recreation, fishery, and wildlife at the end of this notice. resources and other measures requested [Docket No. ER95–59–002] 7. Tampa Electric Company by conservation intervenors, agencies, Take notice that on January 30, 1995, [Docket No. ER95–335–000] and staff. Southern Company Services, Inc., as The public meeting, which will be agent for Alabama Power Company, Take notice that on February 8, 1995, recorded by an official stenographer, is Georgia Power Company, Gulf Power Tampa Electric Company tendered for scheduled for 7:00 p.m. on Wednesday, Company, Mississippi Power Company, filing an amendment in the above- March 1, 1995 at the Eatonville High and Savannah Electric and Power referenced docket. School Theater, 302 Mashell Avenue Company, tendered for filing amended Comment date: March 1, 1995, in North, Eatonville, Washington. procedures applicable to its recovery of accordance with Standard Paragraph E At the meeting, resource agency emission allowance replacement costs at the end of this notice. personnel and other interested persons under the Intercompany Interchange 8. Allegheny Power Service will have the opportunity to provide Contract of Southern Companies, Corporation oral and written comments and various unit power sales agreements, recommendations regarding the DEIS for and various interchange agreements [Docket No. ER95–510–000] the Commission’s public record. In with certain neighboring utilities. The Take notice that on February 1, 1995, addition, written comments may be purpose of the filing is to comply with Allegheny Power Service Corporation filed with the Secretary, Federal Energy the Commission’s Order of December tendered for filing an amendment in the Regulatory Commission, 825 North 30, 1994 in Docket No. ER95–59–000. above-referenced docket. 9832 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices Comment date: March 1, 1995, in Transmission Service Agreement with Comment date: March 1, 1995, in accordance with Standard Paragraph E Enron Power Marketing, Inc. which was accordance with Standard Paragraph E at the end of this notice. accepted for filing by the Commission at the end of this notice. on January 31, 1995 in Docket No. 9. NorAm Energy Services, Inc. 15. PacifiCorp ER95–334–000 and Iowa-Illinois’ [Docket No. ER95–512–000] Transmission Service Agreement with [Docket No. ER95–547–000] Take notice that on January 30, 1995, four other power marketers submitted Take notice that on February 3, 1995, NorAm Energy Services, Inc. (NorAm) for filing on January 13, 1995 in Docket PacifiCorp, tendered for filing in tendered for filing copies of a Power No. ER95–426–000. Iowa-Illinois further accordance with 18 CFR Part 35 of the Sales Agreement between Central states that under the Agreement it will Commission’s Rules and Regulations, Louisiana Electric Company, Inc. and provide non-firm transmission service new and amended Exhibits to the NorAm. to ECI on a monthly, weekly, daily or Cooperative Communications hourly basis to transmit power and 10. New England Power Company Agreement, Contract No. DE–MS79– associated energy from certain defined 92BP93740, between PacifiCorp and [Docket No. ER95–539–000] points to other defined points on Iowa- Bonneville Power Administration. Illinois’ interconnected electric system. Take notice that on February 2, 1995, PacifiCorp request that these Exhibits Service will be provided upon request New England Power Company tendered be accepted pursuant to 18 CFR 35.3 of by ECI on an as available basis as for filing a contract with Catex-Vitol the Commission’s Rules and determined by Iowa-Illinois. Electric, Inc. for the provision of Regulations. exchange unit capacity. Iowa-Illinois requests a waiver of the Copies of this filing were supplied to Comment date: March 1, 1995, in Commission’s 60-day notice the Public Utility Commission of accordance with Standard Paragraph E requirement in order to permit the Oregon and the Washington Utilities at the end of this notice. Agreement to become effective on or and Transportation Commission. before March 6, 1995. 11. PacifiCorp Copies of the filing were served upon Comment date: March 1, 1995, in [Docket No. ER95–540–000] the Iowa Utilities Board, the Illinois accordance with Standard Paragraph E Take notice that on February 2, 1995, Commerce Commission and ECI. at the end of this notice. PacifiCorp tendered for filing in Comment date: March 1, 1995, in 16. Southern Company Services, Inc. accordance with 18 CFR Part 35 of the accordance with Standard Paragraph E [Docket No. ER95–548–000] Commission’s Rules and Regulations, a at the end of this notice. revision to the Annual Charge Rate Take notice that on February 3, 1995, Calculation, Supplement No. 2 to 13. Northeast Utilities Service Company Southern Company Services, Inc. (SCS), PacifiCorp Rate Schedule FERC No. 234, [Docket No. ER95–542–000] acting on behalf of Alabama Power Company, Georgia Power Company, for transmission service pursuant to the Take notice that on February 2, 1995, Gulf Power Company, Mississippi Operations and Maintenance Agreement Northeast Utilities Service Company Power Company, and Savannah Electric for Swift No. 2 between PacifiCorp and (NUSCO), tendered for filing a Service and Power Company (collectively the Public Utility District No. 1 of Agreement to provide non-firm referred to as ‘‘Southern Companies’’) Cowlitz County (Cowlitz), PacifiCorp transmission service to Catex Vitol filed a Service Agreement dated as of Rate Schedule FERC No. 234. Electric Inc. (Catex) under the NU January 23, 1995 between Florida Power PacifiCorp requests that the revised System Companies’ Transmission Corporation and SCS (as agent for Annual Charge Rate Calculation be Service Tariff No. 2. accepted within sixty days of the Southern Companies) for service under Commission’s receipt of this filing. NUSCO states that a copy of this filing the Short Term Non-Firm Transmission Copies of this filing were supplied to has been mailed to Catex. Service Tariff of Southern Companies. Cowlitz, the Washington Utilities and NUSCO requests that the Service Comment date: March 1, 1995, in Transportation Commission and the Agreement become effective sixty (60) accordance with Standard Paragraph E Public Utility Commission of Oregon. days after receipt of this filing by the at the end of this notice. Comment date: March 1, 1995, in Commission. accordance with Standard Paragraph E Comment date: March 1, 1995, in 17. New England Power Company at the end of this notice. accordance with Standard Paragraph E [Docket No. FA91–53–002] at the end of this notice. 12. Iowa-Illinois Gas & Electric Take notice that on January 24, 1995, Company 14. Potomac Electric Power Company New England Power Company tendered for filing its refund report in the above- [Docket No. ER95–541–000] [Docket No. ER95–543–000] referenced docket. Take notice that on February 2, 1995, Take notice that on February 2, 1995, Comment date: March 1, 1995, in Iowa-Illinois Gas and Electric Company Potomac Electric Power Company accordance with Standard Paragraph E (Iowa-Illinois), 206 East Second Street, submitted an explanation of Pepco’s at the end of this notice. P.O. Box 4350, Davenport, Iowa 52808, treatment of the cost of emission tendered for filing pursuant to § 35.12 of allowances in its as-available power 18. Ohio Power Company sales tariff, and makes minor corrections the Regulations under the Federal [Docket No. FA92–60–001] Power Act an initial rate schedule to the original submittal. This filing has consisting of a Transmission Service no substantive effect upon the services Take notice that on January 27, 1995, Agreement dated as of December 16, rendered and makes no change in rates. Ohio Power Company tendered for 1994 between Iowa-Illinois and Electric Pursuant to the Commission’s ‘‘Policy filing its compliance report in the Clearinghouse, Inc. (ECI). Statement and Interim Rule’’ on above-referenced docket. Iowa-Illinois states that the terms and emission allowance costs and with Comment date: March 1, 1995, in conditions of this Agreement are waiver of notice, an effective date of accordance with Standard Paragraph E identical in all respects to Iowa-Illinois’ January 1, 1995 is requested. at the end of this notice. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9833 Standard Paragraphs [Project Nos. 11501±000, et al.] h. Applicant Contact: Jan Marie Evans, 4572 Sequoia, Okemos, MI E. Any person desiring to be heard or Hydroelectric Applications Putnam to protest said filing should file a 48864, (517) 351–5400. Hydropower Inc., et al.; Notice of i. FERC Contact: Julie Bernt (202) motion to intervene or protest with the Applications Federal Energy Regulatory Commission, 219–2814. 825 North Capitol Street, N.E., Take notice that the following j. Comment Date: 60 days from the Washington, D.C. 20426, in accordance hydroelectric applications have been filing date in paragraph c. with Rules 211 and 214 of the filed with the Commission and are k. Description of Project: The Commission’s Rules of Practice and available for public inspection: proposed project consists of: (1) An Procedure (18 CFR 385.211 and 18 CFR 1 a. Type of Application: Preliminary existing 6-foot-high gravity-earth filled 385.214). All such motions or protests permit. dam; (2) an existing reservoir with a should be filed on or before the b. Project No.: 11501–000. surface area of 25 acres at a maximum pool elevation of 738.5 feet USGS and comment date. Protests will be c. Date Filed: September 26, 1994. a storage capacity of 100 acre-feet; (3) a considered by the Commission in d. Applicant: Putnam Hydropower 1,200-foot-long head race canal; (4) a determining the appropriate action to be Inc. powerhouse containing one generating taken, but will not serve to make e. Name of Project: Cargill Falls. unit with a rated capacity of 600 Kw; protestants parties to the proceeding. f. Location: On the Quinebaug River Any person wishing to become a party and, (5) appurtenant facilities. The in the Town of Putnam, Windham applicant estimates that the total must file a motion to intervene. Copies County, Connecticut. of this filing are on file with the average annual generation would be g. Filed Pursuant to: Federal Power 1,800,000 Kwh. The project site is Commission and are available for public Act, 16 U.S.C. 791(a)–825(r). inspection. owned by Commonwealth Power h. Applicant Contact: Mr. Charles Company. Lois D. Cashell, Rosenfield, 87 Senexet Road, l. With this notice, we are initiating Secretary. Woodstock, CT 06281, (203) 928–7100. consultation with the Michigan State [FR Doc. 95–4232 Filed 2–21–95; 8:45 am] i. FERC Contact: Charles T. Raabe (dt), Historic Preservation Officer (SHPO), as BILLING CODE 6717±01±M (202) 219–2811. required by section 106, National j. Comment Date: April 10, 1995. Historic Preservation Act, and the k. Description of Project: The [Docket No. QF88±20±002] regulations of the Advisory Council on proposed project would consist of: (1) Historic Preservation, 36 CFR 800.4. Washington Power Co., L.P.; Notice of The existing 200-foot-long concrete m. Pursuant to Section 4.32(b)(7) of 18 Amendment to Filing dam; (2) a reservoir with a 15-acre CFR of the Commission’s regulations, if surface area and a 60-acre-foot storage any resource agency, Indian Tribe, or February 15, 1995. capacity at normal surface elevation 254 person believes that an additional On February 14, 1995, Washington feet MSL; (3) an intake having 4 wooden scientific study should be conducted in Power Company, L.P. tendered for filing gates; (4) a forebay having trashracks; (5) order to form an adequate factual basis an amendment to its January 13, 1995, a 300-foot-long covered canal leading to for complete analysis of the application filing in this docket. a forebay and a 100-foot-long, 7.5-foot- on its merit, the resource agency, Indian The amendment pertains to technical diameter steel penstock; (6) an existing Tribe, or person must file a request for requirements of the cogeneration powerhouse containing a new 650-kW a study with the Commission not later facility. No determination has been generating unit operated at a 28-foot than 60 days from the filing date and made that the submittal constitutes a head and at a flow of 375 CFS; (7) an serve a copy of the request on the complete filing. 800-foot-long stone canal tailrace; (8) a applicant. 100-foot-long 480-volt transmission line Any person desiring to be heard or 3 a. Type of Application: Preliminary and a 480-volt/23-kV transformer; and objecting to the granting of qualifying permit. (9) appurtenant facilities. status should file a motion to intervene b. Project No.: 11502–000. or protest with the Federal Energy The applicant estimates that the cost c. Date Filed: October 3, 1994. Regulatory Commission, 825 North of the studies under the terms of the d. Applicant: Town of Ely. Capitol Street NE., Washington, DC permit would be $10,000 and the e. Name of Project: Red Rock. 20426, in accordance with rules 211 and average annual generation would be f. Location: On the Des Moines River 214 of the Commission’s Rules of 3,000,000 kWh. Project power would be in Marion County, Iowa. Practice and Procedure. All such sold to Connecticut Light & Power Co. g. Filed Pursuant to: Federal Power motions or protests must be filed by The owners of the facilities are the Act, 16 U.S.C. 791(a)—825(r). March 7, 1995, and must be served on Town of Putnam and the Polyner Corp. h. Applicant Contact: Mr. Thomas J. the applicant. Protests will be l. This notice also consists of the Wilkinson, Jr., 101 Second Street, S.E., considered by the Commission in following standard paragraphs: A5, A7, American Building, Suite 300, Cedar determining the appropriate action to be A9, A10, B, C & D2. Rapids, IA 52401, (319) 366–4990. taken but will not serve to make 2 a. Type of Application: Minor i. FERC Contact: Charles T. Raabe (dt) protestants parties to the proceeding. license. (202) 219–2811. Any person wishing to become a party b. Project No.: 11516–000. j. Comment Date: April 22, 1995. must file a petition to intervene. Copies c. Date filed: January 25, 1995. k. Description of Project: The of this filing are on file with the d. Applicant: Commonwealth Power proposed project would utilize the Commission and are available for public Company. existing U.S. Army Corps of Engineers’ inspection. e. Name of Project: Irving Dam. Red Rock Dam and would consist of: (1) Lois D. Cashell, f. Location: On the Thornapple River A new intake structure; (2) two 21-foot- Secretary. near Irving in Barry County, Michigan. diameter steel penstocks; (3) a [FR Doc. 95–4234 Filed 2–21–95; 8:45 am] g. Filed Pursuant to: Federal Power powerhouse containing two generating BILLING CODE 6717±01±M Act 16 U.S.C. 791(a)—825(r). units with a total installed capacity of 9834 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 30 MW; (4) a tailrace, (5) a 6-mile-long Thomas H. Nelson, Stoel Rives Boley application. Submission of a timely transmission line; and (6) appurtenant Jones & Grey, 900 S.W. Fifth Avenue, notice of intent to file a development facilities. Portland, OR 97204, (503) 294–9281. application allows an interested person Applicant estimates that the average i. FERC Contact: He´ctor M. Pe´rez, to file the competing application no annual energy production would be (202) 219–2843. later than 120 days after the specified 110,000 Mwh and that the cost of the j. Brief Description of Project: The comment date for the particular studies to be performed under the terms project consists of: the 29–MW Lemolo application. A competing license of the permit would be $200,000. Project No. 1 Development, the 33–MW Lemolo application must conform with 18 CFR energy would be sold to municipalities No. 2 Development, the 15–MW 4.30(b)(1) and (9) and 4.36. in the state of Iowa and other users. Clearwater No. 1 Development, the 26– A9. Notice of intent—A notice of 1. This notice also consists of the MW Clearwater No. 2 Development, the intent must specify the exact name, following standard paragraphs: A5, A7, 42.5–MW Tokete Development, the 11– business address, and telephone number A9, A10, B, C & D2. MW Fish Creek Development, the 18– of the prospective applicant, and must 4 a. Type of Application: Exemption MW Slide Creek Development, and the include an unequivocal statement of 5 MW or less (Tender Notice). 11–MW Soda Spring Development for a intent to submit, if such an application b. Project No.: 11316–002. total rated capacity of 185,500 MW. The may be filed, either a preliminary c. Date filed: January 31, 1995. applicant proposes some modifications permit application or a development d. Applicant: Iliamna-Newhalen- to project components including application (specify which type of Nondalton Electric Cooperative, Inc. uprating the Fish Creek Development to application). A notice of intent must be e. Name of Project: Tazimina. 14.5 MW. served on the applicant(s) named in this f. Location: On the Tazimina River, k. With this notice, we are initiating public notice. near Iliamna, Newhalen, and consultation with the State Historic A10. Proposed Scope of Studies under Nondalton, Section 24, Range 32 West, Preservation Officer (SHPO), as required Permit—A preliminary permit, if issued, Township 3 South, Seward Meridian, in by § 106, National Historic Preservation does not authorize construction. The Southcentral Alaska. Act, and the regulations of the Advisory term of the proposed preliminary permit g. Filed Pursuant to: Federal Power Council on Historic Preservation, 36 will be 36 months. The work proposed Act 16 USC 791(a)–825(r). CFR 800.4. under the preliminary permit would h. Applicant Contact: Brent Petrie, l. In accordance with section 4.32 include economic analysis, preparation General Manager, INNEC, P.O. Box 210, (b)(7) of the Commission’s regulations, if of preliminary engineering plans, and a Iliamna, Alaska 99606, (907) 571–1259. any resource agency, SHPO, Indian study of environmental impacts. Based i. FERC Contact: He´ctor M. Pe´rez at Tribe, or person believes that an on the results of these studies, the (202) 219–2843. additional scientific study should be Applicant would decide whether to j. The proposed project would consist conducted in order to form an adequate, proceed with the preparation of a of: (1) A 100-foot-long concrete channel factual basis for a complete analysis of development application to construct control sill; (2) an intake structure about this application on its merits, they must and operate the project. 50 feet downstream and on the opposite file a request for the study with the B. Comments, Protests, or Motions to side of the concrete sill; (3) a 5-foot- Commission, together with justification Intervene—Anyone may submit diameter, 430-foot-long welded steel for such request, not later than 60 days comments, a protest, or a motion to penstock; (4) a powerhouse with two from the filing date and serve a copy of intervene in accordance with the 350-kW units; (5) a 6.7-mile-long the request on the Applicant. requirements of Rules of Practice and transmission line; and (6) other Procedure, 18 CFR 385.210, .211, .214. appurtenances. Standard Paragraphs In determining the appropriate action to k. Under Section 4.32(b)(7) of the A5. Preliminary Permit—Anyone take, the Commission will consider all Commission’s regulations (18 CFR desiring to file a competing application protests or other comments filed, but 4.32(b)(7)), if any resource agency, for preliminary permit for a proposed only those who file a motion to Indian Tribe, or person believes that the project must submit the competing intervene in accordance with the applicant should conduct an additional application itself, or a notice of intent to Commission’s Rules may become a scientific study to form an adequate file such an application, to the party to the proceeding. Any comments, factual basis for a complete analysis of Commission on or before the specified protests, or motions to intervene must the application on its merits, they must comment date for the particular be received on or before the specified file a request for the study with the application (see 18 CFR 4.36). comment date for the particular Commission, not later than 60 days after Submission of a timely notice of intent application. the application is filed, and must serve allows an interested person to file the B. Protests or Motions to Intervene— a copy of the request on the applicant. competing preliminary permit Anyone may submit a protest or a 5 a. Type of Application: Major New application no later than 30 days after motion to intervene in accordance with License (Notice of Tendering). the specified comment date for the the requirements of Rules of Practice b. Project No.: 1927–008. particular application. A competing and Procedure, 18 CFR 385.210, c. Date filed: January 30, 1995. preliminary permit application must 385.211, and 385.214. In determining d. Applicant: PacifiCorp. conform with 18 CFR 4.30(b)(1) and (9) the appropriate action to take, the e. Name of Project: North Umpqua. and 4.36. Commission will consider all protests f. Location: On the North Umpqua A7. Preliminary Permit—Any filed, but only those who file a motion River in Douglas County, Oregon. qualified development applicant to intervene in accordance with the g. Filed Pursuant to: Federal Power desiring to file a competing Commission’s Rules may become a Act, 16 USC 791(a)-825(r). development application must submit to party to the proceeding. Any protests or h. Applicant Contact: the Commission, on or before a motions to intervene must be received Stanley A. Desousa, Director, Hydro specified comment date for the on or before the specified deadline date Resources, PacifiCorp, 920 S.W. Sixth particular application, either a for the particular application. Avenue, Portland, OR 97204, (503) competing development application or a C. Filing and Service of Responsive 464–5343 notice of intent to file such an Documents—Any filings must bear in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9835 all capital letters the title OMB Responses to Agency PRA with the 40 CFR part 258 Solid Waste ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Clearance Requests Disposal Facility Criteria; OMB No. TO FILE COMPETING APPLICATION’’, 2050–0122; expiration date extended to OMB Approvals ‘‘COMPETING APPLICATION’’, 06/30/95. ‘‘PROTEST’’, ‘‘MOTION TO EPA ICR No. 1633.06; Revision of Part EPA ICR No. 1488.02; Superfund Site INTERVENE’’, as applicable, and the 72 of the Acid Rain Program under Title Evaluation and Hazard Ranking System; Project Number of the particular IV of the Clean Air Act Amendments of OMB No. 2050–0095; expiration date application to which the filing refers. 1990 (Substitution Plans); was approved extended to 07/31/95. Any of the above-named documents 01/09/95; OMB No. 2060–0258; expires Dated: February 15, 1995. must be filed by providing the original 01/31/96. Paul Lapsley, and the number of copies provided by EPA ICR No. 1717.01; NESHAP for Director, Regulatory Management Division. Off-Site Waste Operations—63-DD; was the Commission’s regulations to: The [FR Doc. 95–4297 Filed 2–21–95; 8:45 am] approved 12/30/94; OMB No. 2060– Secretary, Federal Energy Regulatory BILLING CODE 6560±50±F Commission, 825 North Capitol Street, 0313; expires 12/31/97. N.E., Washington, D.C. 20426. An EPA ICR No. 1136.04; NSPS for additional copy must be sent to Petroleum Refinery Wastewater [ECAO±RTP±0237; FRL±5157±7] Director, Division of Project Review, Systems–Reporting and Recordkeeping– Draft Health Assessment Document for Federal Energy Regulatory Commission, Subpart QQQ; was approved 01/17/95; Diesel Emissions Room 1027, at the above-mentioned OMB No. 2060–0172; expires 12/31/97. EPA ICR No. 1723.01; Reporting and address. A copy of any notice of intent, AGENCY: Environmental Protection Recordkeeping Requirements for the competing application or motion to Agency. intervene must also be served upon each Importation of Nonconforming Marine Engines; was approved 01/09/95; OMB ACTION: Notice of extension of public representative of the Applicant comment period. specified in the particular application. No. 2060–0320; expires 01/31/98. EPA ICR No. 1727.01; Evaluation of SUMMARY: This notice announces the D2. Agency Comments—Federal, Mandated Drinking Water Filtration and state, and local agencies are invited to extension of the public comment period its Effects on Community Health; was for the Health Assessment for Diesel file comments on the described approved 01/09/95; OMB No. 2080– application. A copy of the application Emissions. This draft document was 0050; expires 01/31/98. prepared by the U.S. Environmental may be obtained by agencies directly EPA ICR No. 1071.05; NSPS for from the Applicant. If an agency does Protection Agency’s (EPA) Office of Stationary Gas Turbines (Subpart GG)– Research and Development (ORD). not file comments within the time Information Requirements; was DATES: In the December 23, 1994 specified for filing comments, it will be approved 01/09/95; OMB No. 2060– Federal Register (59 FR 66305), EPA presumed to have no comments. One 0028; expires 01/31/98. copy of an agency’s comments must also EPA ICR No. 1731.01; National announced that the public review and be sent to the Applicant’s Survey of Radiological Laboratory comment period for the external review representatives. Capability; was approved 01/23/95; draft of this document would be from OMB No. 2080–0051; expires 12/31/97. December 27, 1994, through February Dated: February 15, 1995. 28, 1995. EPA is now extending the Lois D. Cashell, OMB Disapprovals comment period through May 1, 1995. Secretary. EPA ICR No. 1724.01; Marine Engine Comments must be in writing and must [FR Doc. 95–4286 Filed 2–21–95; 8:45 am] Selective Enforcement Auditing, be postmarked by May 1, 1995. BILLING CODE 6717±01±P Reporting, and Recordkeeping ADDRESSES: To obtain a copy of the Requirements; was disapproved 01/09/ external review draft of the Health 95. Assessment Document for Diesel EPA ICR No. 1725.01; Marine Engine Emissions (Volumes I and II), interested ENVIRONMENTAL PROTECTION Manufacturers Assembly-Line Testing; parties should contact the ORD AGENCY Reporting, and Recordkeeping Publications Center, U.S. Environmental Requirements; was disapproved 01/09/ Protection Agency, 26 West Martin [FRL±5154±5] 95. Luther King Drive, Cincinnati, OH EPA ICR No. 0282.07; Motor Vehicle 45268; telephone (513) 569–7562 or fax Agency Information Collection Emissions Defect Information Report (513) 569–7566. Please provide your Activities Under OMB Review and Records; was disapproved 01/09/95. name, mailing address, and the EPA EPA ICR No. 1722.01; Emission document numbers (EPA/600/8–90/ AGENCY: Environmental Protection Standards for New Gasoline Spark- 057Ba and Bb). Agency (EPA). Ignition and Diesel Compression- The draft document also is available Ignition Marine Engines, Control of Air for inspection at the EPA Headquarters ACTION: Notice. Pollution; was disapproved 01/09/95. Library, Waterside Mall, 401 M Street, EPA ICR No. 0095.07; Precertification S.W., Washington, DC, between 10:00 SUMMARY: In compliance with the and Testing Exemption Reporting and a.m. and 2:00 p.m., Monday through Paperwork Reduction Act (PRA) (44 Recordkeeping Requirements; was Friday, except holidays. U.S.C. 3501 et seq.), this notice disapproved 01/09/95. Comments on the draft document announces the Office of Management EPA ICR No. 1726.01; Manufacturer- should be sent to the Project Manager and Budget’s (OMB) responses to Based in-Use Emission Testing Program; for Diesel Emissions, Office of Health Agency PRA clearance requests. was disapproved 01/09/95. and Environmental Assessment, Environmental Criteria and Assessment FOR FURTHER INFORMATION CONTACT: OMB Extensions of Expiration Dates Office (MD–52), U.S. Environmental Sandy Farmer (202) 260–2740. EPA ICR No. 1381.03; Recordkeeping/ Protection Agency, Research Triangle SUPPLEMENTARY INFORMATION: Reporting Requirements for Compliance Park, NC 27711. 9836 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices FOR FURTHER INFORMATION CONTACT: determination to approve the State of which contains procedures for making Mr. William G. Ewald, Office of Health New York’s revision to its Public Water corrosion control treatment and Environmental Assessment, Supervision Program for compliance determinations must be changed to Environmental Criteria and Assessment with EPA’s Lead and Copper Rule is ensure the State establishes a range of Office (MD–52), U.S. Environmental conditional upon New York’s State values for pH at entry points to the Protection Agency, Research Triangle making certain minor changes, no later distribution system and ‘‘at taps Park, NC 27711; telephone (919) 541– than January 1, 1996, to the State throughout the distribution system’’. 4164. Sanitary Code and Environmental 5. Section (E)(5) of PWS Item No. 52 SUPPLEMENTARY INFORMATION: The draft Health Manual. The changes required, of the Environmental Health Manual, Health Assessment Document for Diesel which New York State has agreed to which contains procedures for making Emissions summarizes scientific issues make, include the following: lead service line replacement decisions, and identifies research activities and 1. The State must either delete the must be amended by striking the phrase assessments needed to improve the word ‘‘economics’’ in Sections 5–1.46 ‘‘less than 16 ug/L’’ and replacing it scientific understanding and and 5–1.47 of the State Sanitary Code or with the requirement in 40 CFR quantitative estimation of the health clarify, in the Code, that economics will 141.84(c), which reads, ‘‘less than or risks attendant to the use of diesel fuels. only be considered in selecting equal to 0.015 mg/L.’’ In its initial form, the draft health corrosion control treatment when two 6. Section 5–1.40 (a)(1) of the State assessment was first reviewed at an methods are equally effective. Sanitary Code must be changed by expert peer-review workshop in July 2. The State must change Section 5– replacing the phrase ‘‘3,300 people or 1990 (55 FR 28453), which was open to 1.43 of the code to read as follows: less’’ with the phrase ‘‘50,000 people or (e) Distribution Monitoring. All large the public. The present draft less’’. water systems shall monitor for water incorporates revisions made in response 7. The State must adopt as part of the quality parameters in Section 5–1.45 (c) to scientific input from the workshop State Sanitary Code the analytical in each initial six month monitoring and subsequent comments on targeted methods contained in 40 CFR 141.89 of period they monitor for the first draw issues. After the public comment period the federal rule. lead and copper tap samples. All small and review by EPA’s Science Advisory 8. The State must amend the first and medium water systems shall Board (SAB), Clean Air Scientific paragraph in Section 5–1.47 of the State monitor for water quality parameters in Advisory Committee (CASAC), the Sanitary Code to include the phrase Section 5–1.45 (c) during the six month current draft document will undergo ‘‘within 6 months of exceeding the lead monitoring period which the water further revision, and a final document or copper action level’’. system exceeds the copper or lead will be issued. This document will All interested parties, other than action level. After a water system support EPA’s decision-making Federal Agencies, may request a public installs optimal corrosion control processes that pertain to the health hearing. A request for a public hearing treatment the water system shall effects of diesel emissions. must be submitted to the USEPA monitor for water quality parameters for Regional Administrator at the address Dated: February 9, 1995. two consecutive six month monitoring shown below within thirty (30) days Joseph K. Alexander, periods. After the State specifies water after the date of this Federal Register Acting Assistant Administrator for Research quality parameters samples for optimal Notice. If a substantial request for a and Development. corrosion control treatment, all water public hearing is made within the [FR Doc. 95–4292 Filed 2–21–95; 8:45 am] systems shall monitor for water quality required thirty-day period, a public BILLING CODE 6560±50±M parameters at the frequencies stated in hearing will be held and a notice will 5–1.43 (a) for two consecutive six month be given in the Federal Register and a monitoring periods. [FRL±5157±9] A new paragraph Subpart 5–1.43 (d) newspaper of general circulation. Frivolous or insubstantial requests for a Public Water System Supervision must be added as follows: (d) After State specification of hearing may be denied by the Regional Program Revision for the State of New Administrator. If no timely and York minimum values or ranges for water quality parameters for optimal corrosion appropriate request for a hearing is AGENCY: United States Environmental control treatment, water systems shall received and the Regional Administrator Protection Agency (USEPA). maintain water quality parameter does not choose to hold a hearing on his/her motion, this determination shall ACTION: Notice. values at or above specified minimum values or within ranges specified by the become final and effective thirty (30) SUMMARY: Notice is hereby given that State. If the water quality parameters days after publication of this Federal the State of New York is revising its value of any sample is below the Register Notice. approved Public Water System minimum value or outside the range Any request for a public hearing shall Supervision Primary Program. The State specified by the State, the water system include the following information: of New York has adopted drinking water is out of compliance with the State (1) The name, address and telephone regulations that satisfy the National Sanitary Code. number of the individual organization Primacy Drinking Water Regulations for The italic words are revisions to the or other entity requesting a hearing; the Lead and Copper Rule (LCR). Code. (2) A brief statement of the requesting USEPA regulations were promulgated 3. The State must change their person’s interest in the Regional on June 7, 1991 (56 FR 26460). The definition of ‘‘action level’’ in Section Administrator’s determination and a USEPA has determined that New York’s 5–1.41(a) of the State Sanitary Code to brief statement on information that the Lead and Copper regulations are no less be consistent with the language of the requesting person intends to submit at stringent than the corresponding Federal definition of ‘‘action level’’ in such hearing; Federal regulations and that New York 40 CFR 141.2. (3) The signature of the individual continues to meet all requirements for 4. Section (G)(1) of PWS Item No. 51 making the requests or, if the request is primary enforcement responsibility as of the New York State Environmental made on behalf of an organization or specified in 40 CFR 142.10. EPA’s Health Manual, dated March 31, 1993, other entity, the signature of a Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9837 responsible official of the organization All interested parties, other than For further information, you may or other entity. Federal Agencies, may request a public contact: Victor Trinidad, Chief, Water ADDRESSES: Requests for Public Hearing hearing. A request for a public hearing Management Staff, U.S. Environmental shall be addressed to: Regional must be submitted to the USEPA Protection Agency, Caribbean Field Administrator, U.S. Environmental Regional Administrator at the address Office, Centro Europa Building, 1492 Protection Agency—Region II, Jacob K. shown below within thirty (30) days Ponce De Leon Avenue, Suite 417, Javits Federal Building, 26 Federal after the date of this Federal Register Santurce, Puerto Rico 00907, (809) 729– Plaza, New York, New York 10278. Notice. If a substantial request for a 6951. All documents relating to this public hearing is made within the (Sec. 1413 of the Safe Drinking Water Act, as determination are available for required thirty-day period, a public amended, and 40 CFR 142.10 of the NPDWR) inspection between the hours of 9:00 hearing will be held and a notice will Dated: February 3, 1995. be given in the Federal Register and a a.m. and 4:30 pm, Monday through William J. Muszynski, Friday, at the following offices: newspaper of general circulation. Frivolous or insubstantial requests for a Acting Regional Administrator, EPA, Region New York State Department of Health, II. Bureau of Public Water Supply hearing may be denied by the Regional Administrator. If no timely and [FR Doc. 95–4298 Filed 2–21–95; 8:45 am] Protection, 2 University Plaza/ BILLING CODE 6560±50±M Western Avenue, Albany, New York appropriate request for a hearing is 12203–3399, (518) 458–6731 received and the Regional Administrator U.S. Environmental Protection does not choose to hold a hearing on [OPP±34069; FRL 4931±6] Agency—Region II, Public Water his/her motion, this determination shall System Supervision Section Room become final and effective thirty (30) Notice of Receipt of Requests for 853, Jacob K. Javits Federal Building, days after publication of this Federal Amendments to Delete Uses in Certain 26 Federal Plaza, New York, New Register Notice. Pesticide Registrations York 10278 Any request for a public hearing shall include the following information: AGENCY: Environmental Protection For further information, you may (1) The name, address and telephone Agency (EPA). contact: Walter E. Andrews, Chief, number of the individual organization ACTION: Notice. Drinking and Groundwater Protection or other entity requesting a hearing; Branch, U.S. Environmental Protection (2) A brief statement of the requesting SUMMARY: In accordance with section Agency—Region II, (212) 264–1800. person’s interest in the Regional 6(f)(1) of the Federal Insecticide, (Section 1413 of the Safe Drinking Water Act, Administrator’s determination and a Fungicide, and Rodenticide Act as amended, and 40 CFR 142.10 of the brief statement on information that the (FIFRA), as amended, EPA is issuing a NPDWR) requesting person intends to submit at notice of receipt of request for Dated: January 30, 1995. such hearing; amendment by registrants to delete uses William J. Muszynski, (3) The signature of the individual in certain pesticide registrations. Acting Regional Administrator, EPA, Region making the requests or, if the request is DATES: Unless a request is withdrawn, II. made on behalf of an organization or the Agency will approve these use [FR Doc. 95–4300 Filed 2–21–95; 8:45 am] other entity, the signature of a deletions and the deletions will become BILLING CODE 6560±50±M responsible official of the organization effective on May 23, 1995. or other entity. FOR FURTHER INFORMATION CONTACT: By ADDRESSES: Requests for Public Hearing mail: James A. Hollins, Office of [FRL±5158±2] shall be addressed to: Carl-Axel P. Pesticide Programs (7502C), Public Water System Supervision Soderberg—Director, U.S. Environmental Protection Agency, 401 Program Revision for the Government Environmental Protection Agency, M St., SW., Washington, DC 20460. Caribbean Field Office, Centro Europa of the Virgin Islands Office location for commercial courier Building, 1492 Ponce De Leon Avenue, delivery and telephone number: Room AGENCY: United States Environmental Suite 417, Santurce, Puerto Rico 00907. 216, Crystal Mall No. 2, 1921 Jefferson Protection Agency (USEPA). All documents relating to this Davis Highway, Arlington, VA 22202, ACTION: Notice. determination are available for (703) 305–5761. inspection between the hours of 9:00 SUPPLEMENTARY INFORMATION: SUMMARY: Notice is hereby given that a.m. and 4:30 p.m., Monday through the Government of the Virgin Islands is Friday, at the following offices: I. Introduction revising its approved Public Water Department of Planning and Natural Section 6(f)(1) of FIFRA, provides that System Supervision Primacy Program. Resources, Public Water Supply a registrant of a pesticide product may The Government of the Virgin Islands Supervision Program, Government of at any time request that any of its has adopted drinking water regulations the Virgin Islands, Nisky Center, Suite pesticide registrations be amended to that satisfy the National Primary 231, Nisky 45A, St. Thomas, Virgin delete one or more uses. The Act further Drinking Water Regulations for the Lead Islands 00802 provides that, before acting on the and Copper Rule (LCR). USEPA U.S. Environmental Protection Agency, request, EPA must publish a notice of regulations were promulgated on June 7, Caribbean Field Office, Centro Europa receipt of any such request in the 1991 (56 FR 26460). The USEPA has Building, 1492 Ponce De Leon Federal Register. Thereafter, the determined that the Virgin Islands’ Lead Avenue, Suite 417, Santurce, Puerto Administrator may approve such a and Copper regulations are no less Rico 00907 request. stringent than the corresponding U.S. Environmental Protection Federal regulations and that the Virgin Agency—Region II, Public Water II. Intent to Delete Uses Islands continues to meet all System Supervision Section, Room This notice announces receipt by the requirements for primary enforcement 853, Jacob K. Javits Federal Building, Agency of applications from registrants responsibility as specified in 40 CFR 26 Federal Plaza, New York, New to delete uses in the six pesticide 142.10. York 10278 registrations listed in the following 9838 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices Table 1. These registrations are listed by being deleted should contact the members of the public to intercede with registration number, product names/ applicable registrant before May 23, registrants prior to the Agency approval active ingredients and the specific uses 1995 to discuss withdrawal of the of the deletion. deleted. Users of these products who applications for amendment. This 90- desire continued use on crops or sites day period will also permit interested TABLE 1. Ð REGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS EPA Reg No. Product Name Active Ingredient Delete From Label 000869±00180 Green Light 10% Sevin Carbaryl Poultry houses Dust 019713±00046 Simazine 80W Simazine Asparagus, artichokes, sugarcane, non-cropland 019713±00060 Simazine 4L Simazine Asparagus, artichokes, sugarcane, non-cropland 019713±00252 Simazine 90DF Simazine Asparagus, artichokes, sugarcane, non-cropland 019713±00271 Simazine 80W Herbi- Simazine Asparagus, artichokes, sugarcane, non-cropland cide 019713±00273 Simazine 4L Simazine Asparagus, artichokes, sugarcane, non-cropland The following Table 2 includes the names and addresses of record for all registrants of the products in Table 1, in sequence by EPA company number. TABLE 2. Ð REGISTRANTS REQUESTING AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS Com- pany No. Company Name and Address 000869 Green Light Company, P.O. Box 17985, San Antonio, TX 78217. 019713 Drexel Chemical Company, P.O. Box 9306, 2487 Pennsylvania St., Memphis, TN 38190. III. Existing Stocks Provisions DATES: Written comments must be FOR FURTHER INFORMATION CONTACT: The Agency has authorized registrants submitted by March 24, 1995. Product Manager 14, Robert Forrest, Rm. to sell or distribute product under the ADDRESSES: By mail, submit written 219, CM #2, (703–305–6600). SUPPLEMENTARY INFORMATION: EPA previously approved labeling for a comments identified by the document received applications as follows to period of 18 months after approval of control number [OPP–30380] and the register pesticide products containing the revision, unless other restrictions registration/file number, attention an active ingredient not included in any have been imposed, as in special review Product Manager (PM) 14, to: Public actions. previously registered products pursuant Response and Program Resources to the provisions of section 3(c)(4) of Branch, Field Operations Divisions List of Subjects FIFRA. Notice of receipt of these (7506C), Office of Pesticide Programs, applications does not imply a decision Environmental protection, Pesticides Environmental Protection Agency, 401 by the Agency on the applications. and pests, Product registrations. M St., SW., Washington, DC 20460. In Products Containing an Active Dated: February 10, 1995. person, bring comments to: Environmental Protection Agency, Rm. Ingredient Not Included In Any Daniel M. Barolo, 1132, CM #2, 1921 Jefferson Davis Hwy., Previously Registered Products Director, Office of Pesticide Programs. Arlington, VA. 1. File Symbol: 7173–ENU. Applicant: LipaTech, Incorporation, 3101 West [FR Doc. 95–4314 Filed 2–21–95; 8:45 am] Information submitted as a comment BILLING CODE 6560±50±F Custer Ave., Milwaukee, WI 5320. concerning this notice may be claimed Product name: Difethialone Technical. confidential by marking any part or all Rodenticide. Active ingredient: [OPP±30380; FRL±4934±6] of that information as ‘‘Confidential [(Bromo-4’-[biphenyl-1-1’]-yl-4) 3- Business Information’’ (CBI). tetrahydro-1,2,3,4-naphthyl-1] 3- LipaTech, Inc.; Applications to Information so marked will not be Register Pesticide Products hydroxy-4, 2H-1 benzothiopyran-one-2 disclosed except in accordance with at 97.6 percent. Proposed classification/ procedures set forth in 40 CFR part 2. AGENCY: Environmental Protection Use: None. For formulating other Agency (EPA). A copy of the comment that does not registered products. (PM 14) contain CBI must be submitted for ACTION: Notice. 2. File Symbol: 7173–ENL. Applicant: inclusion in the public record. LipaTech, Inc. Product name: SUMMARY: This notice announces receipt Information not marked confidential Difethialone Pellets. Rodenticide. Active of applications to register pesticide may be disclosed publicly by EPA ingredient: [(Bromo-4’-[biphenyl-1-1’]- products containing an active ingredient without prior notice. All written yl-4) 3-tetrahydro-1,2,3,4-naphthyl-1] 3- not included in any previously comments will be available for public hydroxy-4, 2H-1 benzothiopyran-one-2 registered products pursuant to the inspection in Rm. 1132 at the address at 0.0025 percent. Proposed provisions of section 3(c)(4) of the given above, from 8 a.m. to 4 p.m., classification/Use: None. For indoor and Federal Insecticide, Fungicide, and Monday through Friday, excluding outdoor (around buildings in urban Rodenticide Act (FIFRA), as amended. holidays. areas) rodent control of house mice, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9839 Norway rats, and warfarin resistant oxo-4 pyridazinecarboxylic acid, pyridazinecarboxylic acid, potassium Norway rats. (PM 14) potassium salt] in or on certain raw salt] in or on the raw agricultural 3. File Symbol: 7173–ENA. Applicant: agricultural commodities. commodity wheat forage from 15 parts LipaTech, Inc. Product name: DATES: These temporary tolerances per million (ppm) to 10 ppm. These Difethialone Pellets Place Packs. expire March 4, 1997. temporary tolerances will permit the Rodenticide. Active ingredient: FOR FURTHER INFORMATION CONTACT: By marketing of the above raw agricultural [(Bromo-4’-[biphenyl-1-1’]-yl-4) 3- mail: Robert J. Taylor, Product Manager commodities when treated in tetrahydro-1,2,3,4-naphthyl-1] 3- (PM) 25, Registration Division (7505C) accordance with the provisions of the hydroxy-4, 2H-1 benzothiopyran-one-2 Office of Pesticide Programs, experimental use permit 524-EUP-80, at 0.0025 percent. Proposed Environmental Protection Agency, 401 which is being issued under the Federal classification/Use: None. For indoor and M St., SW., Washington, DC 20460. Insecticide, Fungicide, and Rodenticide outdoor (around buildings in urban Office location and telephone number: Act (FIFRA), as amended (Pub. L. 95– areas) rodent control of house mice, Room 241, CM#2, 1921 Jefferson Davis 396, 92 Stat. 819; 7 U.S.C. 136). The scientific data reported and other Norway rats, and warfarin resistant Highway, Arlington, VA, (703)–305– relevant material were evaluated, and it Norway rats. (PM 14) 6800. Notice of approval or denial of an was determined that the establishment SUPPLEMENTARY INFORMATION: EPA gives application to register a pesticide of the temporary tolerances will protect notice that it has established and product will be announced in the the public health. Therefore, the amended temporary tolerances relating Federal Register. The procedure for temporary tolerances have been to the initial filing and amendment of requesting data will be given in the established on the condition that the tolerances for residues of the Federal Register if an application is pesticides be used in accordance with hybridizing agent Genesis (Mon approved. the experimental use permit and with Comments received within the 21250), [2-(4-chlorophenyl)-3-ethyl-2,5- the following provisions: specified time period will be considered dihydro-5-oxo-4 pyridazinecarboxylic 1. The total amount of the active before a final decision is made; acid, potassium salt] in or on certain ingredient to be used must not exceed comments received after the time raw agricultural commodities as the quantity authorized by the specified will be considered only to the follows: experimental use permit. 2. Monsanto Co. must immediately extent possible without delaying Initial Filing processing of the application. notify the EPA of any findings from the Written comments filed pursuant to 1. PP 3G4198. Monsanto Company, experimental use permit that have a this notice, will be available in the The Agricultural Group, Suite 1100, 700 bearing on safety. The company must Public Response and Program Resources 14th St., NW., Washington, DC 20005, also keep records of production, Branch, Field Operation Division office has requested in pesticide petition (PP) distribution, and performance and on at the address provided from 8 a.m. to 3G4198, the establishment of temporary request make the records available to rotational crop tolerances for residues of any authorized officer or employee of 4 p.m., Monday through Friday, except legal holidays. It is suggested that the wheat hybridizing agent Genesis the EPA or the Food and Drug persons interested in reviewing the (Mon 21250), [2-(4-chlorophenyl)-3- Administration. application file, telephone the FOD ethyl-2,5-dihydro-5-oxo-4 These tolerances expire March 4, office (703–305–5805), to ensure that pyridazinecarboxylic acid, potassium 1997. Residues not in excess of these the file is available on the date of salt] in or on the raw agricultural amounts remaining in or on the raw intended visit. commodities sorghum grain at 5 parts agricultural commodities after this per million (ppm), sorghum fodder at 2 expiration date will not be considered Authority: 7 U.S.C. 136. ppm, and sorghum forage at 2 ppm. actionable if the pesticide is legally applied during the term of, and in List of Subjects Amendment accordance with, the provisions of the Environmental protection, Pesticides 2. PP 3G4198. EPA gives notice that experimental use permit and temporary and pests, Product registration. the Agency has received an amendment tolerances. These temporary tolerances Dated: February 7, 1995. for pesticide petition (PP) 3G4198, may be revoked if the experimental use which previously published in the permit is revoked or if any experience Stephen L. Johnson, Federal Register of April 15, 1994 (59 with or scientific data on these Director, Registration Division, Office of FR 18118), stating that temporary pesticides indicate that such revocation Pesticide Programs. tolerances had been established for is necessary to protect the public health. [FR Doc. 95–4051 Filed 2–21–95; 8:45 am] residues of the hybridizing agent The Office of Management and Budget BILLING CODE 6560±50±F Genesis (Mon 21250) and its has exempted this notice from the metabolites [2-(4-chlorophenyl)-3- ethyl- requirement of section 3 of Executive 2,5-dihydro-5-oxo-4 Order 12866. [PP 3G4198/T669; FRL 4935±9] pyridazinecarboxylic acid, potassium Pursuant to the requirements of the Monsanto Co.; Initial Filings and salt] in or on the raw agricultural Regulatory Flexibility Act (Pub. L. 96– Amendment of Temporary Tolerances commodities wheat grain at 250 parts 354, 94 Stat. 1164, 5 U.S.C. 601–612), per million (ppm), wheat straw at 50 the Administrator has determined that AGENCY: Environmental Protection ppm, and wheat forage at 15 ppm. regulations establishing new tolerances Agency (EPA). Monsanto Company, The Agricultural or raising tolerance levels or ACTION: Notice. Group, Suite 1100, 700 14th St., N.W., establishing exemptions from tolerance Washington, DC 20005, has requested requirements do not have a significant SUMMARY: EPA has established and has an amendment to (PP) 3G4198 to economic impact on a substantial amended temporary tolerances for establish a temporary tolerance for number of small entities. A certification residues of the hybridizing agent residues the hybridizing agent Genesis statement to this effect was published in Genesis (Mon 21250) [2-(4- (Mon 21250), [2-(4-chlorophenyl)-3- the Federal Register of May 4, 1981 (46 chlorophenyl)-3-ethyl-2,5-dihydro-5- ethyl-2,5-dihydro-5-oxo-4 FR 24950). 9840 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices Authority: 21 U.S.C. 346a(j). Federal Maritime Commission, President; Liliana Hayes, Vice Washington, D.C. 20573, within 10 days President. List of Subjects after the date of the Federal Register in Dated: February 15, 1995. Environmental protection, which this notice appears. The By the Federal Maritime Commission. requirements for comments are found in Administative practice and procedure, Joseph C. Polking, section 572.603 of Title 46 of the Code Agricultural commodities, Pesticides Secretary. and pests, Reporting and recordkeeping of Federal Regulations. Interested [FR Doc. 95–4219 Filed 2–21–95; 8:45 am] requirements. persons should consult this section before communicating with the BILLING CODE 6730±01±M Dated: February 14, 1995. Commission regarding a pending Stephen L. Johnson, agreement. Director, Registration Division, Office of Agreement No.: 232–011489 FEDERAL RESERVE SYSTEM Pesticide Programs. Title: Nacional/Ivaran Space Charter and Sailing Agreement Glenn Fred Bergau; Change in Bank [FR Doc. 95–4313 Filed 2–21–95; 8:45 am] Control Notice BILLING CODE 6560±50±F Parties: Companhia Maritima Nacional Acquisition of Shares of Banks or A/S Ivarans Rederi Bank Holding Companies Synopsis: The proposed Agreement FEDERAL EMERGENCY authorizes the parties to charter space The notificant listed below has MANAGEMENT AGENCY from each other and to rationalize applied under the Change in Bank [FEMA±1044±DR] sailings in the trade between U.S. Control Act (12 U.S.C. 1817(j)) and § Atlantic and Gulf Coast ports and 225.41 of the Board’s Regulation Y (12 California; Amendment to Notice of a points and ports and points on the CFR 225.41) to acquire a bank or bank Major Disaster Declaration east coast of South America. holding company. The factors that are considered in acting on notices are set AGENCY: Federal Emergency Dated: February 16, 1995. Management Agency (FEMA). By Order of the Federal Maritime forth in paragraph 7 of the Act (12 Commission. U.S.C. 1817(j)(7)). ACTION: Notice. Joseph C. Polking, The notice is available for immediate SUMMARY: This notice amends the notice Secretary. inspection at the Federal Reserve Bank of a major disaster for the State of [FR Doc. 95–4315 Filed 2–21–95; 8:45 am] indicated. Once the notice has been accepted for processing, it will also be California (FEMA–1044–DR), dated BILLING CODE 6730±01±M January 10, 1995, and related available for inspection at the offices of determinations. the Board of Governors. Interested persons may express their views in EFFECTIVE DATE: February 13, 1995. Ocean Freight Forwarder License; Applicants writing to the Reserve Bank indicated FOR FURTHER INFORMATION CONTACT: for the notice or to the offices of the Pauline C. Campbell, Response and Notice is hereby given that the Board of Governors. Comments must be Recovery Directorate, Federal following applicants have filed with the received not later than March 7, 1995. Emergency Management Agency, Federal Maritime Commission A. Federal Reserve Bank of San Washington, DC 20472, (202) 646–3606. applications for licenses as ocean freight Francisco (Kenneth R. Binning, SUPPLEMENTARY INFORMATION: Notice is forwarders pursuant to section 19 of the Director, Bank Holding Company) 101 hereby given that the incident period for Shipping Act of 1984 (46 U.S.C. app. Market Street, San Francisco, California this disaster is closed effective February 1718 and 46 CFR 510). 94105: 10, 1995. Persons knowing of any reason why 1. Glenn Fred Bergau, Usk, (Catalog of Federal Domestic Assistance No. any of the following applicants should Washington; to acquire an additional 83.516, Disaster Assistance.) not receive a license are requested to 0.996 percent, for a total of 10.39 Richard W. Krimm, contact the Office of Freight Forwarders, percent, of the voting shares of Pend Federal Maritime Commission, Associate Director, Response and Recovery Oreille Bancorp, Newport, Washington, Directorate. Washington, D.C. 20573. and thereby indirectly acquire Pend [FR Doc. 95–4316 Filed 2–21–95; 8:45 am] Marmara, Inc., c/o Cichanowicz, Callan Oreille Bank, Newport, Washington. BILLING CODE 6718±02±M & Keane, 139 So. Street, Suite 103, Board of Governors of the Federal Reserve New Providence, NJ 07974, Officers: System, February 15, 1995. Cahit Paksoy, President; Frank J. William W. Wiles, Fassbender, Vice President FEDERAL MARITIME COMMISSION Secretary of the Board. American President Business Logistics [FR Doc. 95–4223 Filed 2–21–95; 8:45 am] Notice of Agreement(s) Filed Services, Ltd., 1111 Broadway, Oakland, CA 94607, Officers: Joji BILLING CODE 6210±01±F The Federal Maritime Commission Hayashi, Director; Rodney W. Miller, hereby gives notice of the filing of the Vice President First Community Bancshares, Inc.; following agreement(s) pursuant to Alfons Frerika U.S.A., Inc., dba Alfons Notice of Application to Engage de section 5 of the Shipping Act of 1984. Freriks Freight Forwarding, 4674 # novo in Permissible Nonbanking Interested parties may inspect and Clark Howell Highway, 4, Atlanta, Activities obtain a copy of each agreement at the GA 30349, Officers: Rob Smits, Washington, D.C. Office of the Federal President; Victor Boutier, Vice The company listed in this notice has Maritime Commission, 800 North President filed an application under § 225.23(a)(1) Capitol Street, N.W., 9th Floor. World Cargo Corporation, 4408 NW of the Board’s Regulation Y (12 CFR Interested parties may submit comments 74th Avenue, Miami, FL 33166, 225.23(a)(1)) for the Board’s approval on each agreement to the Secretary, Officers: Diana Obregon-Bader, under section 4(c)(8) of the Bank Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9841 Holding Company Act (12 U.S.C. be limited to employees, shareholders, B. Federal Reserve Bank of Chicago 1843(c)(8)) and § 225.21(a) of Regulation directors, and their family members, (James A. Bluemle, Vice President) 230 Y (12 CFR 225.21(a)) to commence or to affiliated companies and trusts. South LaSalle Street, Chicago, Illinois engage de novo, either directly or Board of Governors of the Federal Reserve 60690: through a subsidiary, in a nonbanking System, February 15, 1995. 1. Capitol Bancorp, Ltd., Lansing, activity that is listed in § 225.25 of William W. Wiles, Michigan; to acquire 100 percent of the Regulation Y as closely related to Secretary of the Board. voting shares of Grand Haven Bank, banking and permissible for bank [FR Doc. 95–4224 Filed 2–21–95; 8:45 am] Grand Haven, Michigan, a de novo bank. holding companies. Unless otherwise BILLING CODE 6210±01±F C. Federal Reserve Bank of Kansas noted, such activities will be conducted City (John E. Yorke, Senior Vice throughout the United States. President) 925 Grand Avenue, Kansas The application is available for First Mariner Bancorp, et al.; City, Missouri 64198: immediate inspection at the Federal Formations of; Acquisitions by; and 1. First Place Financial Corporation, Reserve Bank indicated. Once the Mergers of Bank Holding Companies Farmington, New Mexico; to acquire application has been accepted for 100 percent of the voting shares of processing, it will also be available for The companies listed in this notice Western Bank, Gallup, New Mexico. have applied for the Board’s approval inspection at the offices of the Board of Board of Governors of the Federal Reserve Governors. Interested persons may under section 3 of the Bank Holding Company Act (12 U.S.C. 1842) and § System, February 15, 1995. express their views in writing on the William W. Wiles, question whether consummation of the 225.14 of the Board’s Regulation Y (12 Secretary of the Board. proposal can ‘‘reasonably be expected to CFR 225.14) to become a bank holding produce benefits to the public, such as company or to acquire a bank or bank [FR Doc. 95–4225 Filed 2–21–95; 8:45 am] greater convenience, increased holding company. The factors that are BILLING CODE 6210±01±F competition, or gains in efficiency, that considered in acting on the applications outweigh possible adverse effects, such are set forth in section 3(c) of the Act as undue concentration of resources, (12 U.S.C. 1842(c)). FEDERAL TRADE COMMISSION decreased or unfair competition, Each application is available for immediate inspection at the Federal conflicts of interests, or unsound Granting of Request for Early banking practices.’’ Any request for a Reserve Bank indicated. Once the application has been accepted for Termination of the Waiting Period hearing on this question must be Under the Premerger Notification accompanied by a statement of the processing, it will also be available for inspection at the offices of the Board of Rules reasons a written presentation would Governors. Interested persons may not suffice in lieu of a hearing, Section 7A of the Clayton Act, 15 express their views in writing to the identifying specifically any questions of U.S.C. 18a, as added by Title II of the Reserve Bank or to the offices of the fact that are in dispute, summarizing the Hart-Scott-Rodino Antitrust Board of Governors. Any comment on evidence that would be presented at a Improvements Act of 1976, requires an application that requests a hearing hearing, and indicating how the party persons contemplating certain mergers must include a statement of why a commenting would be aggrieved by written presentation would not suffice or acquisitions to give the Federal Trade approval of the proposal. in lieu of a hearing, identifying Commission and the Assistant Attorney Comments regarding the application specifically any questions of fact that General advance notice and to wait must be received at the Reserve Bank are in dispute and summarizing the designated periods before indicated or the offices of the Board of evidence that would be presented at a consummation of such plans. Section Governors not later than March 7, 1995. hearing. 7A(b)(2) of the Act permits the agencies, A. Federal Reserve Bank of Dallas Unless otherwise noted, comments in individual cases, to terminate this (Genie D. Short, Vice President) 2200 regarding each of these applications waiting period prior to its expiration North Pearl Street, Dallas, Texas 75201- must be received not later than March and requires that notice of this action be 2272: 17, 1995. published in the Federal Register. 1. First Community Bancshares, Inc., A. Federal Reserve Bank of The following transactions were Houston, Texas; to engage de novo in Richmond (Lloyd W. Bostian, Jr., Senior granted early termination of the waiting providing economic information and Vice President) 701 East Byrd Street, period provided by law and the advice, statistical forecasting services, Richmond, Virginia 23261: premerger notification rules. The grants and industry studies, conducting 1. First Mariner Bancorp (formerly were made by the Federal Trade financial feasibility studies, providing MarylandsBank Corp.), Towson, Commission and the Assistant Attorney advice regarding swaps, caps, and Maryland; to become a bank holding General for the Antitrust Division of the similar transactions related to interest company by acquiring 100 percent of Department of Justice. Neither agency rates or prices and economic indices, the voting shares of First Mariner Bank intends to take any action with respect pursuant to § 225.25(b)(4) of the Board’s (formerly MarylandsBank, FSB), to these proposed acquisitions during Regulation Y. The geographic scope will Towson, Maryland. the applicable waiting period. TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 100394 AND 101494 Date termi- Name of acquiring person, name of acquired person, name of acquired entity PMN No. nated General Electric Company, Thomas R. Roos, Island Development Corporation Inc ...... 94±2247 10/03/94 Sterling Software, Inc., KnowledgeWare, Inc., KnowledgeWare, Inc ...... 94±2143 10/04/94 ONEOK Inc., Nelson Bunker Hunt Trust Estate, Creston Partners, L.P ...... 94±2195 10/04/94 Emerson Electric Co., Astec (BSR) PLC, Astec (BSR) PLC ...... 94±2140 10/05/94 TransCanada PipeLines Limited, Northridge Canada Inc., Northridge U.S. Inc ...... 94±2160 10/05/94 9842 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 100394 AND 101494ÐContinued Date termi- Name of acquiring person, name of acquired person, name of acquired entity PMN No. nated Corning Incorporated, J. Richard Fennell, Bioran Medical Laboratory ...... 94±2174 10/05/94 Harvest States Cooperatives, H.J. Heinz Company, Portion Pac, Inc ...... 94±2204 10/05/94 Neil M. Chur, Beverly Enterprises, Inc., Beverly Enterprises-Texas, Inc./Beverly California Corp ...... 94±2209 10/05/94 Klaus J. Jacobs, Brock Candy Company, Brock Candy Company ...... 94±2220 10/05/94 Amoco Corporation, John M. Fox, MarkWest Energy Partners, Ltd ...... 94±2226 10/05/94 Beverly Enterprises, Inc., Eckerd Corporation, Insta-Care Holdings, Inc ...... 94±2229 10/05/94 Arrow Electronics, Inc, Anthem Electronics, Inc., Anthem Electronics, Inc ...... 94±2235 10/05/94 Philip F. Anschutz, Trammell Crow Equity Partners, The Tabor Group Ltd./Tabor Acquisition #1, Inc ...... 94±2244 10/05/94 Dawson Holdings, PLC, The Faxon Company, Inc., The Faxon Company, Inc ...... 94±2246 10/07/94 Mobil Corporation, Mr. Irwin B. Singer, The Atlas Oil Company ...... 94±2159 10/12/94 The Clayton & Dubilier Private Equity Fund IV L.P., The Travelers Inc., American Capital Management & Research, Inc ...... 94±2182 10/12/94 Liberty Brokerage Investment Corp., Liberty Brokerage Investment Corp., Patriot Securities, L.P ...... 94±2196 10/12/94 ANTEC Corporation, Keptel, Inc., Keptel, Inc ...... 94±2214 10/12/94 Airgas, Inc., Post Welding Supply Company, Post Welding Supply Company ...... 94±2239 10/12/94 Jerry Zucker, W.R. Grace & Co., W.R. Grace & Co.-Conn...... 94±2240 10/12/94 David J. McGrath, Jr., c/o TAD Resources Int'l., Inc., Thomas L. Kirk, Kirk-Mayer, Inc. (KMI) ...... 94±2248 10/12/94 Charles Schusterman, Oryx Energy Company, Sun Operating Limited Partnership ...... 94±2249 10/12/94 David H. Jacobs Trust (The), Jacobs Properties, Inc., Jacobs Properties, Inc ...... 94±2253 10/12/94 Jacobs Realty Limited Partnership, Jacobs Properties, Inc., Jacobs Properties, Inc ...... 94±2254 10/12/94 Jacobs Realty Limited Partnership, Richard E. Jacobs, Mall A Limited Partnership ...... 94±2255 10/12/94 CGW Southeast Partners I, L.P., The BOC Group plc, Ohmeda, Inc ...... 94±2258 10/12/94 Lincolnshire Equity Fund, L.P., TRW Inc., TRW Inc ...... 94±2259 10/12/94 Clear Channel Communications, Inc., Mario F. Iacobelli, Heritage Broadcasting Company of New York ...... 94±2267 10/12/94 Creative Technology Ltd., Digicom Sytems, Inc., Digicom Systems, Inc ...... 94±2270 10/12/94 The NWNL Companies, Inc., USLICO Corporation, USLICO Corporation ...... 94±2281 10/12/94 AmeriQuest Technologies, Inc., Jonathan O. Lee, Ross White Enterprises, Inc ...... 94±2282 10/12/94 Ford Motor Company, Amoco Corporation, Amoco Oil Company ...... 94±2284 10/12/94 Citicorp, Ground Round Restaurants, Inc., Ground Round Restaurants, Inc ...... 94±2285 10/12/94 Foundation Health Corporation, Thomas-Davis Medical Centers, P.C., Thomas-Davis Medical Centers, P.C ...... 94±2184 10/13/94 K±III Communications Corporation, Irvin J. Borowsky, North American Publishing Company ...... 94±2286 10/13/94 The Methodist Hospital, St. Luke's Episcopal Hospital, St. Luke's Episcopal Hospital ...... 94±2289 10/13/94 St. Luke's Episcopal Hospital, The Methodist Hospital, The Methodist Hospital ...... 94±2290 10/13/94 IBP, Inc., Lakeside Farm Industries Ltd., Lakeside Farm Industries Ltd ...... 94±2210 10/14/94 Loral Corporation, K & F Industries, Inc., K & F Industries, Inc ...... 94±2236 10/14/94 General Electric Company, NEWCO, NEWCO ...... 94±2269 10/14/94 American Premier Underwriters, Inc., Principal Mutual Life Insurance Company, Principal Casualty Insurance Com- pany ...... 94±2273 10/14/94 Japan Nuclear Fuel Company, Ltd., NEWCO, NEWCO ...... 94±2279 10/14/94 Central Life Assurance Company, American Mutual Life Insurance Company, American Mutual Life Insurance Com- pany ...... 94±2288 10/14/94 FOR FURTHER INFORMATION CONTACT: unfair acts and practices and unfair D.C. 20580. (202) 326–3159 or 326– Sandra M. Peay or Renee A. Horton, methods of competition, this consent 2736. Contact Representatives, Federal Trade agreement, accepted subject to final SUPPLEMENTARY INFORMATION: Commission, Premerger Notification Commission approval, would require, Pursuant Office, Bureau of Competition, Room among other things, a Georgia-based to Section 6(f) of the Federal Trade 303, Washington, DC 20580, (202) 326– corporation to follow reasonable Commission Act, 38 Stat. 721, 15 U.S.C. 3100. procedures to assure maximum possible 46 and Section 2.34 of the Commission’s accuracy when preparing consumer Rules of Practice (16 CFR 2.34), notice By Direction of the Commission. is hereby given that the following Donald S. Clark, reports as required by the Fair Credit Reporting Act and to also maintain consent agreement containing a consent Secretary. reasonable procedures to limit the order to cease and desist, having been [FR Doc. 95–4278 Filed 2–21–95; 8:45 am] furnishing of consumer reports to the filed with and accepted, subject to final BILLING CODE 6750±01±M purposes listed under Section 604 of the approval, by the Commission, has been Fair Credit Reporting Act. placed on the public record for a period [File No. 902 3149] DATES: Comments must be received on of sixty (60) days. Public comment is or before April 24, 1995. invited. Such comments or views will Equifax Credit Information Services, be considered by the Commission and Inc.; Proposed Consent Agreement ADDRESSES: Comments should be will be available for inspection and With Analysis To Aid Public Comment directed to: FTC/Office of the Secretary, copying at its principal office in Room 159, 6th Street and Pennsylvania AGENCY: Federal Trade Commission. accordance with Section 4.9(b)(6)(ii) of Avenue NW., Washington, D.C. 20580. the Commission’s Rules of Practice (16 ACTION: Proposed consent agreement. FOR FURTHER INFORMATION CONTACT: CFR 4.9(b)(6)(ii)). SUMMARY: In settlement of alleged Christopher W. Keller or Donald violations of federal law prohibiting d’Entremont, FTC/S–4429, Washington, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9843 Agreement Containing Consent Order withdraw its acceptance of this regulations having the effect of statutory To Cease and Desist agreement and so notify Equifax, in provisions. The terms ‘‘Person,’’ ‘‘Consumer,’’ The Federal Trade Commission which event it will take such action as ‘‘Consumer Report,’’ ‘‘Consumer having initiated an investigation of it may consider appropriate, or issue Reporting Agency,’’ ‘‘File,’’ and certain acts and practices of Equifax and serve its complaint (in such form as ‘‘Employment Purposes’’ are defined as Credit Information Services, Inc., a the circumstances may require) and set forth in Sections 603 (b), (c), (d), (f), corporation, hereinafter sometimes decision, in disposition of the proceeding. (g), and (h), respectively, of the FCRA, referred to as Equifax, and it now 8. This agreement contemplates that, 15 U.S.C. §§ 1681a(b), 1681a(c), appearing that Equifax is willing to if it is accepted by the Commission, and 1681a(d), 1681a(f), 1681a(g), and enter into an agreement containing an if such acceptance is not subsequently 1681a(h). order to cease and desist from the use withdrawn by the Commission pursuant ‘‘Permissible Purpose’’ means any of of the acts and practices being to the provisions of § 2.34 of the the purposes listed in Section 604 of the investigated, Commission’s Rules, the Commission FCRA, 15 U.S.C. § 1681b, for which a It is hereby agreed by and between may, without further notice to Equifax, Consumer Reporting Agency may Equifax Credit Information Services, (1) issue its complaint corresponding in lawfully furnish a Consumer Report. Inc., by its duly authorized officers, and form and substance with the draft of ‘‘Subscriber’’ means any Person who, its attorney, and counsel for the Federal complaint and its decision containing pursuant to an agreement with Equifax, Trade Commission that: the following order to cease and desist furnishes Credit Information to Equifax 1. Equifax Credit Information in disposition of the proceeding and (2) or who requests or obtains a Consumer Services, Inc., is a corporation make information public with respect Report from Equifax, excluding organized, existing, and doing business thereto. When so entered, the order to Consumers, public record sources, and under and by virtue of the laws of the cease and desist shall have the same independent contractors who provide State of Georgia, with its office and force and effect and may be altered, public record information. principal place of business located at modified or set aside in the same ‘‘Prescreening’’ means the process 1600 Peachtree Street, N.W., Atlanta, manner and within the same time whereby Equifax, utilizing Credit Georgia 30309. provided by statute for other orders. The Information, compiles or edits for a 2. Equifax is a consumer reporting order shall become final upon service. Subscriber a list of Consumers who agency as defined in Section 603(f) of Delivery by the U.S. Postal Service of meet specific criteria and provides this the Fair Credit Reporting Act. the complaint and decision containing list to the Subscriber or a third party 3. The Federal Trade Commission has the agreed-to order to Equifax’s address (such as a mailing service) on behalf of jurisdiction of the subject matter of this as stated in this agreement shall the Subscriber for use in soliciting those proceeding and of Equifax, and the constitute service. Equifax waives any Consumers for an offer of credit. proceeding is in the public interest. right it may have to any other manner ‘‘Credit Information’’ means 4. Equifax admits all the jurisdictional of service. The complaint may be used information described by Section 603(d) facts set forth in the draft complaint. in construing the terms of the order, and of the FCRA, which Equifax maintains 5. Equifax waives: no agreement, understanding, with respect to any Consumer, that (a) Any further procedural steps; representation, or interpretation not Equifax obtains from Subscribers, public (b) The requirement that the contained in the order or the agreement records or any other sources and from Commission’s decision contain a may be used to vary or contradict the which Equifax creates Consumer statement of findings of fact and terms of the order. Reports. conclusions of law; 9. Equifax has read the proposed ‘‘Mixed File’’ means a Consumer (c) All rights to seek judicial review complaint and order contemplated Report in which some or all of the or otherwise to challenge or contest the hereby. It understands that once the information pertains to Consumers other validity of the order entered into order has been issued, it will be than the Consumer who is the subject of pursuant to this agreement; and required to file one or more compliance that Consumer Report. (d) Any claim under the Equal Access reports showing that it has fully ‘‘Consumer DTEC Report’’ means a to Justice Act, 5 U.S.C. § 50 et seq. complied with the order. Equifax further type of Consumer Report, by whatever 6. This agreement and the order understands that it may be liable for name, containing only Consumer contemplated hereby is for settlement civil penalties in the amount provided identifying information such as name, purposes only and neither its execution by law for each violation of the order telephone number, mother’s maiden by the parties hereto, acceptance by the after it becomes final. name, address, zip code, year of birth, Commission nor entry of the agreed-to age, any generational designation, Social order shall constitute any admission by Order Security number or substantially similar Equifax that any law has been violated. For the purpose of this order, the identifiers, or any combination thereof, Equifax specifically denies that it has following definitions apply: together with information showing violated the Fair Credit Reporting Act in ‘‘Commission’’ means the Federal employment or employment status. any respect whatsoever. Trade Commission. ‘‘Mixed-use Subscriber of Consumer 7. This agreement shall not become ‘‘Equifax’’ means Equifax Credit DTEC Reports’’ means the following part of the public record of the Information Services, Inc., its successors Subscribers who obtain Consumer DTEC proceeding unless and until it is and assigns, and its officers, agents, and Reports: attorneys, law firms, detective accepted by the Commission. If this employees acting in such capacity on its agencies, private investigators, and agreement is accepted by the behalf, directly or through any protective services firms. Commission, it, together with the draft corporation, subsidiary, division or ‘‘Joint User’’ means a user of a complaint contemplated thereby, will be other device. Consumer Report jointly involved with placed on the public record for a period ‘‘FCRA’’ means the Fair Credit a Subscriber in a decision for which of sixty (60) days and information in Reporting Act, 15 U.S.C. § 1681 et. seq., there is a Permissible Purpose to obtain respect thereto publicly released. The as the same from time to time may be the Consumer Report and for which the Commission thereafter may either amended or modified by statute or by Consumer Report was initially obtained. 9844 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices ‘‘Approval Date’’ means the date on Reports will be used for no other to the Consumer; provided however which the Associate Director for purpose(s) than the purpose(s) certified; that, Enforcement of the Bureau of Consumer c. With respect to each entity that (A) for public record information Protection of the Commission notifies becomes a Consumer DTEC Report only, if such public record information respondent that the methodologies Subscriber on or after the effective date does not contain at least two of the required by Paragraph II.1. of this Order of this order, visitation to its place of above identifiers, Equifax may identify have received final approval. business to confirm the certifications such public record information by the made pursuant to Paragraphs I.2.a. and Consumer’s full name (including middle I I.2.b. of this order; initial and suffix, if available) together It is ordered that Equifax, in d. Refusing to furnish Consumer with the Consumer’s full address connection with the collection, DTEC Reports to Subscribers who fail or (including apartment number, if any); preparation, assembly, maintenance and refuse to provide the certifications and furnishing of Consumer Reports and required in Paragraphs I.2.a. and I.2.b. of (B) in the future Equifax may Files, forthwith cease and desist from this order; alternatively identify Credit Information failing to: e. Requiring each Mixed-use (including public record information) by 1. Maintain reasonable procedures Subscription of Consumer DTEC a discrete identifier that is (i) unique to designed to limit the furnishing of Reports to provide a separate the Consumer, (ii) not utilized by Consumer Reports to Subscribers that certification as to the Permissible Equifax at the time of execution of this have Permissible Purposes to receive Purpose for each Consumer DTEC agreement, and (iii) not susceptible of them under Section 604 of the FCRA, as Report it requests before the Consumer data entry error. required by Section 607(a) of the FCRA. DTEC Report is furnished to it; and c. To assure that information in a Such procedures shall include but are f. Terminating access to Consumer Consumer’s File that has been not limited to: DTEC Reports by any Subscriber who determined by Equifax to be inaccurate a. Continuing to require in Equifax’s Equifax knows or has reason to know is not subsequently included in a contracts that those who obtain has obtained, after the effective date of Consumer Report furnished on that Consumer Reports from Equifax in the this order, a Consumer DTEC Report for Consumer; form of lists developed through any purpose other than a Permissible d. To prevent furnishing any Prescreening make a firm offer of credit Purpose, unless that Subscriber Consumer Report containing to each Consumer on the lists and take obtained such Report through information that Equifax knows or has reasonable steps to enforce those inadvertent error—i.e., a mechanical, reason to believe is incorrect, including contracts; and electronic, or clerical error that the information that the Consumer or the b. Reasonable procedures to avoid (i) Subscriber demonstrates was source or repository of the information including in a Consumer Report unintentional and occurred has stated is not accurate (including that information identifiable as pertaining to notwithstanding the maintenance of it does not pertain to the Consumer) a Consumer other than the Consumer for procedures reasonably designed to unless Equifax has reason to believe that whom a Permissible Purpose exists as to avoid such errors. the statement is frivolous or irrelevant such report; and (ii) displaying Files 3. Maintain reasonable procedures as or, upon investigation, not valid; identifiable as pertaining to more than required by Section 607(a) of the FCRA e. To avoid the occurrence of Mixed one Consumer in response to a to avoid including in any Equifax Files, including but not limited to Subscriber request on one Consumer. Consumer Report, other than a mixing of Files as the result of entry of 2. Maintain reasonable procedures Consumer Report described in Section data by Subscribers when seeking designed to limit the furnishing of 605(b) of the FCRA, any information, Consumer Reports; and Consumer DTEC Reports to Subscribers notice or other statement that indicates f. To avoid reporting in a Consumer under the circumstances described by directly or indirectly the existence of Report public record information that Section 604 of the FCRA, as required by items of adverse information, the pertains to Consumers other than the Section 607(a) of the FCRA. Such reporting of which is prohibited by Consumer who is the subject of the procedures shall include, with respect Section 605(a) of the FCRA. Consumer Report, or which does not to prospective Subscribers of Consumer 4. Follow reasonable procedures to accurately reflect information DTEC Reports, before furnishing any assure maximum possible accuracy of concerning such subject as it appears on Consumer DTEC Report to such the information concerning the public records, including but not Subscribers, and with respect to current Consumer about whom the Consumer limited to following reasonable Consumer DTEC Subscribers, within six Report relates, as required by Section procedures to sample, verify or months after the effective date of this 607(b) of the FCRA. Such procedures otherwise corroborate public record order: shall include but are not limited to information furnished by Equifax. a. Adoption of procedures requiring reasonable precedures: 5. Maintain reasonable procedures so all Consumer DTEC Subscribers to a. To detect, before Credit Information that information disputed by a provide written certification that is available for reporting by Equifax, Consumer that is deleted or corrected Subscribers will not share or provide logical errors in such Credit upon reinvestigation by Equifax, does Consumer DTEC Reports to anyone else, Information. not subsequently appear in uncorrected other than the subject of the report or to b. To prevent reporting to Subscribers form in Consumer Reports pertaining to a Joint User; that Credit Information pertains to a that Consumer; provided, however, that b. Continuation of procedures particular Consumer unless Equifax has if after Equifax has deleted such requiring all Consumer DTEC identified such information by at least information from the File, Equifax Subscribers to provide written two of the following identifiers: (i) the reverifies such information, Equifax identification of themselves; written Consumer’s name, (ii) the Consumer’s may reinsert such information in the certification of the Permissible Social Security number, (iii) the File and report such information in Purpose(s) for which the Consumer Consumer’s date of birth, (iv) the subsequent Consumer Reports DTEC Reports are sought; and written Consumer’s account number with a concerning that Consumer if, and only certification that the Consumer DTEC Subscriber or a similar identifier unique if, Equifax advises the Consumer in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9845 writing that the information has been 8. Reinvestigate Consumer disputes in methodologies approved by the ADE as reinserted. accordance with Section 611 of the specified in Paragraph II.1. above, and 6. Make disclosure of the nature and FCRA. In connection therewith, Equifax to the extent not otherwise provided, substance of all information (except shall impose no requirements beyond shall include with such reports the medical information) in its Files on the those in Section 611 of the FCRA, results of a statistically significant Consumer at the time of the request for including but not limited to analysis to determine the incidence of disclosure, as required by Sections 609 requirements that the Consumer: Mixed Files. and 610 of the FCRA, to any Consumer a. Pay a fee for updating and who has requested disclosure, has recording the current status of disputed III provided proper identification as information; It is further ordered that Equifax shall, required under Section 610 of the b. Provide copies of identifying annually for five (5) years following the FCRA, and has paid or accepted any documentation, including but not effective date of this order, submit the charges that may be imposed under limited to driver’s license, Social following information to the ADE Section 612 of the FCRA. Security card, and utility bills; and within sixty (60) days of the anniversary 7. Reinvestigate and record the c. Provide a written authorization of the effective date of this order and current status of items of information before reinvestigating information the with respect to the preceding twelve the completeness or accuracy of which Consumer has disputed. (12) month period: is disputed by a Consumer, when the 9. Continue, upon completion of the 1. The total number of File Consumer directly conveys the dispute reinvestigation of information disputed disclosures to Consumers by Equifax; to Equifax, and Equifax does not have by a Consumer, to write the Consumer 2. The number of occasions on which reason to believe the dispute is frivolous and provide the following: Consumers have informed Equifax that or irrelevant. Such investigation shall a. The results of the reinvestigation they dispute information in files include but not limited to: conducted by Equifax; and maintained by Equifax; a. Completing any reinvestigation, i.e., b. A statement advising the Consumer 3. The number of such disputes where verifiying, deleting, or modifying all of the Consumer’s right to request that the disputed information was verified as disputed items in the Consumer’s File, Equifax furnish notification that accurate; with thirty (30) days of receipt of the information has been deleted, or furnish 4. The number of such disputes in Consumer’s dispute; provided, however, a copy or codification or summary of which information disputed was deleted that if Equifax in good faith cannot any Consumer statement of explanation from, or modified in, the disputing determine the nature of the Consumer’s of the dispute that has been filed by the Consumer’s File, after reinvestigation dispute, Equifax shall attempt to Consumer, to any Person specifically response; and determine the nature of the dispute by designated by the Consumer who has 5. The number of such disputes in contacting the Consumer by mail or within the preceding two years received which information disputed was deleted telephone within five (5) business days a Consumer Report for Employment from the disputing Consumer’s File of receiving the Consumer’s dispute, Purposes, or within the preceding six because no response to Equifax’s and complete its reinvestigation within months received a Consumer Report for verification inquiry was received within thirty (30) days of the Consumer’s any other purpose, which contained the thirty days. response if Equifax in good faith can deleted or disputed information. then determine the nature of the IV Consumer’s dispute; II It is further ordered that, except for b. Communicating to the source used It is further ordered that Equifax shall, Section III above, Equifax shall, until to verify the disputed information, a annually for the five (5) year period the expiration of five (5) years following summary of the nature and substance of following the Approval Date, measure, the effective date of this order, maintain the Consumer’s dispute; monitor, and test the extent to which and upon request make available to the c. Accepting the Consumer’s version changes in its computer system, ADE for inspection and copying, all of the disputed information and including its algorithms, reduce the documents demonstrating compliance correcting or deleting the disputed incidence of Mixed Files. with this order. Such documents shall information, when the Consumer 1. In complying with this Section, include, but are not limited to, submits to Equifax documentation Equifax shall submit, within one representative copies of each form of obtained from the source of the hundred eighty (180) days of the agreement or contract governing information in dispute which confirms effective date of this Order, for approval Subscriber access to or use of Credit that the disputed information on the to the Associate Director for Information, each periodic audit or Consumer Report was inaccurate or Enforcement, Bureau of Consumer similar report concerning the testing or incomplete, unless Equifax in good faith Protection, of the Federal Trade monitoring of its systems for has reason to doubt the authenticity of Commission (‘‘ADE’’): preparation, maintenance, and the documentation, in which case a. A proposed methodology for furnishing of Consumer Reports and Equifax need not accept the Consumer’s establishing a baseline against which files, instructions given to employees version of the dispute if it reinvestigates changes may be measured, monitored, regarding compliance with the the dispute by contacting the source of and tested; and provisions of this order, and any notices the information and verifies that the b. A proposed methodology for provided to Subscribers in connection documentation is not authentic; and accurately measuring, monitoring, with the terms of this order. d. Employing reasonable procedures testing, and reporting the effects of designed specifically to resolve (i) changes made against the baseline V Consumer disputes that Equifax has established under the preceding It is further ordered that Equifax shall reason to believe arise from Mixed Files, paragraph. deliver a copy of this order to all of its and (ii) Consumer disputes that indicate 2. For five (5) years following the present and future management officials the repeated inclusion in Consumer Approval Date, Equifax shall submit having administrative or policy Reports of previously disputed annually to the ADE, in writing, the responsibilities with respect to the inaccurate or incomplete items. results of its comparison using the subject matter of this order. 9846 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices VI including but not limited to Credit requested disclosure of the information It is further ordered that Equifax shall Information utilized for fraud alert or in their own files. The complaint notify the ADE at least thirty (30) days similar application verification services, additionally alleges that the respondent prior to any proposed change in Equifax which categorizes the identifiers on the failed to properly reinvestigate disputed that might affect compliance obligations Consumer or categorizes any other data items of information in consumer arising out of this order such as on the Consumer and is susceptible of reports. dissolution, assignment, sale resulting being furnished to a Subscriber, and the The complaint alleges that by its in the emergence of a successor order does not in any way limit the right failures to comply with the Fair Credit corporation, or the creation or of the Commission to take any Reporting Act and pursuant to Section dissolution of subsidiaries. appropriate action after entry of this 621(a) of the Fair Credit Reporting Act, order relating to this issue, nor does it respondent has engaged in unfair and VII limit in any way Equifax’s defenses to deceptive acts or practices in or It is further ordered that Equifax shall, any such action. affecting commerce in violation of within one hundred eighty (180) days of Section 5(a)(1) of the Federal Trade Analysis of Proposed Consent Order to Commission Act. service of this order, deliver to the ADE Aid Public Comment a report, in writing, setting forth the The consent order contains provisions manner and form in which it has The Federal Trade Commission has designed to ensure that the respondent complied with this order as of that date. accepted, subject to final approval, an does not engage in similar allegedly The Commission shall keep such report agreement containing a consent order illegal acts and practices in the future. and its contents, or any report, from Equifax Credit Information Specifically, Part I of the Order requires document, or other information Services, Inc., a corporation (‘‘the the respondent to maintain reasonable provided under Sections II, III, or IV respondent’’). This agreement, among procedures to assure that information above, or any notification provided other requirements, requires the placed in a consumer’s file belongs to under Section VI above, strictly respondent to cease and desist from the consumer in question and is also confidential, in accordance with the failing to follow reasonable procedures accurate, complete and up-to-date Commission’s Rules of Practice. to assure maximum possible accuracy without obsolete information. Further, when preparing consumer reports and the Order requires respondent to VIII cease and desist from failing to maintain reinvestigate disputed items of It is further ordered that if the FCRA reasonable procedures to limit the information in a consumer’s file in a is amended (or other similar federal furnishing of consumer reports to timely and reasonable manner, generally legislation enacted) or the Commission subscribers that have permissible within 30 days. issues any interpretation of the FCRA, purposes to receive them, such as The consent order also contains relating to any obligation imposed on purposes encompassing credit provisions requiring respondent to Equifax herein, which creates any new transactions involving the consumer, maintain reasonable procedures to limit requirement for compliance with the employment and the underwriting of the furnishing of consumer reports (and FCRA that directly conflicts with any insurance. specifically consumer reports in the obligation imposed on Equifax by this The proposed consent order has been form of identification reports containing order, Equifax may conform the manner placed on the public record for sixty employment information) to only those in which it conducts its business as a (60) days for receipt of comments by with permissible purposes to receive Consumer Reporting Agency or its use interested persons. Comments received consumer reports. Further, the consent of Credit Information to the during this period will become part of order provides that respondent disclose requirements of such statutory provision the public record. After sixty (60) days, the nature and substance of all or interpretation; provided, however, the Commission will again review the information (except medical that Equifax shall notify the ADE agreement and the comments received information) in its files on a consumer promptly if it intends to change its and will decide whether it should in response to a proper request for conduct as provided for in this Section, withdraw from the agreement and take disclosure from the consumer who is and provided further that nothing in other appropriate action, or make final the subject of the file. this provision shall limit the right of the the proposed order contained in the Part II of the Order requires the FTC to challenge any determination of agreement. respondent to submit to the Commission direct conflict of Equifax hereunder and According to the complaint, the for approval a methodology by which to seek enforcement of Equifax’s respondent failed to take reasonable changes to the respondent’s computer obligations under this order to the steps to reduce the incidence of system will be measured. The incidence extent such determination is erroneous. inaccuracies and obsolete items of of consumer reports containing For purposes of this order, and by way information in the consumer reports it information of other consumers, not the of example only, a ‘‘direct conflict’’ furnished and failed to maintain and subject of the report, will be measured between this order and a new statutory follow reasonable procedures to assure against a baseline established by the amendment or interpretation shall maximum possible accuracy of the methodology to determine the efficacy include a requirement in any such information contained in its consumer of the computer changes. These amendment or interpretation that a reports. measurements will be submitted for five Consumer Reporting Agency complete a The complaint also alleges that (5) years to the Commission in the form task or obligation addressed in this respondent failed to limit the furnishing of annual reports. order in a greater period of time than is of consumer reports to only those who Part III of the Order requires the specified in the order. possessed a permissible purpose to respondent to annually for five (5) years receive consumer reports. The submit to the Commission information IX complaint further alleges that the concerning the numbers of disclosures This order does not address the issue respondent failed adequately to give provided and disputes received by the of disclosure under Section 609 of disclosures of the nature and substance respondent. Credit Information (whether or not of all information (except medical Part IV of the Order requires the separately maintained in any File), information) when consumers properly respondent for a period of five years to Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9847 maintain and make available all condition that it divest either its own office and place of business at 5619 DTC documents demonstrating its Columbus cable TV assets, or those of Parkway, Englewood, Colorado 80111. compliance with the Order. TeleCable, within twelve months. If the 2. Proposed respondent admits all the Part V of the Order requires the divestitures were not completed on jurisdictional facts set forth in the draft respondent to deliver a copy of the time, the consent agreement would of complaint. Order to all of its present and future permit the Commission to appoint a 3. Proposed respondent waives: management officials having trustee to complete the transaction. In a. any further procedural steps; administrative responsibilities with addition, TCI, for ten years, would be b. the requirement that the respect to the subject matter of the required to obtain Commission approval Commission’s decision contain a Order. before acquiring any cable TV system in statement of findings of fact and Part VI of the Order requires the the Columbus, GA., area. conclusions of law; respondent to notify the Commission at c. all rights to seek judicial review or DATES: Comments must be received on otherwise to challenge or contest the least thirty (30) days prior to any or before April 24, 1995. proposed change in its corporate validity of the order entered pursuant to structure that may affect its compliance ADDRESSES: Comments should be this agreement; and d. any claim under the Equal Access with the Order. directed to: FTC/Office of the Secretary, Part VII of the Order requires the Room 159, 6th St. and Pa. Ave., NW., to Justice Act. 4. This agreement shall not become respondent to file a written report with Washington, DC 20580. part of the public record of the the Commission within one hundred FOR FURTHER INFORMATION CONTACT: proceeding unless and until it is eighty (180) days after service of the Ronald Rowe, FTC/S–2105, accepted by the Commission. If this Order detailing the manner and form in Washington, DC 20580, (202) 326–2610. agreement is accepted by the which it has complied with the Order. SUPPLEMENTARY INFORMATION: Pursuant Commission it, together with the draft of Part VIII of the Order allows to Section 6(f) of the Federal Trade complaint contemplated thereby, will be respondent to conform the manner in Commission Act, 38 Stat. 721, 15 U.S.C. placed on the public record for a period which it conducts its business to any 46 and Section 2.34 of the Commission’s of sixty (60) days and information in FCRA amendment (or other similar Rules of Practice (16 CFR 2.34), notice respect thereto publicly released. The federal legislation enacted) or official is hereby given that the following Commission thereafter may either Commission interpretation which consent agreement containing a consent withdraw its acceptance of this relates to any obligation imposed on the order to cease and desist, having been agreement and so notify the proposed respondent by the Order and which filed with and accepted, subject to final respondent, in which event it will take directly conflicts with an obligation approval, by the Commission, has been such action as it may consider imposed by the Order. placed on the public record for a period appropriate, or issue and serve its Part IX of the Order specifically of sixty (60) days. Public comment is complaint (in such form as the reserves for future consideration the invited. Such comments or views will circumstances may require) and issue of disclosure of fraud alert or be considered by the Commission and decision, in disposition of the similar verification services to will be available for inspection and proceeding. consumers who properly request copying at its principal office in 5. This agreement is for settlement disclosure under the FCRA. accordance with Section 4.9(b)(6)(ii) of purposes only and does not constitute The purpose of this analysis is to the Commission’s rules of Practice (16 an admission by proposed respondent facilitate public comment on the CFR 4.9(b)(6)(ii)). that the law has been violated as alleged proposed Order, and it is not intended in the draft of complaint, or that the to constitute an official interpretation of Agreement Containing Consent Order facts as alleged in the draft complaint, the agreement and proposed Order or to The Federal Trade Commission other than jurisdictional facts, are true. modify in any way their terms. (‘‘Commission’’), having initiated an 6. This agreement contemplates that, By direction of the Commission. investigation of the proposed if it is accepted by the Commission, and Donald S. Clark, acquisition of the common stock of if such acceptance is not subsequently Seceretary. TeleCable Corporation by Tele- withdrawn by the Commission pursuant [FR Doc. 95–4279 Filed 2–21–95; 8:45 am] Communications, Inc. and the proposed to the provisions of § 2.34 of the merger of TeleCable Corporation into BILLING CODE 6750±01±M Commission’s Rules, the Commission TCI Communications, Inc., an entity may, without further notice to the within Tele-Communications, Inc., and proposed respondent, (1) issue its [File No. 941 0132] it now appearing that Tele- complaint corresponding in form and Communications, Inc., hereinafter substance with the draft of complaint Tele-Communication, Inc.; Proposed sometimes referred to as ‘‘proposed and its decision containing the Consent Agreement With Analysis To respondent,’’ is willing to enter into an following order to divest and to cease Aid Public Comment agreement containing an order to divest and desist in disposition of the AGENCY: Federal Trade Commission. certain assets, and to cease and desist proceeding and (2) make information from making certain acquisitions, and ACTION: Proposed Consent Agreement. public with respect thereto. When so providing for other relief: entered, the order to divest and to cease SUMMARY: In settlement of alleged It is hereby agreed by and between and desist shall have the same force and violations of federal law prohibiting proposed respondent, by its duly effect and may be altered, modified or unfair acts and practices and unfair authorized officer and attorney, and set aside in the same manner and within methods of competition, this consent counsel for the Commission that: the same time provided by statute for agreement, accepted subject to final 1. Proposed respondent Tele- other orders. The order shall become Commission approval, would permit, Communications, Inc. is a corporation final upon service. Delivery by the U.S. among other things, Tele- organized, existing, and doing business Postal Service of the complaint and Communication, Inc. (TCI) to complete under and by virtue of the laws of the decision containing the agreed-to order its acquisition of TeleCable, on the State of Delaware, with its principal to proposed respondent’s address as 9848 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices stated in this agreement shall constitute E. ‘‘Designated Columbus Cable Assets only to an acquirer or acquirers service. Proposed respondent waives Television System’’ means the Cable that receive the prior approval of the any right it may have to any other Television System chosen by TCI Commission and only in a manner that manner of service. The complaint may pursuant to Paragraph III B. 2. or if TCI receives the prior approval of the be used in construing the terms of the fails to designate a Cable Television Commission. The purpose of the order, and no agreement, understanding, System pursuant to, and within the time divestiture of the Columbus Cable representation, or interpretation not limits of, Paragraph III B. 2., the Television System Assets is to ensure contained in the order or the agreement Columbus Cable Television System the continued use of the Columbus may be used to vary or contradict the Assets. Cable Television System Assets as an terms of the order. F. ‘‘Cable Television Service’’ means ongoing, viable deliverer of Cable 7. Proposed respondent has read the the delivery of various video Television Service in the Relevant proposed complaint and order entertainment and informational Geographic Area, and to remedy the contemplated hereby. Proposed programming via a cable television lessening of competition resulting from respondent understands that once the system. the proposed acquisition of TeleCable order has been issued, it will be G. ‘‘Cable Television System’’ means Corporation by TCI as alleged in the required to file one or more compliance a facility, consisting of a set of closed Commission’s complaint. reports showing that it has fully transmission paths and associated signal C. Pending divestiture of the complied with the order. Proposed generation, reception, and control Columbus Cable Television System respondent further understands that it equipment that is designed to provide Assets, respondent shall take such may be liable for civil penalties in the cable television service, which includes actions as are necessary to maintain the amount provided by law for each video programming and which is competitiveness, viability and violation of the order after it becomes provided to multiple subscribers within marketability of the Columbus Cable final. a community. Television System Assets and to prevent H. ‘‘The Relevant Geographic Area’’ the destruction, removal, wasting, Order means the counties of Muscogee and deterioration, or impairment of any of Harris in the State of Georgia. the Columbus Cable Television System I I. ‘‘Competitiveness, viability and Assets except for ordinary wear and It is ordered that, as used in this marketability’’ of the Columbus Cable tear. order, the following definitions shall Television System Assets means the III apply: Respondent shall continue the operation A. ‘‘Respondent’’ or ‘‘TCI’’ means (1) of TCI’s and TeleCable’s Cable It is further ordered that: Tele-Communications, Inc. and its Television Systems in the ordinary A. If TCI has not divested, absolutely predecessors, successors and assigns, course of business without material and in good faith and with the Commission’s prior approval, the subsidiaries, and divisions, and their change or alteration that would Columbus Cable Television System respective directors, officers, agents, and adversely affect the value or goodwill of Assets within twelve months of the date representatives; and (2) partnerships, such Cable Television Systems and the this order becomes final, the joint ventures, groups and affiliates that Columbus Cable Television System Commission may appoint a trustee to Tele-Communications, Inc. controls, Assets. divest the Columbus Cable Television directly or indirectly, and their II System Assets, provided, however, that successors and assigns, and their It is further ordered that: if the Commission has not approved a respective directors, officers, agents, and A. Respondent shall divest, absolutely proposed divestiture within 120 days of representatives. and in good faith, within twelve months the date the application for such B. ‘‘Control’’ means (i) the ability or of the date this order becomes final, one divestiture has been put on the public right, contractual or otherwise, to direct of the Cable Television Systems record, the running of the divestiture the management decisions of an entity, constituting the Columbus Cable period shall be tolled until the or (ii) an ownership interest of 50% or Television System Assets. Respondent Commission approves or disapproves greater unless a person or entity other shall also divest such additional the divestiture. In the event that the than Respondent has the right to direct ancillary assets and businesses and Commission or the Attorney General the management decisions of such effect such arrangements as are brings an action pursuant to § 5(l) of the entity. necessary to assure the competitiveness, Federal Trade Commission Act, 15 C. ‘‘Commission’’ means the Federal viability and marketability of the U.S.C. § 45(l), or any other statute Trade Commission. Columbus Cable Television System enforced by the Commission, TCI shall D. ‘‘Columbus Cable Television Assets. Respondent shall undertake its consent to the appointment of a trustee System Assets’’ means either TCI’s best efforts to facilitate any in such action. Neither the appointment Cable Television System or TeleCable’s governmental approvals required to of a trustee nor a decision not to appoint Cable Television System now operating effect divestiture of the Columbus Cable a trustee under this Paragraph shall in Muscogee and Harris Counties, Television System Assets and their preclude the Commission or the Georgia, including all properties, continued use in Cable Television Attorney General from seeking civil privileges, rights, interests and claims, Service in the Relevant Geographic penalties or any other relief available to real and personal, tangible and Area. To ensure the availability of it, including a court-appointed trustee, intangible, of every type and description programming to the divested Columbus pursuant to § 5(l) of the Federal Trade that are owned, leased, held or used Cable Television System Assets, Commission Act, or any other statute principally in the provision of Cable Respondent shall waive any exclusive enforced by the Commission, for any Television Service in Muscogee and rights to distribute programming by failure by the respondent to comply Harris Counties, including the means of Cable Television Systems in with this order. governmental permits, franchises, the Relevant Geographic Area. B. If a trustee is appointed by the intangibles, equipment and real B. Respondent shall divest the Commission or a court pursuant to property. Columbus Cable Television System Paragraph III A. of this order, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9849 respondent shall consent to the reasonably request and shall cooperate liability, except to the extent that such following terms and conditions with the trustee. Respondent shall take liabilities, losses, damages, claims, or regarding the trustee’s powers, duties, no action to interfere with or impede the expenses result from misfeasance, gross authority, and responsibilities: trustee’s accomplishment of the negligence, willful or wanton acts, or 1. The Commission shall select the divestitures. Any delays in divestiture bad faith by the trustee. trustee, subject to the consent of caused by respondent shall extend the 9. If the trustee ceases to act or fails respondent, which consent shall not be time for divestiture under this to act diligently, a substitute trustee unreasonably withheld. The trustee Paragraph in an amount equal to the shall be appointed in the same manner shall be a person with experience and delay, as determined by the Commission as provided in Paragraph III A. of this expertise in acquisitions and or, for a court-appointed trustee, by the order. divestitures in the cable television court. 10. The Commission or, in the case of industry. If respondent has not opposed, 6. The trustee shall use his or her best a court-appointed trustee, the court, in writing, including the reasons for efforts to negotiate the most favorable may on its own initiative or at the opposing, the selection of any proposed price and terms available in each request of the trustee issue such trustee within ten (10) days after notice contract that is submitted to the additional orders or directions as may by the staff of the Commission to Commission, subject to respondent’s be necessary or appropriate to respondent of the identity of any absolute and unconditional obligation to accomplish the divestiture required by proposed trustee, respondent shall be divest at no minimum price. The this order. deemed to have consented to the divestiture shall be made in the manner 11. The trustee shall have no selection of the proposed trustee. and to the acquirer or acquirers as set obligation or authority to operate or 2. Within ten (10) days after out in Paragraph II of this order; maintain the Designated Columbus appointment of the trustee, respondent provided, however, if the trustee Cable Television System Assets. shall (1) execute a trust agreement that, receives bona fide offers from more than 12. The trustee shall report in writing subject to the prior approval of the one acquiring entity, and if the to respondent and the Commission Commission and, in the case of a court- Commission determines to approve every sixty (60) days concerning the appointed trustee, of the court, transfers more than one such acquiring entity, the trustee’s efforts to accomplish to the trustee all rights and powers trustee shall divest to the acquiring divestiture. necessary to permit the trustee to effect entity or entities selected by respondent the divestiture required by this order; from among those approved by the IV and (2) notify the trustee in writing Commission. It is further ordered that respondent whether TCI chooses to divest the TCI 7. The trustee shall serve, without shall comply with all terms of the Hold Columbus Cable Television System or bond or other security, at the cost and Separate Agreement, attached to this the TeleCable Columbus Cable expense of respondent, on such Order and made a part hereof as Television System; provided that if TCI reasonable and customary terms and Appendix I. The Hold Separate fails to make this designation within the conditions as the Commission or a court Agreement shall continue in effect until specified time period, the trustee is may set. The trustee shall have the such time as the Columbus Cable authorized to divest either the TCI or authority to employ, at the cost and Television System Assets shall have TeleCable Columbus Cable Television expense of respondent, such been divested as required by this order. System. consultants, accountants, attorneys, 3. Subject to the prior approval of the investment bankers, business brokers, V Commission, the trustee shall have the appraisers, and other representatives It is further ordered that, for a period exclusive power and authority to divest and assistants as are necessary to carry of ten (10) years from the date this order the Designated Columbus Cable out the trustee’s duties and becomes final, respondent shall not, Television System Assets. responsibilities. The trustee shall without the prior approval of the 4. The trustee shall have twelve (12) account for all monies derived from the Commission, directly or indirectly: months from the date the Commission divestiture and all expenses incurred. A. Acquire any stock, share capital, approves the trust agreement described After approval by the Commission and, equity, or other interest in any concern, in Paragraph III B. 2. to accomplish the in the case of a court-appointed trustee, corporate or non-corporate, engaged in divestiture, which shall be subject to the by the court, of the account of the at the time of such acquisition, or prior approval of the Commission. If, trustee, including fees for his or her within the two years preceding such however, at the end of the twelve-month services, all remaining monies shall be acquisition engage in Cable Television period, the trustee has submitted a plan paid at the direction of the respondent, Service within the Relevant Geographic of divestiture or believes that divestiture and the trustee’s power shall be Area; or can be achieved within a reasonable terminated. The trustee’s compensation B. Acquire any assets used for or time, the divestiture period may be shall be based at least in significant part previously used for (and still suitable extended by the Commission, or, in the on a commission arrangement for use for) Cable Television Service case of a court-appointed trustee, by the contingent on the trustee’s divesting the within the Relevant Geographic Area. court; provided, however, the Designated Columbus Cable Television Provided, however, that this Commission may extend this period System Assets. Paragraph V shall not apply to the only two (2) times. 8. Respondent shall indemnify the acquisition of products or services in 5. The trustee shall have full and trustee and hold the trustee harmless the ordinary course of business; and complete access to the personnel, books, against any losses, claims, damages, provided further, that this Paragraph V records and facilities related to the liabilities, or expenses arising out of, or shall not apply to the acquisition of any Designated Columbus Cable Television in connection with, the performance of interest in a concern that is not at the System Assets or to any other relevant the trustee’s duties, including all time of the acquisition engaged in Cable information as the trustee may reasonable fees of counsel and other Television Service within the Relevant reasonably request. Respondent shall expenses incurred in connection with Geographic Area due to the sale within develop such financial or other the preparation for, or defense of any the preceding two years of all assets information as such trustee may claim, whether or not resulting in any used for Cable Television Service within 9850 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices the Relevant Geographic Area to another records and documents in the consummated, it will be necessary to party who intended to operate said possession or under the control of preserve the Commission’s ability to assets for Cable Television Service respondent relating to any matters require the divestiture of the assets within the Relevant Geographic Area. contained in this order; and described in Paragraph II of the Consent B. Upon five days’ notice to Agreement and the Commission’s right VI respondent and without restraint of to have the TeleCable Columbus Cable It is further ordered that: interference from it, to interview Television System Assets continue as a A. Within sixty (60) days after the officers, directors, or employees of viable independent entity; and date this order becomes final and every respondent, who may have counsel Whereas, the purpose of this sixty (60) days thereafter until present, relating to any matters Agreement and the Consent Agreement respondent has fully complied with the contained in this order. is to: provisions of Paragraphs II and III of (i) preserve the TeleCable Columbus Agreement to Hold Separate this order, respondent shall submit to Cable Television System Assets as a the Commission a verified written This Agreement To Hold Separate viable independent cable television report setting forth in detail the manner (‘‘Agreement’’) is by and between Tele- system pending possible divestiture, and form in which it intends to comply, Communications, Inc. (‘‘respondent’’ or and is complying, and has complied with ‘‘TCI’’), a corporation organized, (ii) remedy any anticompetitive Paragraphs II and III of this order. existing, and doing business under and effects of the Acquisition; and Respondent shall include in its by virtue of the laws of the State of Whereas, respondent’s entering into compliance reports, among other things Delaware, with its principal office and this Agreement shall in no way be that are required from time to time, a place of business at 5619 DTC Parkway, construed as an admission by full description of the efforts being Englewood, Colorado 80111; and the respondent that the Acquisition is made to comply with Paragraphs II and Federal Trade Commission illegal; and III of the order, including a description (‘‘Commission’’), an independent Whereas, respondent understands that of all substantive contacts or agency of the United States no act or transaction contemplated by negotiations for the divestiture and the Government, established under the this Agreement shall be deemed identity of all parties contacted. Federal Trade Commission Act of 1914, immune or exempt from the provisions Respondent shall include in its 15 U.S.C. § 41, et seq. of the antitrust laws or the Federal compliance reports copies of all written Whereas, respondent entered into an Trade Commission Act by reason of communications to and from such agreement with TeleCable Corporation anything contained in this Agreement. parties, all internal memoranda, and all (‘‘TeleCable’’), a Virginia corporation, Now, therefore, the parties agree, reports and recommendations whereby respondent will acquire the upon understanding that the concerning divestiture. stock of TeleCable and merge TeleCable Commission has not yet determined B. One (1) year from the date this into TCI Communications, Inc., an whether the Acquisition will be order becomes final, annually for the entity within TCI (hereinafter the challenged, and in consideration of the next nine (9) years on the anniversary of ‘‘Acquisition’’); and Commission’s agreement that, unless the date this order becomes final, and at Whereas, the Commission is now the Commission determines to reject the other times as the Commission may investigating the Acquisition to Consent Agreement, it will not seek require, respondent shall file a verified determine if it would violate any of the further relief from respondent with written report with the Commission statutes enforced by the Commission; respect to the Acquisition, except that setting forth in detail the manner and and the Commission may exercise any and form in which it has complied and is Whereas, if the Commission accepts all rights to enforce this Agreement and complying with this order. the attached Agreement Containing the Consent Agreement to which it is Consent Order (‘‘Consent Agreement’’), annexed and made a part thereof, and in VII which would require the divestiture of the event the required divestiture is not It is further ordered that respondent either the TCI or TeleCable Cable accomplished, to appoint a trustee to shall notify the Commission at least Television System Assets in Columbus, seek divestiture pursuant to the Consent thirty (30) days prior to any proposed Georgia, the Commission must place the Agreement and to seek civil penalties or change in the respondent such as Consent Agreement on the public record a court-appointed trustee or other dissolution, assignment, sale resulting for a period of at least sixty (60) days equitable relief, as follows: in the emergence of a successor and may subsequently withdraw such 1. Respondent agrees to execute and corporation, or the creation or acceptance pursuant to the provisions of be bound by the attached Consent dissolution of subsidiaries or any other Section 2.34 of the Commission’s Rules; Agreement. change that affect compliance and 2. Respondent agrees that from the obligations arising out of the order. Whereas, the Commission is date this Agreement is accepted until concerned that if an understanding is the earliest of the dates listed in VIII not reached, preserving the status quo subparagraphs 2.a–2.b, it will comply It is further ordered that, for the ante of the TeleCable Columbus Cable with the provisions of paragraph 3 of purpose of determining or securing Television System Assets during the this Agreement: compliance with this order, and subject period prior to the final acceptance and a. three (3) business days after the to any legally recognized privilege, issuance of the Consent Agreement by Commission withdraws its acceptance upon written request and on reasonable the Commission (after the 60-day public of the Consent Agreement pursuant to notice to respondent, respondent shall comment period), divestiture resulting the provisions of Section 2.34 of the permit any duly authorized from any proceeding challenging the Commission’s Rules; or representative of the Commission: legality of the Acquisition might not be b. the day after the divestiture A. Access, during office hours and in possible, or might be less than an required by the Consent Agreement has the presence of counsel, to inspect and effective remedy; and been completed. copy all books, ledgers, accounts, Whereas, the Commission is 3. To ensure the independence and correspondence, memoranda and other concerned that if the Acquisition is viability of the TeleCable Columbus Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9851 Cable Television System Assets and to director to be involved in the the Acquisition. Respondent also waives assure that no competitive information management of the TeleCable Columbus all rights to contest the validity of this is exchanged between the TeleCable Cable Television System; provided, Agreement. Columbus Cable Television System and however, that TCI employees involved 5. To the extent that this Agreement the TCI Columbus Cable Television in engineering, construction, customer requires respondent to take, or prohibits System, TCI shall operate the TeleCable service, data processing, training, respondent from taking, certain actions Columbus Cable Television System human resources, finance, legal that otherwise may be required or separate and apart on the following services, tax, accounting, insurance, prohibited by contract, respondent shall terms and conditions: internal audit, payroll, programming, abide by the terms of this Agreement or a. To the maximum extent possible, purchasing, real estate, risk the Consent Agreement and shall not TCI will retain current TeleCable management, telephony, compliance assert as a defense such contract Columbus Cable Television System with FCC regulations, contract requirements in any action brought by management and employees (‘‘the administration, and similar services the Commission to enforce the terms of management team’’) to manage and (‘‘support service employees’’) may this Agreement or Consent Agreement. maintain the TeleCable Columbus Cable provide such services to the TeleCable 6. For the purpose of determining or Television System. The individuals on Columbus Cable Television System. securing compliance with this the management team shall manage the f. Except as required by law, and Agreement, subject to any legally TeleCable Columbus Cable Television except to the extent that necessary recognized privilege, and upon written System independently of the information is exchanged in the course request with reasonable notice to management of TCI’s other businesses, of evaluating the acquisition, defending respondent made to its principal office, including the TCI Columbus Cable investigations or litigation, or respondent shall permit any duly Television System. The individuals on negotiating agreements to divest, TCI, authorized representative or the management team shall not be other than the TCI Contact, the representatives of the Commission: involved in any way in the operation or management team and support service a. Access during the office hours of management of any other TCI Cable employees involved in the TeleCable respondent and in the presence of Television System. If any member of the Columbus Cable Television System counsel to inspect and copy all books, management team is unable or business, shall not receive or have ledgers, accounts, correspondence, unwilling to continue to serve in his or access to, or the use of any material memoranda, and other records and her current position (or becomes unable confidential information about the documents in the possession or under to do so during the term of this TeleCable Columbus Cable Television the control of respondent relating to Agreement) that position will be filled System. (‘‘Material Confidential compliance with this Agreement; by an individual not involved in any information,’’ as used herein, means b. Upon five (5) days’ notice to way in the operation or management of competitively sensitive or proprietary respondent, and without restraint or any other TCI Cable Television System. information not otherwise known to TCI interference from respondent, to b. The management team, in its from sources other than the TCI Contact, interview officers or employees of capacity as such, shall report directly the management team involved in the respondent, who may have counsel and exclusively to an individual to be TeleCable Columbus Cable Television present, regarding any such matters. designated by TCI who has no direct System, or the support service 7. This Agreement shall not be responsibilities for Cable Television employees.) binding until approved by the System operations and who is g. The management team shall serve Commission. competent to assure the continued at the cost and expense of TCI. TCI shall viability and competitiveness of the indemnify the management team against Analysis to Aid Public Comment on the TeleCable Columbus Cable Television any losses or claims of any kind that Provisionally Accepted Consent Order System (‘‘TCI Contact’’). might arise out of his or her The Federal Trade Commission c. TCI shall not exercise direction or involvement under this Agreement, (‘‘Commission’’) has accepted for public control over, or influence directly or except to the extent that such losses or comment from Tele-Communications, indirectly the management team or any claims result from misfeasance, gross Inc. (‘‘TCI’’), an agreement containing of its activities relating to the operations negligence, willful or wanton acts, or consent order. This agreement has been of the TeleCable Columbus Cable bad faith by the management team. placed on the public record for sixty Television System; provided, however, h. If any member of the management (60) days from receipt of comments from that TCI may exercise such direction team ceases to act or fails to act interested persons. and control over the management team diligently, a substitute member shall be Comments received during this period and the TeleCable Columbus Cable appointed. will become part of the public record. Television System Assets as is necessary 4. Should the Federal Trade After sixty (60) days, the Commission to ensure compliance with this Commission seek in any proceeding to will again review the agreement and the Agreement and with the Consent compel respondent to divest any of the comments received, and will decide Agreement and with all applicable laws. Columbus Cable Television System whether it should withdraw from the d. TCI shall maintain the Assets, as provided in the Consent agreement or make final the agreement’s marketability, viability, and Agreement, or to seek any other order. competitiveness of the TeleCable injunctive or equitable relief for any The Commission’s investigation of Columbus Cable Television System failure to comply with the Consent this matter concerns TCI’s proposed assets and shall not sell, transfer, Agreement or this Agreement, or in any acquisition of TeleCable Corporation encumber (other than in the ordinary way relating to the Acquisition, as (‘‘TeleCable’’). TeleCable is the 18th course of business), or otherwise impair defined in the draft complaint, largest cable company in the United their marketability, viability or respondent shall not raise any objection States, and operates 21 cable systems competitiveness. based upon the expiration of the located in 15 states. The Commission’s e. Except for the TCI Contact and the applicable Hart-Scott-Radino Antitrust investigation of this matter focused on management team, TCI shall not permit Improvements Act waiting period or the the Columbus, Georgia, metropolitan any other TCI employee, officer, or fact that the Commission has permitted area. There are only three cable 9852 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices television providers in Columbus. TCI DEPARTMENT OF HEALTH AND Ms. Carole Frank, NCI Committee and TeleCable are the two largest cable HUMAN SERVICES Management Officer, National Institutes television providers in the Columbus of Health, Executive Plaza North, Room area in terms of the number of National Institutes of Health 630E, 6130 Executive Boulevard MSC 7405, Bethesda, Maryland 20892–7405, subscribers and the number of homes National Cancer Institute; Meeting passed. (301) 496–5708, will provide summaries of the meetings and rosters of committee the agreement containing consent Pursuant to Pub. L. 92–463, notice is members upon request. Substantive order would, if finally issued by the hereby given of the meeting of the Acrylonitrile Study Advisory Panel, program information may be obtained Commission, settle charges alleged in National Cancer Institute, National from the contacts listed below. the Commission’s complaint that TCI’s Institutes of Health, on Friday March 24, Committee Name: Developmental acquisition of TeleCable would 1995. The meeting will be held in Therapeutics Contracts Review substantially lessen competition in the Conference Room H, Executive Plaza Committee. distribution of multichannel video North, 6130 Executive Boulevard, Contact Person: Dr. C. Michael Kerwin, programming by cable television in the Rockville, Maryland 20892. Scientific Review Administrator, Columbus, Georgia, area, in violation of This meeting will be open to the DEA, NCI, NIH, Executive Plaza Section 7 of the Clayton Act. The nature public from 10 am to 5 pm for North, Room 601A, 6130 Executive of such competition to be preserved is discussion and review of study progress. Boulevard, Rockville, MD 20852– actual competition to serve existing Attendance by the public will be limited 7405, Telephone: (301) 496–7421 homes, hotels, and apartment to space available. Date of Meeting: March 3, 1995 complexes. The order will also preserve Ms. Carole A. Frank, Committee Place of Meeting: Executive Plaza North, competition for providing cable service Management Officer, National Cancer Conference Room J, 6130 Executive to new housing developments and other Institute, Executive Plaza North, Room Boulevard, Rockville, MD 20852 presently cabled portions of the 630, National Institutes of Health, Closed: 9 am to adjournment Columbus area. The Commission’s Bethesda, Maryland 20892 (301/496– Agenda: Review, discussion and complaint further alleges that TCI’s 5708) will provide summaries of the evaluation of individual contract meeting and rosters of committee merger agreement with TeleCable proposals. members, upon request. violates Section 5 of the Federal Trade Dr. Aaron Blair, Executive Secretary, Committee Name: Board of Scientific Commission Act. Division of Cancer Etiology, National Counselors, Division of Cancer The order accepted for public Cancer Institute, National Institutes of Biology, Diagnosis, and Centers comment would require TCI to divest a Health, Executive Plaza North, Room Contact person: Dr. Ihor J. Masnyk, cable television system in the 418, 6130 Executive Boulevard, Executive Secretary, NCI, NIH, Columbus, Georgia, area. If TCI fails to Rockville, Maryland 20892 (301/496– Building 31A, Room 3A11, 9000 divest a system within one year, the 9093) will furnish substantive program Rockville Pike, Bethesda, MD 20892– 2440, Telephone: (301) 496–3251 order allows the Commission to information. Date of Meeting: March 6, 1995 appointment a trustee to sell a cable Individuals who plan to attend and need special assistance, such as sign Place of Meeting: Building 31C— system. A hold separate agreement Conference Room 10, National executed in conjunction with the language interpretation or other special accommodations, should contact Dr. Institutes of Health, 9000 Rockville consent agreement requires TCI, until Pike, Rockville, MD 20892 completion of the divestiture (or as Aaron Blair, (301) 496–9093, in advance of the meeting. Open: 8:30 am to adjournment otherwise specified), to maintain Agenda: Discussion and review of the TeleCable’s Columbus cable system Dated: February 15, 1995. division budget and review of separate from TCI’s other operations. Susan K. Feldman, concepts for grants and contracts. For ten (10) years from the date the Committee Management Officer, National Institutes of Health. These meetings will be closed, as order becomes final, the order would indicated, in accordance with [FR Doc. 95–4244 Filed 2–21–95; 8:45 am] also prohibit TCI, without obtaining provisions set forth in secs. 552b(c)(4) prior Commission approval, from BILLING CODE 4140±01±M and 552b(c)(6), Title 5, U.S.C. Proposals acquiring any cable television system in and the discussions could reveal the Columbus, Georgia, area. National Institute of Health confidential trade secrets or commercial The purpose of this analysis is to property such as patentable material invite public comment concerning the National Cancer Institute; Meetings and personal information concerning consent order. This analysis is not individuals associated with the Pursuant to section 10(d) of the proposals, disclosure of which would intended to constitute an official Federal Advisory Committee Act, as interpretation of the agreement and constitute a clearly unwarranted amended (5 U.S.C. Appendix 2), notice invasion of personal privacy. order or to modify their terms in any is hereby given of the National Cancer way. This notice is being published less Institute (NCI) advisory committee than fifteen days prior to the meeting By direction of the Commission. meetings. due to the urgent need to meet timing Donald S. Clark, These meetings will be open to the limitations imposed by the review cycle. public as indicated below with Secretary. attendance limited to space available. (Catalog of Federal Domestic Assistance [FR Doc. 95–4280 Filed 2–21–95; 8:45 am] Individuals who plan to attend and Program Numbers: 93.393, Cancer Cause and BILLING CODE 6750±01±M Prevention Research; 93.394, Cancer need special assistance, such as sign Detection and Diagnosis Research; 93.395, language interpretation or other Cancer Treatment Research; 93.396, Cancer reasonable accommodations, should Biology Research; 93.397, Cancer Centers notify the contact person in advance of Support; 93.398, Cancer Research Manpower; the meeting. 93.399, Cancer Control) Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9853 Dated: February 15, 1995. Building, Room 9C–26, 5600 Fishers that ‘‘the applicant must be designated Susan K. Feldman, Lane, Rockville, MD 20857, to act on behalf of the larger evolving Committee Management Officer, National Telephone: 301, 443–6470 coalition of multiple partnerships Institutes of Health. The meetings will be closed in proposed in the grant application.’’ [FR Doc. 95–4242 Filed 2–21–95; 8:45 am] accordance with the provisions set forth Public notice was also given in the BILLING CODE 4140±01±M in sec. 552b(c)(4) and 552b(c)(6), Title 5, Federal Register on: January 4, 1995, U.S.C. Applications and/or proposals Volume 60, No. 2, pages 474–478; and the discussions could reveal January 30, 1995, Volume 60, No. 19, National Institutes of Health confidential trade secrets or commercial pages 5688–5691; and February 10, property such as patentable material 1995, Volume 60, No. 28, pages 7977– National Institute of Mental Health; and personal information concerning 7984; of the availability of funds from Closed Meetings individuals with the applications and/or the SAMHSA Centers—Center for Mental Health Services, Center for Pursuant to section 10(d) of the proposals, the disclosure of which Substance Abuse Prevention, and Center Federal Advisory Committee Act, as would constitute a clearly unwarranted for Substance Abuse Treatment—for amended (5 U.S.C. Appendix 2), notice invasion of personal privacy. grant and cooperative agreement is hereby given of the following This notice is being published less activities during FY 1995. meetings of the National Institute of than fifteen days prior to the meeting These notices specified that Mental Health Initial Review Group: due to the urgent need to meet timing limitations imposed by the intramural competing grant and cooperative Agenda/Purpose: To review and research review cycle. agreement applications should be evaluate grant applications submitted to the Division of Research Committee Name: Child (Catalog of Federal Domestic Assistance Program Numbers 93.126, Small Business Grants, NIH, Westwood Building-Room Psychopathology and Treatment 240, 5333 Westbard Avenue, Bethesda, Review Committee Innovation Research; 93.176, ADAMHA Small Instrumentation Program Grants; MD 20892. Date: March 1–3, 1995 93.242, Mental Health Research Grants; The mailing address for the Division Time: 9 a.m. 93.281, Mental Research Scientist of Research Grants, NIH, is being Place: Wyndham Brystol Hotel, 2430 Development Award and Research Scientists changed. Effective April 21, 1995, all Pennsylvania Avenue NW., Development Award for Clinicians; 93.282, competing SAMHSA applications must Washington, DC 20037 Mental Health Research Service Awards for be sent to: Division of Research Grants, Contact Person: Bernice R. Cherry, Research Training; and 93.921, ADAMHA National Institutes of Health, 6701 Grants Technical Assistant, Parklawn Science Education Partnership Award. Rockledge Drive MSC–7710, Bethesda, Building, Room 9C–18, 5600 Fishers Dated: February 15, 1995. MD 20892–7710.* Lane, Rockville, MD 20857, Susan K. Feldman, Telephone: 301, 443–1367 Committee Management Officer, National Dated: February 16, 1995. Committee Name: Mental Health AIDS Institutes of Health. Richard Kopanda, and Immunology Review [FR Doc. 95–4243 Filed 2–21–95; 8:45 am] Acting Executive Officer, SAMHSA. Committee—1 BILLING CODE 4140±01±M [FR Doc. 95–4323 Filed 2–21–95; 8:45 am] Date: March 2–3, 1995 BILLING CODE 4162±20±P Time: 8:30 a.m. Place: Hyatt Regency Bethesda, One Substance Abuse and Mental Health Bethesda Metro Center, Bethesda, MD Services Administration Cooperative Agreement with the 20814 Pennsylvania Department of Health Contact Person: Regina M. Thomas, Fiscal Year (FY) 1995 Notices of Grants Technical Assistant, Parklawn Funding Availability AGENCY: Center For Substance Abuse Treatment, Substance Abuse and Mental Building, Room 9C–26, 5600 Fishers AGENCY: Substance Abuse and Mental Lane, Rockville, MD 20857, Health Services Administration Health Services Administration (SAMHSA), HHS. Telephone: 301, 443–6470 (SAMHSA), HHS. ACTION: Notice of a planned single Committee Name: Epidemiology and ACTION: Correction notice. Genetics Review Committee source, cooperative agreement award to Date: March 5–7, 1995 SUMMARY: Public notice was given in the support further development and Time: 9 a.m. Federal Register on February 10, 1995, continuation of a model comprehensive Place: Embassy Suites at Chevy Chase, Volume 60, No. 28, pages 7980–7984, of substance abuse treatment 4300 Military Road, NW., the funding opportunities for grants and demonstration program for the City of Washington, DC 20015 cooperative agreements from the Center Philadelphia. Contact Person: Bernice R. Cherry, for Substance Abuse Prevention (CSAP) SUMMARY: The Center for Substance Grants Technical Assistant, Parklawn during FY 1995. On page 7983, under Abuse Treatment (CSAT), SAMHSA, is Building, Room 9C–18, 5600 Fishers the Eligible Applicants section of 4.1.3 publishing this notice to provide Lane, Rockville, MD 20857, Community Prevention Coalitions information to the public regarding a Telephone: 301, 443–1367 Demonstration Grant Program, a planned single source competing Committee Name: Mental Health AIDS statement was included that ‘‘the continuation award to the Pennsylvania and Immunology Review applicant must be part of an existing Department of Health for the further Committee—2 community partnership and must be development and operation of a model Date: March 6–7, 1995 designated to act on behalf of the larger substance abuse treatment Time: 8:30 a.m. coalition of multiple partnerships demonstration program. The current Place: Hyatt Regency Bethesda, One proposed in the grant application.’’ ‘‘Target Cities’’ project period will be Bethesda Metro Center, Bethesda, MD The requirement that the applicant 20814 must be part of an existing partnership * Applicants who wish to use express mail or Contact Person: Rehana A. Chowdhury, has been deleted, and the revised courier service should change the zip code to Grants Technical Assistant, Parklawn Eligible Applicants section now states 20817–7710. 9854 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices extended for an additional two years. the 1993 Program Announcement No. (3) Individuals with alcohol and drug The first year of the new cycle funding, AS 93–07. problems and their collaterals are not fourth year of operation, will be funded Many areas of the United States could capable of effectively negotiating the with approximately $2,500,000 in benefit from additional financial aid complexities of a system composed of federal funds. This is not a request for designed to improve access to high discrete, uncoordinated programs and applications. The cooperative agreement quality, effective addiction treatment are often unable to locate the treatment will be awarded to the Pennsylvania and recovery programs and related program(s) that best suits their needs. Department of Health only upon receipt health and human services. Some cities (4) Individuals may be turned away of a satisfactory application which is are facing demand for these resources in from programs that lack the capacity to recommended for approval by an initial crisis proportions. provide needed assistance, and may be review committee and the CSAT Epidemiological data indicate that unaware that there are other treatment National Advisory Council. individuals who live near or below the alternatives available within or adjacent AUTHORITY/JUSTIFICATION: The competing poverty line in large metropolitan areas to the community in which they live. continuation award will be made under tend to exhibit a high prevalence of (5) Individuals may be admitted to the authority of Section 510(b)(5) of the alcohol and drug use and a programs that are not capable of Public Health Service Act, as amended concomitantly high incidence of addressing their unique needs or are not (42 U.S.C. 290bb–3). addiction-related medical, designed to provide services in a cost- An award is being made on a single psychological and socio-economic effective manner. (6) Services may be delivered in a source basis in response to the Senate problems. Escalating incidence rates for manner that is inconsistent with the Committee on Appropriations report HIV/AIDS, tuberculosis and sexually current racial, ethnic, cultural, socio- 103–318, accompanying HR 4606, transmitted diseases in the metropolitan economic and practical realities of the which has language that states: areas are closely linked to alcohol and individuals and families who request ‘‘Sufficient funding has been provided drug use, as are homelessness, assistance. for CSAT to conduct an application unemployment, crime and violence. In most metropolitan communities, Since June 1992, the Philadelphia cycle in fiscal year 1995 to extend from multiple factors have combined over Target City Project has addressed many 3 to 5 years funding for the target cities time to diversify and fragment the of the problems discussed above by grantee that was funded out of the components of the health and human directly enhancing the public drug and normal funding cycle in fiscal year services system rather than to integrate alcohol service system through eight 1991.’’ The report further states: ‘‘The and facilitate the provisions of services inter-related components. These Committee expects the Center will and case processing alternatives for components are a central intake unit, a maintain an application criteria that is those who suffer from alcohol and drug management information system, an consistent with and that meets the problems. In almost all cases, enhanced case management system, review standards and other jurisdictions with high demand for provider staff enhancements, training requirements subject to target city addiction treatment and recovery and staff development, project applicants in fiscal year 1993.’’ services have lacked sufficient resources evaluation, and two special initiatives. BACKGROUND: In fiscal year (FY) 1990, for the enhancement or expansion of The special initiatives include a Labor the Office for Treatment Improvement diagnostic, coordinated case Initiative component that is (CSAT’s predecessor agency) initiated management and evaluation efforts implemented through the Department of the Target Cities Cooperative Agreement necessary to improve the effectiveness Labor’s Job Training Partnership Act, Demonstration Program to assist major of the services infrastructure. Of great and a CSAT Criminal Justice Initiative. metropolitan areas with linking, concern from a public health The Labor Initiative provides vocational integrating, and enhancing the perspective, is that many addiction assessment, training and employment components of their addiction treatment treatment and recovery programs do not opportunities to individuals that have and health and human service systems have the resources or appropriate successfully completed treatment. The in order to overcome the problems linkages with health care facilities to Criminal Justice Initiative provided described below. In 1990, eight target ensure that individuals with addictive funds for the development and cities were funded for a three-year disorders and their sexual partners are implementation of a criminal justice period. On June 1, 1992 a ninth target screened and treated for HIV, management information system (MIS). city was funded in Philadelphia, tuberculosis, and other infectious This MIS has coordinated services and Pennsylvania. In 1993 a review cycle for diseases. provided for the tracking of individuals target cities applications was conducted In the context of complex and through the Philadelphia treatment and by CSAT. In addition to new fragmented metropolitan systems of criminal justice systems. The criminal applications, each of the original eight health and human service delivery, it is justice MIS has provided for an effective cities was given an opportunity to not likely that the needs of alcohol and system of early release from criminal compete for a fourth and fifth year of drug-involved individuals and their justice institutions to treatment continuation funding. Because the families who live near or below the providers. These components provide Philadelphia target city was in its poverty line will be addressed in a cost- patients access to treatment, second year of implementation, it was effective manner, for one or more of the standardized assessment, and not eligible in 1993 to compete for a following reasons: appropriate referrals to an enhanced, fourth and fifth year of funding. In order (1) The system is not capable of integrated, and comprehensive to address this lack of opportunity, and concisely and comprehensively treatment, medical and social service in response to the Senate Committee on assessing individual and family needs. system. During the period of project Appropriations report 103–318, (2) The existing infrastructure is implementation 4,000 individuals have referenced above, a competing designed to provide interventions on a been assessed for treatment services and continuation application is being discrete basis rather than to address the 2,300 admissions to treatment have been requested from the State of bio-psycho-socio-economic needs of the accomplished. This single source award Pennsylvania for the Philadelphia target individual and family as part of a is planned to continue the development city based on the guidelines provided in coordinated continuum. and implementation of a project that has Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9855 successfully improved and enhanced an incidental take permit amendment in further delay of the effective date of substance abuse treatment services for will be fully satisfied. this document. individuals receiving care through the Alternatives Considered General Comments publicly funded treatment system in Philadelphia. 1. No action, Only two entities responded to the FOR FURTHER INFORMATION CONTRACT: 2. Proposed action, publication of the notice with Randolph Muck, Acting Chief, Systems 3. Alternate site location, comments. Improvement Branch CSAT/SAMHSA, 4. Alternate site design, One commenter suggested that we Rockwall II, Room 618, 5600 Fishers 5. Wait for issuance of a regional withdraw this proposal until the Senate Lane, Rockville, MD. 20857. Telephone: Section 10(a)(1)(B) permit. and House Finalize new legislation on (301) 443–8802. Based upon information contained in Concession Management in the Parks. the Environmental Assessment/Habitat The public would not be served to Dated: February 16, 1995. Conservation Plan, the Service has consider this alternative as there exists Richard Kopanda, determined that this action is not a a large backlog of NPS concession Acting Executive Officer, SAMHSA. major Federal action which would contract renewals which are necessary [FR Doc. 95–4322 Filed 2–21–95; 8:45 am] significantly affect the quality of the to complete to allow the commencement BILLING CODE 4162±20±P human environment within the meaning of major renovation and construction of Section 102(2)(c) of the National programs in areas of the nation park Environmental Policy Act of 1969. system, including improvements DEPARTMENT OF THE INTERIOR Accordingly, the preparation of an necessary to protect the health and Environmental Impact Statement on the safety of park visitors and NPS and Fish and Wildlife Service proposed action is not warranted. concessioner employees. In addition, It is my decision to issue the section many concessioners are now operating Finding of No Significant Impact for an 10(a)(1)(B) permit amendment for the under the terms of expired contracts and Incidental Take Permit for the construction and operation of the are accordingly, in need of contract Proposed Canyon Ridge, Phase A, Canyon Ridge, Phase A, Section 3 renewal actions as soon as possible to Section 3 Development, Austin, Travis development in northwest Travis permit business planning, actions and County, TX County, Texas. investments which require the existence AGENCY: Fish and Wildlife Service, John G. Rogers, of a new contract for implementation. It Interior. Regional Director, Region 2, Albuquerque, is also noted that the Sample Prospectus and Related Guidelines document is ACTION: Notice. New Mexico. [FR Doc. 95–4299 Filed 2–21–95; 8:45 am] intended to provide guidance to NPS SUMMARY: personnel concerning possible means to The U.S. Fish and Wildlife BILLING CODE 4310±55±M Service (Service) has prepared an implement new policies and procedures Environmental Assessment/Habitat adopted in the new NPS concession Conservation Plan for issuance of a National Park Service contracting regulations and new section 10(a)(1)(B) permit amendment standard language concession contract, for the incidental take of the Federally Notice of Publication of Final Sample both of which were adopted after endangered golden-cheeked warbler Prospectus and Related Guidelines extensive public comment periods and (Dendroica chrysoparia) during the consideration by NPS of all comments construction and operation of a AGENCY: National Park Service, Interior. received. residential development in northwest SUMMARY: The National Park Service This commenter discussed some Travis County, Texas. published notice to rescind Chapter 6, 7, issues that relate to NPS concession 8 and 11 of NPS–48 (‘‘The Concessions contracting regulations which were Proposed Action Guidelines’’) Thursday, March 17, 1994 amended by NPS in furtherance of the The proposed action is the issuance of requesting comments at that time on the objective of the Secretary’s concession a permit amendment under Section replacement document ‘‘Sample reform initiative. These issues, 10(a)(1)(B) of the Endangered Species Prospectus and Related Guidelines.’’ Possessory Interest, Compensation, Act to authorize the incidental take of The document includes among other Government Improvement and Capital the golden-cheeked warbler during matters, a sample prospectus for Improvement accounts * * *are not construction and operation of the solicitation of offers for National Park further discussed here as they were the Canyon Ridge development on the 24- Service concessions contracts and subject of extensive public comment in acre site. permits, related evaluation guidelines the adoption of the amended regulations The Applicant plans to construct and application information and and standard contract language. The single-family and multi-family criteria. amended regulations were published in residences in northwest Travis County, As an internal staff manual, notice of final in the Federal Register on Texas. The proposed development will the Sample Prospectus and Related September 3, 1992 (57 FR 40496) and comply with all local, State, and Federal Guidelines is not required to be the Final revision of the Standard environmental regulations addressing published in the Federal Register nor Contract Language was published in the environmental impacts associated with was public comment required yet to Federal Register on January 7, 1993 (58 this type of development. Details of the assure that the view of all interested FR 43140). mitigation are provided in the Canyon parties were considered, the National This commenter cautioned that in the Ridge, Phase A, Section 3 Park Service sought public comment on preparation of the Prospectus there are Environmental Assessment/Habitat its Sample Prospectus and Related two items listed for the Appendix which Conservation Plan. Guarantees for Guidelines document and considered all related to existing possessory interest implementation are provided in the comments received and amend the and suggest that care be taken to be sure Implementing Agreement. These document if it is so warranted. The 60- that the incumbent be aware of the conservation plan actions ensure that day comment period has expired, and value established by the present law. the criteria established for issuance of the public interest would not be served They propose that values supplied by 9856 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices the incumbent concessioner would prospectus, it states that ‘‘it is the during the review period of that subject reflect a more accurate assessment of the responsibility of the offeror to assure and does not apply to this process. compensation required, rather than the itself that the terms of its offer provide The commenter states that the use of an outside consultant or NPS it a reasonable opportunity for profit’’. proposed Application seems estimate of this value. NPS The commenter states that while they inconsistent with the statement that the acknowledges that the incumbent is understand that the concessioner financial contributions are secondary entitled to compensation as outlined in ultimately determines by his business selection factors, when in fact, a previous contract but that the terms of practices whether he will realize a additional weight in the scoring process that contract allow for negotiation profit, the whole intent of the statement is clearly outlined here for more between parties, and should they be in the law is that NPS should realize generous contributions to both the unable to reach a compromise, an that its policies could prevent that profit Government and Capital Improvement arbitration process for the final from being realized if they were onerous Accounts and the amount paid in determination of that compensable and confiscatory. NPS makes this Franchise Fees. They question that if the value as purchased by a new offeror. statement in the Prospectus to caution factors are secondary, why should they The commenter expresses concern on the offeror that the terms of an offer be given additional weight? NPS in the arbitration process utilized to being presented must be realistic and considering an offer, requires that all the resolve these disputes and states that an achievable allowing a reasonable primary factors are met before the incumbent concessioner should not be opportunity for profit. Other devises in secondary factors are considered. In this expected to relinquish his or her rights the contract such as amendments, way, should all offerors satisfy the to legal adjudication of the issue franchise fee reviews and arbitrations requirements of the primary factors, through the courts should it become allow for adjustments necessitated there can be a means of determining a necessary. NPS does not recognize this through economic changes, policy better offer by utilizing the secondary as a valid issue in this process as the review and revision. factors. procedure to settle these issues will not A comment was made on the section A second commenter expressed vary from established practice with the entitled ‘‘The Park Area and Its concern in regards to removing the enforcement of the final regulations or Mission’’ regarding the planning possibility of incorporating a standard contract language utilized documents and maintenance and numerically-weighted system into the herein. operating plans for the park that are proposed evaluation process. NPS feels The commenter acknowledged that applicable. They note that plans are that a numerically-weighted system the Concessions Management section of only as good as the commitment of would not allow the flexibility required the prospectus had some excellent those involved to carry out its terms and to deal with the diverse operations it statements but that the ‘‘partnership’’ that no plans can be successful relating manages. Due to the diversity of the between NPS and the concessioner to the concession and operations and operations, specifically stated criteria needs to be emphasized. They later note visitor services unless they involve the are designed for each application that that this is emphasized in the contract concessioner for meaningful input at the address the unique needs of the park language. NPS in designing the package time of formulation. It is the standard and visitor. A numerically-weighted took careful steps to avoid repetition in practice of NPS to involve consultants system must be standardized to be placing information in the prospectus versed in the type of operation proposed effective, and the diversity of the and the contract as they are part of a during the planning process. As the operations for which concessioners are complete presentation. The proposed practice of awarding the contract for the solicited could not be handled in this contract is included in the package to operation of these facilities is a manner. The narrative system presents illustrate the importance of all contract competitive process, completed at a in clear and concise language the exact requirements. future date, the actual concessioner reasons that the panel would choose one Recent changes in the Utilities cannot be involved in this pre-planning program as it relates to capital offeror over another. There is no as the contract has not been executed. guarantee with a numerically-weighted investments were commended. It is important that the planning, Concern was expressed regarding the system to insure that the offer being maintenance and operation documents presented is the best overall offer. requirement that all concessioners be included in the prospectus so that an Should there become a need to present comply with federal, state and local offeror can make an informed offer, the reasons for selection at a later time, laws. NPS has made this a requirement taking the long and short term the justification for a decision based on of all contracts since the labor requirements into consideration. legislation was enacted. They described The commenter discussed the need a numerically-weighted system is not the problems recently encountered with for flexibility in the term of the contract; easily presented. The Sample Prospectus and Related the Department of Labor in a case in Government Improvement and Capital Nevada involving operations that fall Improvement accounts; Compensation Guidelines document is intended to be under the Fair Labor Standards Act and and Possessory interest. These were only a sample document. It is not meant the Contract Wage and Hours Standards issues for comment during the review of to be a document which must be used Act. The Department of Labor has been the Standard Contract Language and as written in every instance. It is to be asked to address this problem but as of Final Rule for Concession Operations. modified as appropriate to fit the needs yet, they have not issued a decision. These comments do not apply to this of individual situations. Further, this This is a non-issue as it relates to this process. document is expected to be modified process. The proposed application was and refined over time as experience Financial programs and practices questioned as it related to the indicates that changes are needed and to were discussed as they relate to the law alternatives presented for concessioner meet the changing needs of the governing the concessions management entitlement to present contract language concession contracting program. program. They state that the NPS on the Preference of renewal. NPS EFFECTIVE DATE: February 22, 1995. statement regarding Fair Return for the included the alternatives as a guide for FOR FURTHER INFORMATION CONTACT: Operator appears misunderstood and future use of this sample. The issue of Robert Yearout, Chief, Concessions misapplied. On Page 13 of the contract language change was addressed Division, National Park Service, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9857 Washington, D.C. 20013–7127. Indian Memorial Advisory Committee Dated: February 9, 1995. Telephone: (202) 343–3784. Gerard Baker, AGENCY: National Park Service, Interior. Dated: February 3, 1995. Superintendent, Little Bighorn Battlefield Maureen Finnerty, ACTION: Notice of Meeting of Sub- National Monument Designated Federal Official, National Park Service. Associate Director, Operations. committee on Design Competition Package. [FR Doc. 95–4317 Filed 2–21–95; 8:45 am] [FR Doc. 95–3676 Filed 2–21–95; 8:45 am] BILLING CODE 4310±70±M BILLING CODE 4310±70±M SUMMARY: This notice announces an upcoming meeting of the Indian Memorial Advisory Sub-Committee Jacob Riis Park, Gateway National National Register of Historic Places; producing the Design Competition Notification of Pending Nominations Recreation Area, NY; Concession Package. Notice of this meeting is Contract Negotiations required under the Federal Advisory Nominations for the following AGENCY: National Park Service, Interior. Committee Act (Public Law 92–463). properties being considered for listing ACTION: Public notice. Meeting Date and Time: Thursday, March in the National Register were received 2, 1995, 1:30–5:00 p.m.; and Friday, March by the National Park Service before SUMMARY: Public notice is hereby given 3, 1995, 8:00–12:00 a.m., and 1:30–5:00 p.m. February 11, 1995. Pursuant to section that the National Park Service proposes Address: American Institute of Architects 60.13 of 36 CFR Part 60 written to award a concession contract (AIA), Denver Chapter Office, 1526 15th comments concerning the significance authorizing continued operation of Street, Denver, Colorado 80202: (303) 446– of these properties under the National visitor parking facilities and services for 2266. Register criteria for evaluation may be the public at Jacob Riis Park, Gateway The Agenda of This Meeting Will Be: Continue work begun by the Indian Memorial forwarded to the National Register, National Recreation Area, New York for National Park Service, P.O. Box 37127, a period of five (5) years from January Advisory Committee and the National Park Service Support Team to produce a package Washington, DC 20013–7127. Written 1, 1995, through December 31, 1999. that establishes the structure, rules, processes comments should be submitted by EFFECTIVE DATE: April 24, 1995. that will guide an upcoming national design March 9, 1995. ADDRESSES: Interested parties should competition for the creation of a memorial to Carold D. Shull, the Indian participants in the 1876 conflict contact the Regional Director, National Chief of Registration, National Register. Park Service, North Atlantic Region, at Little Bighorn Battlefield National Attention: Division of Concessions Monument, located at Crow Agency, GEORGIA Montana. This meeting will incorporate help Bibb County Program Management, 15 State Street, from a select group of four architects under Boston, MA 02109–3572, telephone the sponsorship of the AIA. The architects Macon Historic District (Boundary Increase), (617) 223–5209, to obtain a copy of the will provide professional insight into Roughly, Adams St. and Linden Ave. S. W prospectus describing the requirements formulating and managing design and N of Tattnall Sq. and Broadway and of the proposed contract. competitions and will help steer the final Third Sts. between Poplar and Pine Sts., SUPPLEMENTARY INFORMATION: This decisions of the sub-committee. The Macon. 95000233 contract renewal has been determined to components of the meeting will consist of a Macon Historic District (Boundary Decrease), Roughly bounded by College Pl., Calhoun be categorically excluded from the review of project progress to date and discussion/decisions about; competition and Elm and the CG RR tracks and Monroe, procedural provisions of the National staging; advertising and promotional Jefferson, College and Hardeman. Macon, Environmental Policy Act and no strategies; applicant registration, rules, and 95000234 environmental document will be fees; design competition language; design MAINE prepared. criteria; base data needs and format; The existing concessioner has evaluation criteria; jury composition and Cumberland County performed its obligations to the scoring/selection alternatives; stipends for Fitch’s General Store and House, Long Hill finalists; awards and commendations satisfaction of the Secretary under an Rd., E side, at jct. with ME 114, East (amounts and categories); competition and existing permit which expired by Sebago, 95000215 limitation of time on September 30, design development schedule; and 1990. However, notwithstanding the transforming the final design into a finished Oxford County product. provisions of Section 5 of the Act of Philbrook, Samuel D., House, 162 Main St., Supplementary Information: The Advisory Bethel, 95000216 October 9, 1965 (79 Stat. 969; 16 U.S.C. Committee was established under Title II of § 20), the concessioner has relinquished the Act of December 10, 1991, for the Piscataquis County and waived its right of preference in the purpose of advising the Secretary on the site Slate House, 123 Church St., Brownville, renewal or extension of this permit. The selection for a memorial in honor and 95000217 contract will be awarded to the party recognition of the Indians who fought to submitting the best responsive offer. preserve their land and culture at the Battle Waldo County The Secretary will consider and of Little Bighorn, on the conduct of a national Pendleton, James G., House, 81 W. Main St., evaluate all proposals received as a design competition for the memorial, and Searsport, 95000218 result of this notice. Any proposal, ‘‘. . . to ensure that the memorial designed and constructed as provided in section 203 NEW JERSEY including that of the existing shall be appropriate to the monument, its Passaic County concessioner, must be received by the resources and landscape, sensitive to the Regional Director not later than the history being portrayed and artistically Paterson City Hall, 155 Market St., Paterson, sixtieth (60th) day following publication commendable.’’ 95000232 For Further Information Contact: Ms. of this notice to be considered and NEW YORK evaluated. Barbara A. Booher, Indian Affairs Chrysandra L. Walter, Coordinator and Indian Advisory Committee Greene County Liaison, National Park Service, Rocky Deputy Regional Director. Van Vechten, John, House, Susquehanna Mountain Regional Office, 12795 W. Tpk. (Co. Rd. 23B), Leeds, 95000212 [FR Doc. 95–4318 Filed 2–21–95; 8:45 am] Alameda Parkway, P.O. Box 25287, Denver, BILLING CODE 4310±70±M Colorado 80225–0287, (303) 969–2511. Orange County 9858 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices Peachcroft, River Rd., Montgomery, INTERSTATE COMMERCE [Docket No. AB±290 (Sub-No. 166X)] 95000211 COMMISSION Norfolk Southern Railway CompanyÐ Orleans County [Docket No. AB±380 (1X)] Abandonment ExemptionÐin Aiken, Main Street Historic District, Roughly, along Lexington, and Orangeburg Counties, Main and Center Sts., West Ave. and Huron and Eastern Railway Company, SC Proctor Pl., Medina. 95000213 Inc.ÐAbandonment ExemptionÐin Huron County, MI Norfolk Southern Railway Company NORTH CAROLINA (NS) has filed a notice of exemption AGENCY: Interstate Commerce Guilford County Commission. under 49 CFR 1152 Subpart F—Exempt Abandonments to abandon a segment of Tabernacle Methodist Protestant Church and ACTION: Notice of exemption. Cemetery, 5601 Liberty Rd., Greensboro, its rail line totalling 28.0 miles between 95000231 SUMMARY: The Commission exempts milepost C–124.0, near Edmund, and from the prior approval requirements of milepost C–152.0, near Springfield, in Wake County 49 U.S.C. 10903–04 the Huron and Aiken, Lexington, and Orangeburg Apex Historic District (Boundary Increase), Eastern Railway Company, Inc.’s Counties, SC. (Hake County MPS), Roughly bounded by abandonment of a 9.81-mile segment of NS has certified that: (1) No local E. Chatham, S. Hughes, S. Mason and E. rail line, from milepost 8.69 near Ruth, traffic has not moved over the line for Moore Sts., Apex, 95000210 to milepost 18.5, at Harbor Beach, in at least 2 years; (2) no overhead traffic TEXAS Huron County, MI. has not moved for at least 2 years; (3) DATES: The exemption will be effective no formal complaint filed by a user of Rusk County on March 24, 1995, unless a formal rail service on the line (or by a State or Henderson Commercial Historic District, expression of intent to file an offer of local government entity acting on behalf Roughly bounded by Charlevoix, Marshall, financial assistance is filed. Formal of such user) regarding cessation of Elk and Van Buren Sts., Henderson, expressions of intent to file an offer of service over the line either is pending 95000219 financial assistance under 49 CFR with the Commission or with any U.S. 1152.27(c)(2) 1 must be filed by March 6, District Court or has been decided in VERMONT 1995; petitions to stay must be filed by favor of the complainant within the 2- Addison County March 9, 1995; requests for public use year period; and (4) the requirements at Field Farm (Agricultural Resources of condition must be filed by March 14, 49 CFR 1105.7 (environmental report), Vermont MPS), Fuller Mountain Rd., 1995; and petitions to reopen must be 49 CFR 1105.8 (historic report), 49 CFR Ferrisburgh, 95000214 filed by March 20, 1995. 1105.11 (transmittal letter), 49 CFR ADDRESSES: Send pleadings referring to 1105.12 (newspaper publication) and 49 WASHINGTON Docket No. AB–380 (Sub-No. 1X) to: (1) CFR 1152.50(d)(1) (notice to Pierce County Office of the Secretary, Case Control governmental agencies) have been met. Branch, Interstate Commerce As a condition to use of this Building at 1602 South G Street (Hilltop Commission, 1201 Constitution Ave., Neighborhood MPS), 1602 S. G St., exemption, any employee affected by NW., Washington, DC 20423; and (2) Tacoma, 95000222 the abandonment shall be protected Building at 712–716 Sixth Avenue (Hilltop Petitioner’s representative: Robert A. under Oregon Short Line R. Co.— Neighborhood MPS), 712–716 Sixth Ave., Wimbish, 1920 N Street, NW., Abandonment—Goshen, 360 I.C.C. 91 Tacoma, 95000226 Washington, DC 20036. (1979). To address whether this House at 1510 Tacoma Avenue South FOR FURTHER INFORMATION CONTACT: condition adequately protects affected (Hilltop Neighborhood MPS), 1510 Tacoma Joseph H. Dettmar, (202) 927–5660. employees, a petition for partial Ave. S., Tacoma, 95000230 [TDD for the hearing impaired: (202) revocation under 49 U.S.C. 10505(d) House at 1610 South G Street (Hilltop 927–5721.] must be filed. Neighborhood MPS), 1610 S. G St., SUPPLEMENTARY INFORMATION: Provided no formal expression of Tacoma, 95000223 Additional information is contained in intent to file an offer of financial House at 2314 South Ainsworth Avenue the Commission’s decision. To purchase assistance (OFA) has been received, this (Hilltop Neighborhood MPS), 2314 S. a copy of the full decision, write to, call, exemption will be effective on March Ainsworth Ave., Tacoma, 95000220 or pick up in person from: Dynamic 24, 1995, unless stayed pending House at 2326 South L Street (Hilltop Concepts, Inc., Room 2229, Interstate reconsideration. Petitions to stay that do Neighborhood MPS), 2326 S. L St., Commerce Commission Building, 1201 not involve environmental issues,1 Tacoma, 95000225 Constitution Avenue, NW., Washington, formal expressions of intent to file an House at 605 South G Street (Hilltop DC 20423. Telephone: (202) 289–4357/ OFA under 49 CFR 1152.27(c)(2),2 and Neighborhood MPS), 605 S. G St., Tacoma, 4359. [Assistance for the hearing trail use/rail banking statements under 95000221 impaired is available through TDD House at 708–710 South 8th Street (Hilltop service (202) 927–5712.] 1 A stay will be routinely issued by the Neighborhood MPS), 708–710 S. 8th St., Commission in those proceedings where an Decided: February 7, 1995. Tacoma, 95000224 informed decision on environmental issues House at 802–804 South G Street (Hilltop By the Commission, Chairman McDonald, (whether raised by a party or by the Commission’s Vice Chairman Morgan, Commissioners Section of Environmental Analysis in its Neighborhood MPS), 802–804 S. G St., Simmons and Owen. independent investigation) cannot be made prior to Tacoma, 95000229 the effective date of the notice of exemption. See Vernon A. Williams, McIlvaine Apartments (Hilltop Neighborhood Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d MPS), 920 S. 9th St., Tacoma, 95000227 Secretary. 377 (1989). Any entity seeking a stay based on [FR Doc. 95–4301 Filed 2–21–95; 8:45 am] environmental concerns should file its request as Schultz Apartments (Hilltop Neighborhood soon as possible in order to permit the Commission MPS), 1002 S. 12th St., Tacoma, 95000228 BILLING CODE 7035±01±P to review and act on the request before the exemption’s effective date. [FR Doc. 95–4271 Filed 2–21–95; 8:45 am] 1 See Exempt. of Rail Abandonment—Offers of 2 See Exempt of Rail Abandonment—Offers of BILLING CODE 4310±70±M Finan, Assist., 4 I.C.C.2d 167 (1987). Finan. Assist., 4 I.C.C.2d 164 (1987). Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9859 49 CFR 1152.29 3 must be filed by March the United States Courts, Washington, (E.D.N.C.), and should also make 6, 1995. Petitions to reopen or requests D.C., telephone (202) 273–1820. reference to DJ# 90–5–1–1–3715. for public use conditions under 49 CFR Dated: February 15, 1995. The Consent Judgment may be examined at the Clerk’s Office, United 1152.28 must be filed by March 14, John K. Rabiej, 1995, with: Office of the Secretary, Case States District Court for the Eastern Chief, Rules Committee Support Office. Control Branch, Interstate Commerce District of North Carolina, P.O. Box Commission, Washington, DC 20423. [FR Doc. 95–4261 Filed 2–21–95; 8:45 am] 25670, Raleigh, North Carolina 27611. A copy of any pleading filed with the BILLING CODE 2210±01±M Letitia J. Grishaw, Commission should be sent to Chief, Environmental Defense Section, applicant’s representative: James R. Environment and Natural Resources Division. Paschall, Three Commercial Place, [FR Doc. 95–4227 Filed 2–21–95; 8:45 am] DEPARTMENT OF JUSTICE Norfolk, VA 23510. BILLING CODE 4410±01±M If the notice of exemption contains Notice of Lodging of Consent false or misleading information, the Judgment Pursuant to the Clean Water exemption is void ab initio. Extension of Comment Period for Act NS has filed an environmental report Consent Decrees in United States v. which addresses the abandonment’s In accordance with Departmental Nalco Chemical Co., et al. effects, if any, on the environment and Policy, 28 CFR 50.7, notice is hereby Notice is hereby given that the period historic resources. The Section of given that a Consent Judgment in United Environmental Analysis (SEA) will for public comments on the two States v. Bostic, et al, Civil No. 92–101– proposed Consent Decrees in United issue an environmental assessment (EA) 4 (E.D.N.C), was lodged with the United by February 27, 1995. Interested persons States v. Nalco Chemical Company, et States District Court for the Eastern al., Case No. 91–C–4482 (N.D. Ill.), may obtain a copy of the EA by writing District of North Carolina on November to SEA (Room 3219, Interstate lodged on December 22, 1994 with the 8, 1994. United States District Court for the Commerce Commission, Washington, The Consent Judgment concerns DC 20423) or by calling Elaine Kaiser, Northern District of Illinois, has been alleged violations of section 301(a) of extended to and including March 3, Chief of SEA, at (202) 927–6248. the Clean Water Act, 33 U.S.C. 1311(a), Comments on environmental and 1995. The proposed Consent Decrees resulting from the defendants’ resolve certain claims of the United historic preservation matters must be unauthorized conversion of 147 acres of filed within 15 days after the EA is States against the settling parties under pocosin wetlands on a 194-acre site in the Comprehensive Environmental available to the public. Onslow County, North Carolina. Before Environmental, historic preservation, Response Compensation and Liability agreeing to the terms of the Consent public use, or trail use/rail banking Act, 42 U.S.C. 9601 et seq., relating to Judgment, defendants completed conditions will be imposed, where the Byron Superfund Site in Ogle restoration of part of the property to the appropriate, in a subsequent decision. County, Illinois. Under the de minimis satisfaction of the U.S. Environmental Consent Decree, nine settling parties Decided: February 10, 1995. Protection Agency (‘‘EPA’’), the U.S. among the ‘‘drum’’ parties in the case By the Commission, David M. Konschnik, Army Corps of Engineers (‘‘Corps’’), and will pay the United States $94,405.86. Director, Office of Proceedings. North Carolina state erosion experts. Under the second de minimis Consent Vernon A. Williams, Under the Consent Judgment, Decree, six settling parties among the Secretary. defendants would admit liability for ‘‘IPC customer’’ parties in the case will [FR Doc. 95–4302 Filed 2–21–95; 8:45 am] their violations and agree to pay a pay the United States $429,045.17. BILLING CODE 7035±01±P $60,000 civil penalty to the United The United States published notice of States. They would further agree to the lodging of the Consent Decrees in establish a buffer zone along the the Federal Register on January 10, JUDICIAL CONFERENCE OF THE southern edge of the violation site to 1995. 60 FR 2613 (1995). In response to UNITED STATES protect nearby Mill Creek from future a request for an extension of the public erosion or development and to then comment period, the United States has Hearing of the Judicial Conference transfer title of this buffer zone to an elected to extend the comment period Advisory Committee on Rules of approved third party grantee, such as and to accept public comments received Bankruptcy Procedure the North Carolina Coastal Land Trust, no later than March 3, 1995. Comments within 180 days of signing the Consent AGENCY: Judicial Conference of the should be addressed to the Assistant Judgment. Failure to create the buffer United States, Advisory Committee on Attorney General of the Environment zone or to comply with the transfer of Rules of Bankruptcy Procedure. and Natural Resources Division, title provision would result in the Department of Justice, Washington, DC ACTION: Notice of cancellation of open payment to the United States of an 20530, and should refer to United States hearing. additional $40,000 in stipulated v. Nalco Chemical Company, et al., D.J. SUMMARY: The Bankruptcy Rules public penalties. Ref. No. 90–11–3–687. hearing scheduled to be held in The Department of Justice will receive The proposed Consent Decrees may Washington, D.C. on February 24, 1995, written comments relating to the be examined at the Office of the United has been cancelled. (Original notice of proposed Consent Decree for a period of States Attorney for the Northern District hearing appeared in the Federal Register 30 days from the date of publication of of Illinois, 219 S. Dearborn St., Chicago, of November 18, 1994 (59 FR 59793). this notice. Comments should be Illinois 60604; the Region V Office of FOR FURTHER INFORMATION CONTACT: addressed to Russell Young, Esquire, the United States, Environmental John K. Rabiej, Chief, Rules Committee U.S. Department of Justice, Protection Agency, 77 West Jackson Support Office, Administrative Office of Environmental Defense Section, P.O. Street, Chicago, Illinois 60604; and at Box 23986, Washington, D.C. 20026– the Consent Decree Library, 1120 G 3 The Commission will accept a late-filed trail 3986, should refer to United States v. Street, NW., 4th Floor, Washington, DC use statements so long as it retains jurisdiction. Bostic, et al., Civil No. 92–101–4 20005 (202–624–0892). A copy of the 9860 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices proposed Consent Decrees may be closure of the concrete vault in Judgment that Playmobil has agreed to obtained in person or by mail from the accordance with Oregon’s regulations, prohibits it for a period of ten years Consent Decree Library, 1120 G Street, conduct a RCRA Facility Investigation from (A) agreeing with any dealer to fix NW., 4th Floor, Washington, DC 20005. and perform corrective action at its or maintain the resale prices at which In requesting a copy of the first Consent facility to address releases of hazardous Playmobil‘s products may be sold; (B) Decree (the ‘‘Drum’’ Decree), please constituents and hazardous wastes into discussing or encouraging adherence to enclose a check in the amount of $7.00 the environment, and pay a civil penalty Playmobil’s suggested resale prices; (C) (25 cents per page for reproduction of $70,000 for the violations associated threatening to terminate or retaliate costs), payable to the Consent Decree with the concrete vault. against a dealer for discounting; and (D) Library. In requesting a copy of the The Department of Justice will communicating information to any second Consent Decree (the ‘‘IPC receive, for a period of thirty (30) days dealer relating to the termination of any Customer’’ Decree), please enclose a from the date of this publication, other dealer due to discounting. check in the amount of $6.25 (25 cents written comments relating to the Additionally, for five years Playmobil is per page for reproduction costs), proposed Consent Decree. Comments barred from (E) terminating any dealer payable to the Consent Decree Library. should be addressed to the Assistant or taking any other action for reasons In requesting a copy of both Consent Attorney General for the Environment relating to that dealer’s discounting of Decrees, please enclose a check in the and Natural Resources Division, Playmobil products; (f) announcing that amount of $13.25 (25 cents per page for Department of Justice, Washington, DC it will adopt any resale pricing policy reproduction costs), payable to the 20530, and should refer to United States under which a dealer may be terminated Consent Decree Library. v. Taylor Lumber & Treating, Inc., DOJ because of discounting; (G) acting, or Joel M. Gross, Ref. 1#90–7–1–667. representing that it will act, upon a Acting Section Chief, Environmental The proposed Consent Decree may be dealer’s complaint of another dealer’s Enforcement Section, Environment and examined at the office of the United discounting; and (H) establishing any Natural Resources Division. States Attorney, 312 U.S. Courthouse, cooperative advertising policy that [FR Doc. 95–4282 Filed 2–21–95; 8:45 am] 620 SW Main Street, Portland, Oregon denies or reduces advertising BILLING CODE 4410±01±M 97205; the Region 10 Office of EPA, 7th allowances for any reason related to a Floor Records Center, 1200 Sixth dealer’s advertised discount prices. Avenue, Seattle, WA 98101; and at the These prohibitions are discussed more Consent Decree Pursuant to the Consent Decree Library, 1120 G Street, fully in the Competitive Impact Resource Conservation and Recovery NW., 4th Floor, Washington, DC 20005, Statement. Act (202) 624–0892. A copy of the proposed Playmobil is also required to appoint Consent Decree may be obtained in In accordance with Departmental an antitrust compliance officer and person or by mail from the Consent policy, 28 CFR 50.7, notice is hereby establish an antitrust compliance Decree Library, 1120 G Street, NW., 4th given that a proposed Consent Decree in program. This program is designed to Floor, Washington, DC 20005. In United States v. Taylor Lumber & inform Playmobil employees and agents requesting a copy please refer to the Treating, Inc., Civil Action No. 93–858– about the consent decree and the referenced case and enclose a check in JO was lodged on February 8, 1995, with antitrust laws, thereby helping to the amount of $28.75 (25 cents per page the United States District Court for the prevent future violations. reproduction costs), payable to the District of Oregon. The Consent Decree Consent Decree Library. Public comment is invited within the settles the claims alleged against statutory 60-day comment period. Such defendant, Taylor Lumber & Treating, Bruce S. Gelber, comments and responses to them will Inc. (‘‘Taylor’’) in this action. Acting Section Chief, Environmental be published in the Federal Register The Complaint was brought against Enforcement Section, Environment and and filed with the Court. Comments Natural Resources Division. Taylor pursuant to section 3008 (a), (g), should be directed to Rebecca P. Dick, and (h) of the Resource Conservation [FR Doc. 95–4281 Filed 2–21–95; 8:45 am] Chief, Civil Task Force I, U.S. and Recovery Act (‘‘RCRA’’), as BILLING CODE 4410±01±M Department of Justice, Antitrust amended by the Hazardous and Solid Division, 1401 H Street, NW., Room Waste Amendments of 1984, 42 U.S.C. Antitrust Division 3700, Washington, DC 20530 6928 (a), (g), and (h), for alleged (telephone: 202/514–8368). violations associated with Taylor’s United States of America v. Playmobil Constance K. Robinson, owning and operating a land disposal USA, Inc.; Proposed Final Judgment Director of Operations, Antitrust Division. facility where hazardous waste was and Competitive Impact Statement stored and/or disposed of without a In the United States District Court for permit or interim status authorization Notice is hereby given pursuant to the the District of Columbia (‘‘the concrete vault’’). The Complaint Antitrust Procedures and Penalties Act, United States of America, Plaintiff, v. sought an order that Taylor pay a civil 15 U.S.C. 16(b) through (h), that a Playmobil USA, Inc., 11 E. Nicholas Court, penalty for violations associated with its proposed Final Judgment, Stipulation Dayton, NY 08810. Defendant. storage and/or disposal of hazardous and Competitive Impact Statement have Case Number 1:95CV00214 waste in the concrete vault, complete been filed with the United States Judge: James Robertson closure of the concrete vault in District Court for the District of Deck Type: Antitrust accordance with Oregon’s regulations, Columbia in United States of America Date Stamp: 01/31/95 and perform corrective action at its versus Playmobil USA, Inc., Civil Complaint facility located near Sheridan, Oregon to Action No. 95–0214. The Complaint address releases of hazardous alleged that Playmobil engaged in a The United States of America, constituents and hazardous wastes into combination and conspiracy with plaintiff, by its attorneys acting under the environment. dealers to fix the price of children’s toys the direction of the Attorney General of Under the terms of the proposed in violation of section 1 of the Sherman the United States, brings this civil Consent Decree, Taylor will complete Act, 15 U.S.C. 1. The proposed Final action against the above-named Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9861 defendant and complains and alleges as and uninterrupted flow in interstate VII. follows: commerce of Playmobil products from Prayer for Relief Playmobil’s facilities in New Jersey to I. dealers throughout the United States. Wherefore, plaintiff prays: Jurisdiction and Venue The activities of the defendant and its 1. That the Court adjudge and decree that the defendant has combined and 1. This complaint is filed under co-conspirators, as hereinafter described, have been within the flow of, conspired to restrain interstate trade and section 4 of the Sherman Act, as commerce of Playmobil products in amended (15 U.S.C. 4), in order to and have substantially affected, interstate commerce. violation of section 1 of the Sherman prevent and restrain violations, as Act. hereinafter alleged, by the defendant of V. 2. That the defendant, its officers, section 1 of the Sherman Act (15 U.S.C. Violation Alleged directors, agents, employees and 1). This court has jurisdiction over this successors and all other persons acting matter pursuant to 28 U.S.C. 1331 and 11. Beginning at least as early as or claiming to act on their behalf be 1337. February, 1990, and continuing at least enjoined and restrained from, in any 2. Defendant transacts business and is through August, 1994, the exact dates manner, directly or indirectly, found in the District of Columbia. being unknown to the United States, the continuing, maintaining, or renewing II. defendant and its co-conspirators the combination and conspiracy herein engaged in a combination and before alleged, or from engaging in any Definitions conspiracy in unreasonable restraint of other combination, conspiracy, contract, 3. ‘‘Person’’ means any individual, interstate trade and commerce in agreement, understanding or concern of corporation, partnership, company, sole violation of section 1 of the Sherman action having a similar purpose or proprietorship, firm or other legal Act, as amended (15 U.S.C. 1). This effect, and from adopting or following entity. unlawful combination and conspiracy any practice, plan, program, or device 4. ‘‘Dealer’’ means any person not will continue or may be renewed unless having a similar purpose or effect. wholly owned by defendant who has at the relief prayed for herein is granted. 3. That plaintiff have such other relief any time purchased or acquired 12. The combination and conspiracy as the Court may deem just and proper. 4. That plaintiff recover the costs of Playmobil products for resale, excluding consisted of a continuing agreement, this action. any person who did not purchase or understanding, and concert of action acquire Playmobil products directly among the defendant and its co- Anne K. Bingaman, from Playmobil or its agents. conspirators to fix and maintain the Assistant Attorney General 5. ‘‘Playmobil product’’ means any resale price of Playmobil products at the Robert E. Litan, product sold or distributed by defendant amount set by the defendant, Playmobil. Mark C. Schechter, for resale in the United States. 13. In furtherance of this combination Rebecca P. Dick, III. and conspiracy, the defendant did the Bruce K. Yamanaga, following things, among others: Andrew S. Cowan, Defendant and Co-Conspirators (a) Established and communicated to Steven Semeraro, ] 6. Playmobil USA, Inc. (‘‘Playmobil’’) dealers minimum resale prices for D.C. Bar No. 419612, Attorneys, Department is made a defendant herein. Playmobil Playmobil products; of Justice Antitrust Division, Civil Task Force, is a corporation headquartered in the 1401 H Street, NW., Room 3700, Washington, (b) Threatened to terminate dealers for District of New Jersey, organized and DC. 20530, (202) 514–8368. selling or advertising Playmobil existing under the laws of the State of products at prices below defendant’s In the United States District Court for New Jersey. the District of Columbia 7. Various companies and individuals minimum resale prices; who are dealers, not made defendants in (c) Used threats of termination to United States of America, Plaintiff, v. this complaint, have been induced to secure dealers’ adherence to defendants’ Playmobil USA, Inc., Defendant. participate by and have participated minimum resale prices and to limit the Civil Action No. 95–0214 with the defendant in the offense duration of promotional sales by Stipulation dealers; charged herein and performed acts and It is stipulated by and between the made statements in furtherance of it. (d) Enforced adherence to minimum undersigned parties, by their respective resale prices at the behest of dealers in IV. attorneys, that: order to stop ‘‘price wars’’ among them; 1. The parties to this Stipulation Trade and Commerce and consent that a Final Judgment in the 8. Playmobil is a prominent seller of (e) Agreed with dealers on the retail form attached may be filed and entered specialty toys for children in the United prices for Playmobil products to be by the Court, upon any party’s or the States. Playmobil products are charged by the dealers. Court’s own motion, at any time after manufactured by Playmobil’s parent VI. compliance with the requirements of the company, Geobra Brandstatter GmbH & Antitrust Procedures and Penalties Act Co., KG., in Germany and sold and Effects (15 U.S.C. 16), without further notice to distributed in the United States by any party or other proceedings, 14. The aforesaid combination and Playmobil. provided that plaintiff has not conspiracy has had the following 9. Playmobil sells substantial withdrawn its consent, which it may do effects, among others: quantities of Playmobil products to at any time before entry of the proposed dealers throughout the United States, (a) Resale prices of children’s toys Final Judgment by serving notice on the which in turn resell Playmobil products have been fixed and maintained; and defendant and by filing that notice with to consumers. (b) Competition in the sale of the Court. 10. During the period covered by this children’s toys by dealers has been 2. If plaintiff withdraws its consent or complaint, there has been a continuous restrained, suppressed, and eliminated. the proposed Final Judgment is not 9862 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices entered pursuant to this Stipulation, granted against defendant under Section IV. this Stipulation shall be of no effect 1 of the Sherman Act (15 U.S.C. 1). Prohibited Conduct whatever and its making shall be II. without prejudice to any party in this or A. Defendant is hereby enjoined and any other proceedings. Definitions restrained from directly or indirectly For the plaintiff: entering into, adhering to, maintaining, As used in this Final Judgment: Anne K. Bingaman furthering, enforcing or claiming any A. ‘‘Cooperative advertising policy’’ right under any contract, agreement, Assistant Attorney General means any policy or program under understanding, plan or program with Robert E. Litan, which defendant provides a dealer with any dealer to fix, stabilize, or maintain Mark Schechter, any rebate, allowance, or reimbursement the resale prices at which defendant’s Rebecca P. Dick, that relates to that dealer’s advertising of products may be sold or offered for sale Bruce K. Yamanaga, Playmobil products. in the United States by any dealer. Andrew S. Cowan, B. ‘‘Dealer’’ means any person not B. Defendant is further enjoined and Attorneys, U.S. Department of Justice, wholly owned by defendant who has at restrained from (1) discussing, Antitrust Division, Civil Task Force, 1401 H any time purchased or acquired explaining, or encouraging adherence to Street, NW., Room 3700, Washington, DC. Playmobil products for resale, excluding defendant’s suggested resale prices with 20530, (202) 514–8368. any person who did not purchase or any dealer, (2) threatening or warning For the defendant: acquire Playmobil products directly any dealer that it may be terminated or Eugene J. Meigher, from Playmobil or its agents. otherwise subjected to any action by the Counsel for Playmobil, USA, Inc. C. ‘‘Discount’’ means to offer, sell or defendant for discounting, and (3) advertise any Playmobil product for Certificate of Service communicating to any dealer resale at a price below defendant’s information relating to any actual or I certify that, on this day January 31, suggested resale price. contemplated termination of any other 1995, I have caused to be served, by D. ‘‘Person’’ means any individual, messenger, a copy of the foregoing dealer for any reason related to corporation, partnership, company, sole discounting. Stipulation, Final Judgment and proprietorship, firm or other legal C. Defendant is further enjoined and Competitive Impact Statement on entity. restrained for a period of five (5) years counsel of record for Playmobil USA, E. ‘‘Playmobil product’’ means any from the date of entry of the final Inc. at the address below: product sold or distributed by defendant judgment from directly or indirectly Eugene Meigher, Arent, Fox 1050 for resale in the United States. Connecticut Ave NW., 5th Floor, announcing to the public or to any F. ‘‘Promotional event’’ means a sale present or potential dealer of its Washington, DC 20036 of offering of limited duration during Andrew S. Cowan products that defendant has or is which a dealer discounts a Playmobil adopting, promulgating, suggesting, In the United States District Court for product. announcing or establishing any resale the District of Columbia G. ‘‘Resale price’’ means any price, pricing policy for Playmobil products price floor, price ceiling, price range, or that: (1) Provides that defendant will United States of America, Plaintiff, v. any mark-up, formula or margin of Playmobil USA, Inc., Defendant. sell only to a dealer that prices at or profit relating to Playmobil products Civil Action No. 95–0214 above suggested resale prices; (2) sold by dealers. provides that defendant may or will Final Judgment H. ‘‘Suggested resale price’’ means terminate, or take any other action Plaintiff, United States of America, any resale price level, including those related to, a dealer for discounting; or having filed its complaint herein on related to everyday pricing or (3) relates to the duration or frequency lllll, and plaintiff and defendant, promotional pricing, that is suggested, of any dealer’s promotional events. Playmobil, USA, Inc., having consented endorsed, communicated, distributed or D. Defendant is further enjoined and to the entry of this Final Judgment determined by defendant. restrained for a period of five (5) years without trial or adjudication of any I. ‘‘Terminate’’ means to refuse to from the date of entry of the final issue of fact or law herein and without continue selling, either permanently or judgment from (1) representing that it the Final Judgment constituting any temporarily, any or all Playmobil will act on any complaint or evidence against or an admission by any products to a dealer. communication from a dealer that party with respect to any such issue; III. relates to any other dealer’s discounting, And whereas defendant has agreed to (2) discussing any such complaint or be bound by the provisions of this Final Applicability communication with the complaining Judgment pending its approval by the A. This Final Judgment applies to dealer, except that defendant may state Court; defendant and to each of its officers, that it does not accept dealer complaints Now, Therefore, before the taking of directors, agents, employees, or communications that relate to the any testimony and without trial or subsidiaries, successors, and assigns, pricing practices of other dealers, and adjudication of any issue of fact or law and to all other persons in active (3) terminating any dealer or taking any herein, and upon consent of the parties concert or participation with any of other action for reasons relating to that hereto, it is hereby ORDERED, adjudged them who shall have received actual dealer’s discounting. and decreed as follows: notice of this Final Judgment by E. Defendant is further enjoined and I. personal service or otherwise. restrained for a period of five (5) years B. Defendant shall require, as a from the date of entry of the final Jurisdiction condition of the sale of all or judgment from adopting, promulgating, This Court has jurisdiction of the substantially all of its assets or stock, suggesting, announcing or establishing subject matter of this action and of the that the acquiring party agree to be any cooperative advertising policy that party consenting hereto. The complaint bound by the provisions of this Final denies or reduces advertising rebates, states a claim upon which relief may be Judgment. allowances or reimbursements to a Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9863 dealer for any reason related to that Final Judgment, with examples of modify the activity so as to comply with dealer’s advertised prices. conduct prohibited by the Final this Final Judgment. F. Nothing in this Section IV shall Judgment and with instructions that VIII. prohibit defendant from (1) establishing each person designated in Section VI suggested resale prices and (A) and (B) shall report any known Plaintiff Access communicating these prices to dealers, violations of the Final Judgment to the A. For the purpose of determining or provided that such communications Antitrust Compliance Officer; securing compliance with this Final also state that these prices are only D. Arranging for an annual oral Judgment, and for no other purpose, suggested prices and that dealers are briefing to each person designated in duly authorized representatives of free to adopt any resale price that they Sections VI (A) or (B) on the meaning plaintiff shall, upon written request of choose, or (2) terminating any dealer for and requirements of this Final Judgment the Attorney General or the Assistant reasons unrelated to that dealer’s and the antitrust laws, accompanied by Attorney General in charge of the discountings. a written explanation of the type Antitrust Division, and on reasonable described in Section VI. (C); V. notice to the defendant, be permitted, E. Obtaining (1) from each person subject to any legally recognized Notification Provisions designated in Sections VI (A) or (B) privilege: Defendant is ordered and directed: certification that he or she has read, 1. Access during the defendant’s A. To send a written notice, in the understands and agrees to abide by the office hours to inspect and copy all form attached as Appendix A to this terms of this Final Judgment and is not records and documents in the Final Judgment, and a copy of this Final aware of any violation of the Final possession or under the control of Judgment, within sixty (60) days of the Judgment that has not been reported to defendant, which may have counsel entry of this Final Judgment, to each the Antitrust Compliance Officer; and present, relating to any matters dealer who purchased Playmobil (2) from each officer, director and contained in this Final Judgment; and products in 1993 or 1994. employee certification that he or she 2. To interview the defendant’s B. To send a written notice, in the understands that failure to comply with officers, employees and agents, who form attached as Appendix A to this this Final Judgment may result in may have counsel present, regarding Final Judgment, and a copy of this Final conviction for criminal contempt of any such matters. The interviews shall Judgment, to each dealer who purchases court. be subject to the defendant’s reasonable products from defendant within ten (10) F. Maintaining (1) a record of all convenience. years of entry of this Final Judgment certifications received pursuant to B. Upon the written request of the and who was not previously given such Section VI (E); (2) a file of all documents Attorney General or the Assistant notice. Such notice shall be sent within related to any alleged violation of this Attorney General in charge of the thirty (30) days after the first shipment Final Judgment; (3) a record of all Antitrust Division made to defendant at of Playmobil products to such dealer. communications related to any such its principal office, defendant shall violation, which shall identify the date VI. submit such written reports, under oath and place of the communication, the if requested, with respect to any of the Compliance Program persons involved, the subject matter of matters contained in this Final the communication, and the results of Defendant is ordered to establish and Judgment as may be requested, subject any related investigation; and (4) a list maintain an antitrust compliance to any legally recognized privilege. of all persons terminated as dealers, or program which shall include C. No information or documents threatened with termination, after the designating, within 30 days of entry of obtained by the means provided in this effective date of this Final Judgment and this Final Judgment, an Antitrust Section VIII shall be divulged by any all documents related to any such Compliance Officer with responsibility representative of the Department of termination or threatened termination. for implementing the antitrust Justice to any person other than a duly compliance program and achieving full VII. authorized representative of the compliance with this Final Judgment. Executive Branch of the United States, Certification The Antitrust Compliance Officer shall, except in the course of legal proceedings on a continuing basis, be responsible for A. Within 75 days of the entry of this to which the United States is a party, or the following: Final Judgment, defendant shall certify for the purpose of securing compliance A. Furnishing a copy of this Final to plaintiff whether the defendant has with this Final Judgment, or as Judgment within thirty (30) days of designated an Antitrust Compliance otherwise required by law. entry of the Final Judgment to each of Officer and has distributed the Final D. If at the time information or defendant’s officers and directors and Judgment in accordance with Section VI documents are furnished by defendant each of its employees, salespersons, (A) above. to plaintiff, defendant represents and sales representatives, or agents whose B. For ten years after the entry of this identifies in writing the material in any duties include supervisory or direct Final Judgment, on or before its such information or documents to responsibility for the sale or advertising anniversary date, the defendant shall which a claim of protection may be of Playmobil products in the United file with the plaintiff an annual asserted under Rule 26(c)(7) of the States, except for employees whose statement as to the fact and manner of Federal Rules of Civil Procedure, and functions are purely clerical or manual; its compliance with the provisions of defendant marks each pertinent page of B. Distributing in a timely manner a Sections V and VI. such material, ‘‘Subject to claim of copy of this Final Judgment to any C. If defendant’s Antitrust protection under Rule 26(c)(7) of the owner, officer, employee or agent who Compliance Officer learns of any Federal Rules of Civil Procedure,’’ then succeeds to a position described in violations of any of the terms and ten (10) days’ notice shall be given by Section VI (A); conditions contained in this Final plaintiff to defendant prior to divulging C. Providing each person designated Judgment, defendant shall immediately such material in any legal proceeding in Sections VI (A) or (B) with a written notify the plaintiff and forthwith take (other than a grand jury proceeding), so explanation in plain language of this appropriate action to terminate or that defendant shall have an 9864 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices opportunity to apply to this Court for Sincerely,lllllll renewing such activity or similar protection pursuant to Rule 26(c)(7) of John Thorpe, activities. the Federal Rules of Civil Procedure. President Playmobil USA, Inc. 11 E. Nicholas The United States and Playmobil have Court Dayton, NJ 08810 stipulated that the proposed Final IX. Judgment may be entered after In the United States District Court for Duration of Final Judgment compliance with the APPA, unless the the District of Columbia Except as otherwise provided United States withdraws its consent. hereinabove, this Final Judgment shall United States of America, Plaintiff v. The Court’s entry of the proposed Playmobil USA, Inc., Defendant. remain in effect until ten (10) years from Final Judgment will terminate the the date of entry. Case Number 1:95CV00214 action, except that the Court will retain Judge: James Robertson jurisdiction over the matter for possible X. Deck Type: Antitrust further proceedings to construe, modify Date Stamp: 01/31/95 Construction, Enforcement, or enforce the Judgment, or to punish Modification and Compliance Competitive Impact Statement violations of any of its provisions. Jurisdiction is retained by the Court The United States of America, II for the purpose of enabling any of the pursuant to section 2 of the Antitrust Description of Practices Giving Rise to parties to this Final Judgment to apply Procedures and Penalties Act (‘‘APPA’’), the Alleged Violation of the Antitrust to this Court at any time for such further 15 U.S.C. 16(b), submits this Laws orders or directions as may be necessary Competitive Impact Statement in or appropriate for the construction or connection with the proposed Final Playmobil, a New Jersey corporation, carrying out of this Final Judgment, for Judgment submitted for entry in this is a prominent seller of specialty toys the modification of any of its provisions, civil antitrust proceeding. for children in the United States, with annual sales at wholesale in excess of for its enforcement or compliance, and I for the punishment of any violation of $18 million. Playmobil imports its toys its provisions. Nature and Purpose of the Proceeding from Germany, where its parent company makes them. From New Jersey XI. On January 30, 1995, the United it distributes to retail toy stores in every States filed a civil antitrust complaint Public Interest state, and these stores in turn sell under section 4 of the Sherman Act, as Playmobil toys to consumers. Entry of this Final Judgment is in the amended, 15 U.S.C. 4, alleging that the Over the past several years, Playmobil public interest. defendant Playmobil USA, Inc. regularly published what it termed Dated: llll (‘‘Playmobil’’) engaged in a combination lllllllllllllllllllll ‘‘Suggested Retail Price Ranges’’ for all and conspiracy, in violation of section of its products. It also annually issued United States District Judge 1 of the Sherman Act, 15 U.S.C. 1, to fix letters to all of its dealers setting forth Appendix A the retail prices of Playmobil children’s a ‘‘Retailer Discount Policy.’’ The toys throughout the United States. The Dear Playmobil Dealer: Playmobil letters facially expressed a complaint alleges that, in furtherance of well-defined, unilateral, dealer- Since 1991, Playmobil USA has this conspiracy, Playmobil from maintained a Retailer Discount Policy that termination policy under United States provided for the termination of any February 1990 through August of 1994: versus Colgate & Co., 250 U.S. 300 Playmobil dealer that failed to adhere to (a) Established and communicated to (1919) that even included some certain Playmobil suggested price ranges. In dealers minimum resale prices for safeguards to ensure that Playmobil and January 1995, the Antitrust Division of the Playmobil toys; its dealers would not enter into resale United States Department of Justice filed a (b) Threatened to terminate dealers for price agreements. The stated policy civil suit that alleged that Playmobil enforced selling or advertising Playmobil toys at said, in effect, that Playmobil would, this policy in a manner that violated the prices below those minimum resale entirely on its own, monitor its retailers antitrust laws by reaching agreements with prices; some of its retailers about what their retail and automatically, without discussion, prices would be. Playmobil has agreed, (c) Through the threats of termination, refuse to sell to any dealer it determined without admitting any violation of the law secured dealers’ adherence to those was discounting beyond the prescribed and without being subject to any monetary minimum resale prices and limited the limits (emphasis supplied). In the penalties, to the entry of a civil Consent duration of promotional sales by letters, Playmobil also committed not to Order prohibiting certain pricing practices in dealers; further discuss the policy or anything the United States. (d) Enforced adherence to minimum related to it. I have enclosed a copy of the Order for resale prices at the behest of dealers in In practice, however, Playmobil your information. Under its terms, you as a order to stop price wars among them; ignored these restrictions: Playmobil Playmobil dealer are absolutely free to sell and Playmobil products at whatever resale price personnel repeatedly contacted and you choose. Furthermore, Playmobil may not (e) Agreed with dealers on the retail pressured dealers in over a dozen states attempt to influence your discounting of prices the dealers would charge for who reportedly were discounting below Playmobil products, influence the duration Playmobil toys. the policy’s ‘‘suggested’’ minimum or frequency of your promotional events, or The complaint also alleges that as a levels. Playmobil secured from a condition advertising allowances on your result of the combination and number of its dealers express adhering to Playmobil’s suggested resale conspiracy, prices of children’s toys agreements to follow Playmobil’s prices. have been fixed and maintained, and published retail prices. Playmobil often If you learn that Playmobil or its agents competition in the sales of children’s expressly threatened a dealer with have violated the terms of the Order at any toys has been restrained. time after the effective date of the Order, you termination in order to obtain its should provide this information to Playmobil The complaint alleges that the agreement. in writing. combination and conspiracy is illegal, Frequently the impetus for Should you have any questions concerning and accordingly requests that this Court Playmobil’s actions was pressure from this letter, please feel free to contact me. prohibit Playmobil from continuing or other dealers that did not want to face Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9865 price competition in the retail sales of dealer to fix, stabilize or maintain any Playmobil for the first five years of the Playmobil toys. Playmobil determined dealer’s prices for Playmobil products in decree from reestablishing its resale whether an accused dealer was in fact the United States. price policy in any form, even forms discounting beyond the ‘‘suggested’’ The law permits a manufacturer that would be legal if Playmobil had limits, and if it was, Playmobil unilaterally to announce and never engaged in the illegal conduct forcefully ‘‘discussed’’ its resale pricing unilaterally to implement a policy of alleged in the Complaint. Thus, Section policy with the offending dealer. terminating discounters. Colgate, supra. IV C bars Playmobil from announcing If, after such discussions, the dealer The manufacturer may not, however, policies to (1) sell only to non- did not agree to raise its prices, secure a dealer’s agreement on retail discounting dealers, (2) terminate or Playmobil responded with various price levels. United States v. Parke, hinder dealers for discounting, or (3) threats—additional stores in the Davis & Co., 362 U.S. 29 (1960). If a control the duration or frequency of a immediate area might begin carrying dealer discounts, the manufacturer must dealer’s discounting. Section IV D 3 Playmobil toys, Playmobil might choose either to continue to supply that further ensures that regardless of its improperly process orders, a variety of dealer, knowing of its discounting stated policies, Playmobil will not shipping problems could occur. In some practices, or to forego that retail outlet terminate or otherwise take actions instances, Playmobil refused to sell for its products in the future. against any dealer because of additional toys to a dealer until after In this case, the Complaint alleges discounting. Under the decree, the only that dealer agreed to adhere to that Playmobil reached illegal thing Playmobil may continue to do is Playmobil’s price ranges. agreements with its dealers in the to publish truly suggested retail prices, The volume of commerce affected by course of discussions about discount together with the clear statement that Playmobil’s illegal conduct is difficult pricing. Although discussions between a dealers are free to ignore the to estimate. Playmobil’s illegal conduct manufacturer and a dealer about resale suggestions. was concentrated in the more than one pricing do not always result in an When it is clear that a manufacturer’s dozen states where, at the urging of agreement about those prices, see suggested retail prices are informational retail dealers that wanted to prevent Monsanto Co. v. Spray-Rite Serv. Corp., only and strictly optional, they can price competition, it obtained illegal 465 U.S. 752 (1984), the evidence in this serve useful market functions without resale pricing agreements with potential case showed, and the Complaint alleges, adversely affecting competition. In such discounters. Thus while it is difficult to that Playmobil’s discussions clearly led an environment, dealers become fully estimate the total volume of commerce to, and in fact included, illegal aware of and accustomed to exercising affected by Playmobil’s violations, it agreements. Isaksen v. Vermont their pricing rights. clearly was substantial although Castings, 825 F.2d 1158, 1164 (7th Cir. Since the problem with Playmobil’s significantly less than the entire $35 1987), cert. denied, 486 U.S. 1005 policy lay in the implementation of the million in annual, nationwide, retail (1988). To avoid a repetition of such policy rather than in the policy itself, sales of Playmobil toys. episodes, Section IV B bars Playmobil the prohibition on adopting such a Playmobil, by using the devices from discussing, explaining, or policy extends only for five years. described, was usually successful in encouraging dealers to adhere to Similarly, since Playmobil never inducing dealers to raise their prices. suggested prices, threatening to improperly terminated any dealers, the Indeed, the power of these actions was terminate a dealer for discounting, or prohibition on terminations also such that Playmobil never had to discussing a dealer’s termination with extends only for five years. Playmobil permanently sever its relationship with another dealer. This prohibition will thereafter regain its Colgate right a dealer because of that dealer’s addresses the central offense in this case unilaterally to announce a resale pricing continued discounting. Thus, the result and extends for the entire ten-year life policy and unilaterally to terminate of Playmobil’s activities was to fix, raise of the decree. non-complying dealers. Throughout the The proposed Final Judgment not period, Playmobil will be able to and stabilize the prices at which toy only bars Playmobil’s unlawful disseminate its suggested retail prices, retailers sold Playmobil products. The practices, but also contains additional but it must make clear that actual retail courts have routinely found conduct provisions that are remedial in nature, sales prices will be set entirely at its such as Playmobil’s here to be a per se intended to restore competitive dealers’ discretion. violation of the prohibition on conditions in retail toy markets and in Subsections 1 and 2 of Section IV D agreements in restraint of trade under dealer relationships, both of which have of the Final Judgment also prohibit section 1 of the Sherman Act. been distorted by Playmobil’s conduct Playmobil from accepting dealer III from 1990 through August of 1994, as complaints about other dealers’ pricing. set forth in the Complaint. These In some cases, Playmobil was acting in Explanation of the Proposed Final provisions bar some activities that are response to dealers’ complaints when it Judgment not, in and of themselves, illegal, but pressured other dealers to agree to The parties have stipulated that the which could nevertheless serve the charge higher retail prices. The Court may enter the proposed Final same purpose as Playmobil’s outright complaints about discounting were the Judgment at any time after compliance agreements to fix resale prices— proximate cause of much of the illegal with the APPA. The proposed Final preventing Playmobil dealers from conduct alleged in the Complaint. Judgment states that it shall not selling or advertising at discount prices. Although a manufacturer’s merely constitute an admission by either party To establish a new pricing regime to listening to a dealer’s complaint about with respect to any issue of fact or law. replace the former illegally enforced another’s pricing does not necessarily The proposed Final Judgment enjoins regime, and to encourage retailers of violate the law, Business Electronics any continuation or renewal, directly or Playmobil toys that previously could Corp. v. Sharp Electronics Corp., 485 indirectly, of the type of combination or not offer Playmobil products at discount U.S. 717 (1988), the evidence here conspiracy alleged in the Complaint. prices, because of Playmobil’s illegal showed that the dealer complaints led Specifically, Section IV A prohibits conduct, to exercise their ability to directly to Playmobil’s violations. Playmobil from entering into any discount if they so wish, Sections IV C Accordingly, in order to establish a agreement or understanding with any and D of the Final Judgment prohibit period of time during which Playmobil’s 9866 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices and its dealers’ conduct can become APPA conditions entry of the proposed jurisdiction over this matter for the clearly legal, Playmobil has agreed not Final Judment upon a determination by purpose of enabling either of the parties even to accept such communications the Court that the proposed Final to apply to the Court for such further from its dealers for five years. Judgment is in the public interest. orders or directions as may be necessary Section IV E of the Final Judgment The Government believes that the or appropriate for the construction, prohibits Playmobil from establishing a proposed Final Judgment is fully implementation, modification, or cooperative advertising program that adequate to prevent the continuation or enforcement of the Judgment, or for the conditions rebates in any way upon a recurrence of the violation of section 1 punishment of any violations of the dealer’s adherence to certain advertising of the Sherman Act alleged in the Judgment. price levels. Playmobil did not have a Complaint, and that disposition of this cooperative advertising program, but its proceeding without further litigation is VI illegal price agreements with dealers appropriate and in the public interest. Alternatives to the Proposed Final were often triggered by advertising. In Judgment order to avoid any discussions at all IV with dealers on the sensitive issue of Remedies Available to Potential Private The only alternative to the proposed retail pricing, Playmobil has also agreed Litigants Final Judgment considered by the Government was a full trial on the not to undertake a cooperative Section 4 of the Clayton Act, 15 advertising program during the first five merits and on relief. Such litigation U.S.C. 15, provides that any person who would involve substantial cost to the years of the decree. This will provide a has been injured as a result of conduct period of time during which market United States and is not warranted, prohibited by the antitrust laws may because the proposed Final Judgment conditions can become more bring suit in federal court to recover competitive, and Playmobil and its provides appropriate relief against the three times the damages the person has violations alleged in the Complaint. dealers can become more accustomed to suffered, as well as costs and reasonable remaining within legal parameters. attorney fees. Entry of the proposed VII Section V of the proposed Final Final Judgment will neither impair nor Judgment is designed to ensure that Determinative Materials and Documents assist the bringing of any private Playmobil’s dealers are aware of the No particular materials or documents limitations the Final Judgment imposes antitrust damage action. Under the provisions of section 5(a) of the Clayton were determinative in formulating the on Playmobil. Section V requires proposed Final Judgment. Playmobil to send notices and copies of Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in Consequently, the Government has not the Judgment to each dealer who attached any such materials or purchased Playmobil products from the any subsequent private lawsuit that may be brought against the defendant. documents to the proposed Final defendant in 1993 or 1994. In addition, Judgment. Playmobil must send notices and copies V of the Judgment to every other dealer to Dated: which it sells Playmobil products Procedures Available for Modification of Respectfully submitted, within ten years of the date of the the Proposed Final Judgment Bruce K. Yamanaga, Judgment’s entry. The United States and the defendant Andrew S. Cowan, Sections VI and VII require Playmobil have stipulated that the proposed Final Attorneys, U.S. Department of Justice, to set up an antitrust compliance Judgment may be entered by the Court Antitrust Division, 1401 H Street NW., Room program and designate an antitrust after compliance with the provisions of 3700, Washington, DC 20530, (202) 514–8368. compliance officer. Under the program, the APPA, provided that the United [FR Doc. 95–4283 Filed 2–21–95; 8:45 am] Playmobil is required to furnish a copy States has not withdrawn its consent. BILLING CODE 4410±01±M of the Judgment and a less formal The APPA provides a period of at written explanation of it to each of its least 60 days preceding the effective officers and directors and each of its date of the proposed Final Judgment DEPARTMENT OF LABOR non-clerical employees, representatives, within which any person may submit to or agents responsible for the sale or the United States written comments Mine Safety and Health Administration; advertising of Playmobil products in the regarding the proposed Final Judgment. Petitions for Modification United States. Any person who wants to comment In addition, the proposed Final should do so within 60 days of the date The following parties have filed Judgment provides methods for of publication of this Competitive petitions to modify the application of determining and securing Playmobil’s Impact Statement in the Federal mandatory safety standards under compliance with its terms. Section VIII Register. The United States will section 101(c) of the Federal Mine provides that, upon request of the evaluate the comments, determine Safety and Health Act of 1977. Department of Justice, Playmobil shall whether it should withdraw its consent, 1. Serendipity Mining, Inc. submit written reports, under oath, with and respond to the comments. The respect to any of the matters contained comments and the response of the [Docket No. M–95–01–C] in the Judgment. Additionally, the United States will be filed with the Serendipity Mining, Inc., P.O. Box Department of Justice is permitted to Court and published in the Federal 1588, Barbourville, Kentucky 40906 has inspect and copy all books and records, Register. filed a petition to modify the and to interview officers, directors, Written comments should be application of 30 CFR 75.342 (methane employees and agents, of Playmobil. submitted to: Rebecca P. Dick, Chief, monitors) to its No. 4 Mine (I.D. No. 15– Section IX makes the Judgment Civil Task Force I, U.S. Department of 17568) located in Whitley County, effective for ten years from the date of Justice, Antitrust Division, 1401 H Kentucky. The petitioner proposes to its entry. Street NW., Room 3700, Washington, monitor continuously with a hand-held Section XI of the proposed Final DC 20530. methane and oxygen detector instead of Judgment states that entry of the Under Section X of the proposed using a methane monitoring system on Judgment is in the public interest. The Judgment, the Court will retain permissible three-wheel tractors with Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9867 drag bottom buckets. The petitioner 17938 has filed a petition to modify the (landings for inclined ladderways) to its asserts that the proposed alternative application of 30 CFR 75.1400 (hoisting Limestone Mine (I.D. No. 25–00554) method would provide at least the same equipment; general) to its Buck Mt. located in Cass County, Nebraska. The measure of protection as would the Slope (I.D. No. 36–08498) located in petitioner proposes to have two portals mandatory standard. Schuylkill County, Pennsylvania. at the mine to serve as the primary and Because of steep, frequently changing secondary escapeways. The petitioner 2. Windsor Coal Company. pitch and numerous curves and proposes to have a vertical vent shaft 36 [Docket No. M–95–02–C] knuckles in the main haulage slope, the inches in diameter and 125 feet tall as Windsor Coal Company, P.O. Box 39, petitioner proposes to use the gunboat an auxiliary escapeway for a extra safety West Liberty, West Virginia 26074 has without safety catches in transporting measure in case the primary and filed a petition to modify the persons. As an alternative, when using secondary portals become blocked; and application of 30 CFR 75.364(b)(1) and the gunboat to transport persons, the as an additional escapeway, the (2) (weekly examination) to its Windsor petitioner proposes to use hoisting rope petitioner proposes to install a ladder Mine (I.D. No. 46–01286) located in with a safety factor at least 3 times with rungs 8 inches from the wall to the Brooke County, West Virginia. Due to greater than required and secondary center of the rung and with a 15 inch deteriorating roof and rib conditions in safety connections which are securely x 10 inch step off point every 20 feet. the left side return air course of the East fastened around the gunboat and to the The petitioner asserts that the proposed Mains from the 0+00 to 66+00 for a hoisting rope above the main alternative method would provide at distance of approximately 6,600 feet, connection device. The petitioner least the same measure of protection as traveling or restoration of the affected asserts that the proposed alternative would the mandatory standard. area would be unsafe. The petitioner method would provide at least the same 8. Aluminum Company of America proposes to examine the area on a measure of protection as would the weekly basis by establishing check mandatory standard. [Docket No. M–95–02–M] Aluminum Company of America, points G—No. 1 entry at approximately 5. Consolidation Coal Company. 0+50, and H—No. 1 entry at State Highway 35, Point Comfort, Texas approximately 66+00; to examine the 1 [Docket No. M–94–05–C] 77978 has filed a petition to modify the North bleeder seal, 1 North seals, East Consolidation Coal Company, Consol application of 30 CFR 56.9300 (berms or Main seals, and 2 North seals (22 seals Plaza, 1800 Washington Road, guardrails) to its Bayer Alumina Plant total); to have a certified person test for Pittsburgh, Pennsylvania 15241 has (I.D. No. 41–00320) located in Calhoun methane and the quantity of air at all filed a petition to modify the County, Texas. The petitioner requests a check points on a weekly basis and application of 30 CFR 75.1002 (location modification of the mandatory standard record the results in a book kept on the of trolley wires and trolley feeder wires, to allow continued use of its already surface and made available for high-voltage cables and transformers) to established methods of compliance of inspection by interested persons; to its Buchanan Mine (I.D. No. 44–04856) having signs posted at the entrances to install stoppings at the equalizing located in Buchanan County, Virginia. the impoundment area stating that the overcasts at approximately 23+00 and The petitioner proposes to use high- roadways are not bermed; delineators at 65+00 to prevent the mixing of right voltage cables (4,160 volts) in by the last 25 feet intervals along the perimeter of side and left side returns; and to install open crosscut. The petitioner states that the elevated roadways; the maximum a stopping at approximately 0+50 in the application of the mandatory standard speed limit posted at 15 mph on the No. 2 entry to direct all air to check would result in a diminution of safety elevated roadways; road surfaces well point ‘‘G’’. The petitioner asserts that to the miners. In addition, the petitioner maintained with necessary repairs the proposed alternative method would asserts that the proposed alternative following periods of inclement weather. The petitioner has a locked, remotely provide at least the same measure of method would provide at least the same operated electric gate at the main protection as would the mandatory measure of protection as would the entrance to the impoundment area with standard. mandatory standard. 24 hour security, 7 days a week via 3. Rosebud Mining Company. 6. C. S. & S. Coal Corporation. closed circuit camera and TV monitor. [Docket No. M–95–03–C] [Docket No. M–95–06–C] Access to the gate is by permission only via telephones which are located Rosebud Mining Company, Box 324 C. S. & S. Coal Corporation, P.O. Box outside the gate, or by two-way radios B, R.D. 2, Parker, Pennsylvania 16049 1234, Grundy, Virginia 24614 has filed for maintenance personnel. The has filed a petition to modify the a petition to modify the application of petitioner states that application of the application of 30 CFR 75.333 30 CFR 75.1710 (canopies or cabs; mandatory standard would result in a (ventilation controls) to its Rosebud No. electric face equipment) to its No. 7 diminution of safety to the miners. In 3 Mine (I.D. No. 36–07843) located in Mine (I.D. No. 44–06762) located in addition, the petitioner asserts that the Armstrong County, Pennsylvania. The Russell County, Virginia. The petitioner proposed alternative method would petitioner proposes to use temporary proposes to operate electric mobile provide at least the same measure of ventilation controls on the intake side in equipment without canopies in seam protection as would the mandatory the room necking procedure for rooms heights up to 48 inches. The petitioner standard. to be developed less than 600 feet. The asserts that the proposed alternative petitioner asserts that the proposed method would not result in a Request for Comments alternative method would provide at diminution of safety to the miners. Persons interested in these petitions least the same measure of protection as 7. Texasgulf, Inc. may furnish written comments. These would the mandatory standard. comments must be filed with the Office [Docket No. M–95–01–M] 4. R. & R. Anthracite Coal Company. of Standards, Regulations and Texasgulf, Inc., P.O. Box 171, Variances, Mine Safety and Health [Docket No. M–95–04–C] Weeping Water, Nebraska 68463 has Administration, Room 627, 4015 Wilson R. & R. Anthracite Coal Company, R. filed a petition to modify the Boulevard, Arlington, Virginia 22203. R. 2, Box 21 B, Hegins, Pennsylvania application of 30 CFR 57.11041 All comments must be postmarked or 9868 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices received in that office on or before resolution within its administrative a portion that may be closed pursuant March 24, 1995. Copies of these programs. These methods, which to 5 U.S.C. 552b(c) (2) and (6) to discuss petitions are available for inspection at include settlement negotiations, organizational and personnel matters that address. conciliation, facilitation, mediation, that relate solely to internal personnel Dated: February 10, 1995. fact-finding, mini-trials and arbitration, rules and practices of ACRS, and Patricia W. Silvey, provide alternatives to traditional matters the release of which would constitute a clearly unwarranted Director, Office of Standards, Regulations and adversarial proceedings. ADR Variances. techniques should be implemented in a invasion of personal privacy. The agenda for the subject meeting [FR Doc. 95–4228 Filed 2–21–95; 8:45 am] way that will reduce costs and delays associated with adjudication, improve shall be as follows: Wednesday, March BILLING CODE 4510±43±P employee and constituent relations, and 8, 1995—9:00 a.m.–12 noon. improve the efficiency and effectiveness The Subcommittee will discuss of programs. proposed ACRS activities and related NATIONAL SCIENCE FOUNDATION An ADR Task Force reviewed the matters. Also, it will discuss status of types of disputes arising at NSF and the the appointment of members to the Use of Alternative Means of Dispute ACRS. The purpose of this meeting is to Resolution; Policy Statement Foundation’s procedures for resolving them. The Task Force concluded that gather information, analyze relevant AGENCY: National Science Foundation. existing informal mechanisms for issues and facts, and to formulate ACTION: Notice of policy statement. resolving disputes between NSF and proposed positions and actions, as grantees are effective and consistent appropriate, for deliberation by the full SUMMARY: The National Science with ADR processes. However, the Task Committee. Foundation (the ‘‘Foundation’’) has Force did identify one type of dispute Oral statements may be presented by developed a policy to address the use of which could benefit from the use of members of the public with the alternative means of dispute resolution ADR techniques—employee concurrence of the Subcommittee (ADR) within its administrative discrimination complaints related to Chairman; written statements will be programs, as required by the accepted and made available to the equal employment opportunity. As a Administrative Dispute Resolution Act, Committee. Electronic recordings will result, NSF will implement a voluntary Public Law No. 101–552. be permitted only during those portions mediation program for resolution of of the meeting that are open to the EFFECTIVE DATE: This policy statement is employment discrimination complaints public, and questions may be asked only effective on February 22, 1995. Because filed by NSF employees, and will either by members of the Subcommittee, its it is a general statement of policy and train Foundation employees to mediate consultants, and staff. Persons desiring addresses internal agency procedures such disputes or rely on an inter- to make oral statements should notify and practices, no prior notice or governmental pool of mediators. The the cognizant ACRS staff person named opportunity for public comment is Foundation will make every effort to below five days prior to the meeting, if required. ensure the confidentiality of FOR FURTHER INFORMATION CONTACT: possible, so that appropriate information provided to all participants arrangements can be made. Lawrence Rudolph, Acting General in an ADR proceeding, consistent with Counsel and National Science Further information regarding topics applicable laws and regulations. to be discussed, the scheduling of Foundation Dispute Resolution As circumstances change or new Specialist, 4201 Wilson Boulevard, sessions open to the public, whether the types of disputes arise, the Foundation meeting has been cancelled or Room 1265, Arlington, Virginia 22230, will consider further use of ADR (703) 306–1060. rescheduled, the Chairman’s ruling on techniques. The Foundation encourages requests for the opportunity to present SUPPLEMENTARY INFORMATION: On senior management officials to discuss oral statements, and the time allotted November 15, 1990, Congress enacted other situations where ADR may be therefor can be obtained by contacting the Administrative Dispute Resolution appropriate with NSF’s Deputy General the cognizant ACRS staff person, Dr. Act (Public Law No. 101–552). The Act Counsel, who serves as the Foundation’s John T. Larkins (telephone: 301/415– requires agencies to designate a senior Dispute Resolution Specialist. 7360) between 7:30 a.m. and 4:15 p.m. official as its dispute resolution (EST). Persons planning to attend this specialist and to adopt a policy Dated: February 14, 1995. addressing use of ADR in connection Lawrence Rudolph, meeting are urged to contact the above with an agency’s administrative Acting General Counsel and Agency Dispute named individual on the working day programs. Although the Act authorizes Resolution Specialist. prior to the meeting to be advised of any and encourages agencies to use ADR [FR Doc. 95–4221 Filed 2–21–95; 8:45 am] changes in schedule, etc., that may have occurred. techniques as an alternative to BILLING CODE 7555±01±P traditional dispute resolution Dated: February 13, 1995. mechanisms, use of ADR is subject to Sam Duraiswamy, agency discretion. NUCLEAR REGULATORY Chief, Nuclear Reactors Branch. Paperwork Reduction Act Statement COMMISSION [FR Doc. 95–4262 Filed 2–21–95; 8:45 am] BILLING CODE 7590±01±M This policy statement contains no Advisory Committee on Reactor information collection requirements and Safeguards Subcommittee Meeting on therefore is not subject to the Planning and Procedures; Meeting Regulatory Guide; Extension of requirements of the Paperwork Comment Period Reduction Act of 1980 (44 U.S.C. 3501 The ACRS Subcommittee on Planning et. seq.) and Procedures will hold a meeting on The Nuclear Regulatory Commission March 8, 1995, Room T–2B1, 11545 has extended the public comment Foundation Policy on ADR Rockville Pike, Rockville, Maryland. period on Draft Regulatory Guide DG– The Foundation encourages the use of The entire meeting will be open to 0005, ‘‘Applications for Licenses of alternative methods of dispute public attendance, with the exception of Broad Scope,’’ until March 31, 1995, to Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9869 give interested parties adequate time to If using a method other than the toll [Docket No. 030±31252; License No. 35± prepare their comments on this draft free number to contact FedWorld, the 26996±01; EA 95±018] guide. DG–0005 is the Second Proposed NRC subsystem will be accessed from Blackhawk Engineering, Inc., and Revision 2 to Regulatory Guide 10.5, the main FedWorld menu by selecting Maria Hollingsworth (dba Blackhawk which was issued in October 1994 the ‘‘F—Regulatory, Government Engineering, Inc.) Tulsa, OK; Order to (noticed at 10 CFR 55141). This guide is Administration and State Systems,’’ Cease and Desist Use and Possession being revised to provide guidance on then selecting ‘‘A—Regulatory of Regulated Byproduct Material the type and extent of information Information Mall.’’ At that point, a needed by the NRC staff to evaluate menu will be displayed that has an I applications for a specific license of option ‘‘A—U.S. Nuclear Regulatory Blackhawk Engineering, Inc. broad scope for byproduct material. Commission’’ that will take you to the (Blackhawk) was issued Byproduct Comments received after March 31, NRC Online main menu. You can also Material License 35–26996–01 by the 1995, will be considered if it is practical go directly to the NRC Online area by Nuclear Regulatory Commission (NRC to do so, but the NRC can assure typing ‘‘/go nrc’’ at a FedWorld or Commission) on August 22, 1989. consideration only for comments command line. If you access NRC from The license authorized the possession received by this date. Comments should and use of cesium–137 and americium– be accompanied by supporting data. FedWorld’s main menu, you may return to FedWorld by selecting the ‘‘Return to 241 in gauges, in accordance with the Written comments may be submitted to conditions specified therein. The the Rules Review and Directives Branch, FedWorld’’ option from the NRC Online Main Menu. However, if you access license expired on August 31, 1994, and Division of Freedom of Information and the licensee did not submit a renewal Publications Services, Office of NRC at FedWorld by using NRC’s toll- free number, you will have full access application 30 days prior to the Administration, U.S. Nuclear Regulatory expiration date, as required by 10 CFR Commission, Washington, DC 20555. to all NRC systems but you will not have access to the main FedWorld 30.37. Furthermore, the NRC has Comments may be submitted determined that Blackhawk system. For more information on NRC electronically, in either ASCII text or Engineering, Inc., has not been bulletin boards call Mr. Arthur Davis, Wordperfect format (version 5.1 or recognized as a corporation in the state Systems Integration and Development later), by calling the NRC Electronic of Oklahoma since February 20, 1987, Bulletin Board on FedWorld. The Branch, U.S. Nuclear Regulatory when the State of Oklahoma suspended bulletin board may be accessed using a Commission, Washington, DC 20555, Blackhawk’s corporate status. Thus, personal computer, a modem, and one telephone (301) 415–5780; e-mail although Blackhawk has been doing of the commonly available [email protected]. business as Blackhawk Engineering, communications software packages, or Inc., it was not a legal corporation directly via Internet. Background Regulatory guides are available for recognized by the State of Oklahoma or documents on the rulemaking are also inspection at the Commission’s Public the NRC. The president of Blackhawk is available for downloading and viewing Maria Hollingsworth. on the bulletin board. Document Room, 2120 L Street NW., If using a personal computer and Washington, DC. Requests for single II copies of draft guides (which may be modem, the NRC subsystem on On August 30, 1994, an NRC Region reproduced) or for placement on an FedWorld can be accessed directly by IV employee placed a phone call to automatic distribution list for single dialing the toll free number: 1–800– Maria Hollingsworth, the president of 303–9672. copies of future draft guides in specific Blackhawk, to discuss the August 31, Communication software parameters divisions should be made in writing to 1994 license expiration. Records of that should be set as follows: parity to none, the U.S. Nuclear Regulatory phone call indicate that Ms. data bits to 8, and stop bits to 1 (N,8,1). Commission, Washington, DC 20555, Hollingsworth said she had received a Using ANSI or VT–100 terminal Attention: Director, Distribution and renewal package from NRC and that she emulation, the NRC NUREGs and Mail Services Section. Telephone planned to send a renewal application RegGuides for Comment subsystem can requests cannot be accommodated. within 30 days. No renewal application then be accessed by selecting the ‘‘Rules Regulatory guides are not copyrighted, was received. Ms. Hollingsworth has Menu’’ option from the ‘‘NRC Main and Commission approval is not stated in a recent interview with an NRC Menu.’’ For further information about required to reproduce them. investigator on January 12, 1995, that options available for NRC at FedWorld, she had apparently confused payment of consult the ‘‘Help/Information Center’’ (5 U.S.C. 552(a)) an NRC annual fee with license renewal from the ‘‘NRC Main Menu.’’ Users will at the time of the August 1994 call, and find the ‘‘FedWorld Online User’s Dated at Rockville, Md, this 14th day of stated ‘‘I had no idea I had to submit Guides’’ particularly helpful. Many NRC February 1995. another application.’’ subsystems and databases also have a On November 3, 1994, an NRC Region ‘‘Help/Information Center’’ option that IV employee again called Ms. is tailored to the particular subsystem. For the Nuclear Regulatory Commission. Hollingsworth and discussed the fact The NRC subsystem FedWorld can that Blackhawk’s NRC license had also be accessed by a direct dial phone Bill M. Morris, expired and, therefore, in accordance number for the main FedWorld BBS: with 10 CFR 30.36(c)(1)(i), Blackhawk 703–321–8020; Telnet via Internet: Director, Division of Regulatory Applications, was no longer authorized to use NRC- fedworld.gov (192.239.93.3); File Office of Nuclear Regulatory Research. regulated gauges listed on the license, Transfer Protocol (FTP) via Internet: i.e., gauges containing sealed sources of ftp.fedworld.gov (192.239.92.205); and radioactive material. During this call, World Wide Web using: http:// [FR Doc. 95–4267 Filed 2–21–95; 8:45 am] the NRC instructed Ms. Hollingsworth www.fedworld.gov (this is the Uniform to secure these gauges and maintain Resource Locator (URL)). BILLING CODE 7590±01±M them in storage, and confirmed her 9870 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices commitment to submit a new license Consequently, I lack the requisite performed in accordance with 10 CFR application. These commitments were reasonable assurance that the health and 30.36(c)(1)(v); and (5) a copy of the confirmed by NRC in a November 8, safety of the public will be protected. certification from the authorized 1994 Confirmatory Action Letter (CAL) Therefore, the public health, safety, and recipient that the source has been to Ms. Hollingsworth. The CAL interest require that Blackhawk received. described the commitments that she had Engineering, Inc. and Maria Copies of the response to this Order made, including her commitment to Hollingsworth, doing business as shall be sent to the Regional ‘‘Ensure that licensed material is not Blackhawk Engineering, Inc., be Administrator, Region IV, 611 Ryan used until this matter is resolved and a required to cease and desist Plaza Drive, Suite 400, Arlington, Texas specific license authorizing possession unauthorized possession of regulated 76011, and to the Assistant General and use of byproduct material is issued byproduct material and to provide Counsel for Hearings and Enforcement, from this office.’’ Her receipt of the CAL certification to the NRC that all U.S. Nuclear Regulatory Commission, was confirmed on November 23, 1994, regulated byproduct material has been Washington, D.C. 20555. during another telephone call from NRC transferred to authorized recipients. After reviewing the response, the NRC Region IV. On December 19, 1994, NRC IV will determine whether further action is Region IV conducted an inspection of necessary to ensure compliance with Blackhawk. Accordingly, pursuant to sections 81, NRC requirements. 161b, 161c, 161i, and 161o of the In January 1995, the NRC Office of Atomic Energy Act of 1954, as amended, Dated at Rockville, Maryland this 14th day Investigations began an investigation and the Commission’s regulations in 10 of February 1995. based on concerns about the accuracy of CFR parts 20 and 30, it is hereby For the Nuclear Regulatory Commission. Ms. Hollingsworth’s statements to NRC ordered that Blackhawk Engineering, Hugh L. Thompson, Jr., personnel during the December 19, 1994 Inc. and Maria Hollingsworth, doing Deputy Executive Director for Nuclear inspection. Ms. Hollingsworth was business as Blackhawk Engineering, Materials Safety, Safeguards, and Operations interviewed by an NRC investigator and, Inc., shall: Support. in a signed, sworn statement on January A. Immediately cease and desist from [FR Doc. 95–4269 Filed 2–21–95; 8:45 am] 12, 1995, she admitted that she any further use of byproduct material BILLING CODE 7590±01±M understood in November 1994 that she now in their possession, with the should no longer use the gauges; exception that sealed source(s) admitted that she had used gauges containing cesium–137 or americium- [Docket No. 50±029] containing byproduct material up until 241 shall be tested for leakage by a December 22, 1994, to complete a person authorized to perform the test Yankee Atomic Electric Co.; Yankee construction job; and admitted that she prior to the transfer of the source(s) to Nuclear Power Station; Order had not been truthful when she told the another person or entity if a leak test has Approving the Decommissioning Plan NRC inspector, during the December 19, not been performed within the last six and Authorizing Decommissioning of 1994 inspection, that she had not used months prior to transfer. Facility any gauges since 1992. She stated ‘‘I B. Maintain safe control over the I needed to get the job done and I thought byproduct material, as required by 10 by not telling * * * the truth I could go CFR part 20, by keeping the material in The Yankee Atomic Electric Company ahead and get the job done.’’ locked storage and not allowing any (YAEC, the licensee) is the holder of III person access to the material, except for Facility Operating License No. DPR–3 purposes of assuring the material’s issued by the U.S. Nuclear Regulatory Based on the above, Maria continued safe storage, until the Commission (NRC, the Commission) Hollingsworth, doing business as material is transferred to a person formerly the Atomic Energy Blackhawk Engineering, Inc., has authorized to receive and possess the Commission, pursuant to 10 CFR Part 50 willfully violated NRC requirements by material in accordance with the on July 9, 1960. The license was deliberately using NRC-regulated provisions of this Order and the amended on August 5, 1992, to remove material in violation of 10 CFR Commission’s regulations. the authority of the licensee to operate 30.36(c)(1)(i), and by deliberately C. Within 30 days of the date of this the Yankee Nuclear Power Station making false statements to NRC Order, transfer all byproduct material to (YNPS, the plant). The facility is located personnel in violation of 10 CFR 30.9. a person authorized to receive and on the licensee site in the Town of These deliberate violations also possess it. Rowe, Franklin County, Commonwealth constitute a violation of 10 CFR 30.10, D. At least two working days prior to of Massachusetts. which prohibits deliberate misconduct. the transfer of the byproduct material, II The NRC must be able to rely on the notify Ms. Linda Howell, Region IV, by Licensee and its employees to comply telephone (817–860–8213) so that the On October 1, 1991, the plant was with NRC requirements, including the NRC may, if it elects, observe the shut down for an evaluation of potential requirement to provide information that transfer of the material to the authorized reactor vessel integrity problems. In is complete and accurate in all material recipient. February 1992, all fuel was removed respects. By her actions, Ms. E. Within seven days following from the reactor vessel to the Spent Fuel Hollingsworth has demonstrated that completion of the transfer, provide to Pit. By letter dated February 27, 1992, she is either unwilling or unable to the Regional Administrator, Region IV, YAEC informed the NRC that the plant comply with Commission requirements in writing, under oath or affirmation: (1) was permanently shut down and that and cannot be trusted to provide Confirmation, on NRC Form 314, that decommissioning would commence. complete and accurate information to the byproduct material has been This action initiated the two year clock the Commission. Furthermore, Ms. transferred; (2) the last date that the in 10 CFR 50.82 that requires submittal Hollingsworth is currently in possession byproduct material was used; (3) a copy of a decommissioning plant within that of NRC-regulated byproduct material of the leak test performed prior to time interval. YAEC submitted the without a valid NRC license. transfer; (4) a copy of the survey Decommissioning Plan (Plan) on Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9871 December 20, 1993 which included an IV 1995, the Commission and the North Environmental Report. Accordingly, pursuant to Sections American Securities Administrators On March 29, 1994, in accord with 10 103, 161b, 161i, and 161o, of the Atomic Association, Inc. today announced a CFR 50.82(e), a Notice of Receipt of Energy Act of 1954 (as amended), 10 request for comments on the proposed Decommissioning Plan and CFR 50.82, the YNPS Decommissioning agenda for the conference. This meeting Environmental Report and Opportunity Plan is approved and decommissioning is intended to carry out the policies and for Public Comments was published in of the plant is authorized subject to the purposes of section 19(c) of the the Federal Register, (59 FR 14689). Due following condition: Securities Act of 1933, adopted as part to public interest in the of the Small Business Investment With the respect to changes to the facility Incentive Act of 1980, to increase decommissioning process, the Federal or procedures described in the updated FSAR Register Notice announced a local or changes to the Decommissioning plan, and uniformity in matters concerning state meeting to provide the public an the conduct of tests and experiments not and federal regulation of securities, to opportunity to make comments on the described in the FSAR, the provisions of 10 maximize the effectiveness of securities Plan. The meeting, an informal public CFR 50.59 shall apply. regulation in promoting investor hearing, was held in August 1994 in Pursuant to 10 CFR 51.21, 51.30, and protection, and to reduce burdens on Franklin County and was transcribed. 51.35, the Commission has prepared an capital formation through increased The public comments have been Environmental Assessment and Finding cooperation between the Commission addressed in Appendix A to the of No Significant Impact for the and the state securities regulatory attached Safety Evaluation. In addition, proposed action. Based on that authorities. the staff held a second meeting, the day assessment, the Commission has DATES: The conference will be held on after the meeting on the Plan, to give the determined that the proposed action March 27, 1995. Written comments public an opportunity to present will not result in any significant must be received on or before March 22, concerns on issues outside the Plan. environmental impact and that an 1995 in order to be considered by the This follow-up meeting was also environmental impact statement need conference participants. transcribed and the staff has provided not be prepared. ADDRESSES: Written comments should separate written responses to all of these be submitted in triplicate by March 22, concerns by letters dated May 10 and V 1995 to Jonathan G. Katz, Secretary, September 23, 1994. For further details with respect to this Securities and Exchange Commission, The major concerns of the public are action see: (1) The application for 450 5th Street NW., Washington, DC the perceived impacts of Yankee Rowe authorization of decommission the 20549. Comments should refer to File power generation and decommissioning facility, of December 20, 1993, as No. S7–6–95 and will be available for on the Deerfield River Valley and a supplemented August 5, August 22, public inspection at the Commission’s claim of denial of public participation October 24 and October 26, 1994. These Public Reference Room, 450 5th Street in the decommissioning process. This documents are available for public NW., Washington, DC 20549. latter concern is at issue in a case heard inspection at the Commission Public FOR FURTHER INFORMATION CONTACT: before the U.S. Court of Appeals for the Document Room, the Gelman Building, William E. Toomey or Richard K. Wulff, First Circuit in Boston, Massachusetts 2120 L Street NW., Washington, D.C. Office of Small Business Policy, on January 10, 1995. A decision will be 20555, and at the Local Public Division of Corporation Finance, rendered in the near future. In regard to Document Room located at the Securities and Exchange Commission, the first concern, the plant has been Greenfield Community College, 1 450 5th Street NW., Washington, DC required to comply with 10 CFR Part 20 College Drive, Greenfield, 20549, (202) 942–2950. throughout the 31 years of power Massachusetts 01301. SUPPLEMENTARY INFORMATION: operation and during the Dated at Rockville, Maryland this 14th day decommissioning process to date, and of February 1995. I. Discussion based on many NRC and For the Nuclear Regulatory Commission. A dual system of federal-state Commonwealth of Massachusetts William T. Russell, securities regulation has existed since inspections, the staff concludes that Director Office of Nuclear Reactor Regulation. the adoption of the federal regulatory there are no impacts resulting from [FR Doc. 95–4268 Filed 2–21–95; 8:45 am] structure in the Securities Act of 1933 Yankee Rowe that have diminished 1 BILLING CODE 7590±01±M (the ‘‘Securities Act’’). Issuers public health and safety in the Deerfield attempting to raise capital through River Valley. securities offerings, as well as III SECURITIES AND EXCHANGE participants in the secondary trading COMMISSION markets, are responsible for complying The NRC has reviewed the YAEC Plan with the federal securities laws as well with respect to the provisions of the [Release No. 33±7137, File No. S7±6±95] as all applicable state laws and Commission rules and regulations and regulations. It has long been recognized has found the decommissioning as Securities Uniformity; Annual that there is a need to increase stated in the YNPS Plan will be Conference on Uniformity of Securities uniformity between federal and state consistent with the regulations in 10 Law regulatory systems, and to improve CFR Chapter I, and will not be inimical AGENCY: Securities and Exchange cooperation among those regulatory to the common defense and security or Commission. bodies so that capital formation can be to the health and safety of the public. ACTION: Publication of release made easier while investor protections The staff concluded that this order announcing issues to be considered at a are retained. should contain a condition that conference on uniformity of securities The importance of facilitating greater specifies the method by which the laws and requesting written comments. uniformity in securities regulation was licensee may make changes to the Plan, endorsed by Congress with the the Final Safety Analysis Report, or the SUMMARY: In conjunction with a facility. conference to be held on March 27, 1 15 U.S.C. 77a et seq. 9872 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices enactment of section 19(c) of the other appropriate subjects sought to be remaining states. Further, consideration Securities Act in the Small Business included in the Conference agenda. All will be given to whether there are Investment Incentive Act of 1980.2 comments will be considered by the alternative exemptive methods which Section 19(c) authorizes the Conference attendees. might be suitable for coordination Commission to cooperate with any among the states and the federal system, III. Tentative Agenda and Request for association of state securities regulators either within or outside of the ULOE Comments which can assist in carrying out the framework. declared policy and purpose of section The tentative agenda for the 19(c). The policy of that section is that Conference consists of the following c. Small Business Initiative there should be greater federal and state topics in the areas of corporation On July 30, 1992, the Commission cooperation in securities matters, finance, investment management, adopted a number of rulemaking including: (1) Maximum effectiveness of market regulation and oversight, and changes, often described as the Small regulation; (2) maximum uniformity in enforcement. Business Initiative, which were federal and state standards; (3) designed to streamline and simplify the (1) Corporation Finance Issues minimum interference with the business Commission’s regulatory system of capital formation; and (4) a a. Forward-looking Information applicable to the public sale of substantial reduction in costs and On October 13, 1994, the Commission securities by small businesses, and to paperwork to diminish the burdens of issued a concept release 4 regarding provide new opportunities for investors, raising investment capital, particularly disclosure of forward-looking consistent with the Commission’s 6 by small business, and a reduction in information and the effectiveness of the obligations to protect such investors. the costs of the administration of the safe harbor provisions for that type of Among other things, the ceiling for the government programs involved. In order disclosure.5 The concept release Regulation A exemption was raised to establish methods to accomplish requests comment from the public on from $1,500,000 to $5,000,000, and these goals, the Commission is required various alternatives to the safe harbor issuers contemplating a Regulation A to conduct an annual conference. The provisions that have been proposed by offering were, for the first time, 1995 meeting will be the twelfth such several people. In addition, the permitted to use a written document to conference. Commission will hold public hearings ‘‘test the waters’’ for investor interest II. 1995 Conference in Washington, DC and in San prior to assuming the expense of an Francisco, California on February 13 offering. The Commission and the North The participants will discuss the and 16, 1995, respectively, concerning American Securities Administrators impact of these changes, and the need these issues. The conference Association, Inc. (‘‘NASAA’’) 3 are for any additional exemptive relief in participants will discuss and consider planning the 1995 Conference on the small business area. The the issues regarding the use of forward- Federal-State Securities Regulation (the participants will also review their looking information in disclosure ‘‘Conference’’) to be held March 27, experience with amended Regulation A documents and the Commission’s safe 1995 in Washington, DC. At the and the use of ‘‘test the waters’’ harbor provisions. Conference, representatives from the documents. Commission and NASAA will form into b. Uniform Limited Offering Exemption Public comment is invited on the working groups in the areas of efficacy of the Small Business Initiative corporation finance, market regulation, Congress specifically acknowledged the need for a uniform limited offering as a whole. Comment is also sought investment management, and with respect to any other exemptions enforcement, to discuss methods of exemption in enacting section 19(c) of the Securities Act and authorized the that might be developed to enhance the enhancing cooperation in securities ability of small issuers to raise capital, matters in order to improve the Commission to cooperate with NASAA in its development. The Commission while protecting legitimate interests of efficiency and effectiveness of federal investors. and state securities regulation. working with the states toward this goal, Generally, attendance will be limited to developed Rule 505 of Regulation D, the d. Disclosure Policy and Standards representatives of the Commission and federal exemption for certain limited The Commission regularly reviews NASAA in an effort to promote frank offerings, while NASAA crafted the and revises its policies with regard to discussion. However, each working complementary Uniform Limited the most appropriate methods of group in its discretion may invite Offering Exemption (‘‘ULOE’’). ensuring the disclosure of material ULOE provides the framework for a certain self-regulatory organizations to information to the public. Coordination uniform exemption from state attend and participate in certain of this effort with the states has been registration for certain issues of sessions. extremely helpful. Commenters are securities which would be exempt from Representatives of the Commission invited to discuss areas, and particularly federal registration by virtue of and NASAA currently are formulating whether or not there are particular Regulation D. To date, more than half an agenda for the Conference. As part of industries, where federal-state the states have adopted some form of that process the public, securities cooperation in addressing disclosure ULOE. Both the Commission and associations, self-regulatory standards could be of special NASAA continue to make a concerted organizations, agencies, and private significance as well as any ways in effort toward its universal adoption. The organizations are invited to participate which federal-state cooperation could conferees will discuss the continued through the submission of written be improved. Comment is also sought usefulness of ULOE, as well as possible comments on the issues set forth below. on the application of plain language steps to encourage its adoption by the In addition, comment is requested on principles to disclosure documents that are becoming increasingly lengthy and 2 4 Securities Act Release No. 7101 (October 13, Pub. L. 96–477, 94 Stat. 2275 (October 21, 1980). complex. 3 NASAA is an association of securities 1994) (59 FR 52723). administrators from each of the 50 states, the 5 See Securities Act Rule 175, 17 CFR 230.175; District of Columbia, Puerto Rico, Mexico and Securities Exchange Act Rule 3b–6, 17 CFR 240.3b– 6 Securities Act Release No. 6949 (July 30, 1992) twelve Canadian Provinces and Territories. 6. (57 FR 36442). Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9873 e. Multinational Securities Offerings g. Derivatives The participants will discuss the status of the CRD redesign project, as Derivatives are financial or The Commission has recently adopted well as issues relating to operation of commodity instruments which derive a number of changes to its rules and the existing CRD system. forms designed to facilitate access by their value from an interest rate, equity foreign issuers to the U.S. capital price, market or other defined index, b. Forms Revision foreign currency exchange rate, markets. On April 19, and December 13, In connection with the CRD redesign, commodity price of other identified 1994, the Commission adopted NASAA has adopted amendments to measure. While derivatives typically are amendments designed to streamline the Form U–4,11 the uniform form for described as including futures, registration and reporting process for registration of associated persons of a forwards, swaps and options, other foreign companies accessing the U.S. broker-dealer. The revisions to Form U– instruments such as structured notes, public markets by expanding the 4 respond to certain recommendations interest-only and principal-only strips, availability of short-form and shelf addressed in the CRD redesign and inverse floaters and indexed debt and registration and streamlining the primarily are designed to facilitate the equity instruments are included in the reconciliation and reporting conversion of data from the existing broader definition of derivatives requirements.7 Comment is specifically CRD system to the newly designed CRD. because they have similar risk requested on ways to coordinate federal The Commission recently has proposed characteristics. Recently published data and state treatment of multinational for public comment similar indicate that the notional amount of offerings. amendments to Form BD, the uniform derivatives worldwide exceeds $12 broker-dealer registration form under trillion. f. Debt Market Initiatives the Exchange Act.12 The proposed Investments in derivative and similar revisions to Form BD are intended to On November 10, 1994, the instruments expose investors to Commission adopted amendments to facilitate retrieval of disciplinary potential gains or losses linked to the information by eliciting more precise Rule 15c2–12 under the Securities changes in the underlying variable. The Exchange Act of 1934 (‘‘Exchange Act’’) information about broker-dealers and increasing complexity and widespread their securities business, and by that are intended to improve disclosure use of derivatives for trading and risk in the secondary market for municipal reorganizing disclosure items into management purpose has generated related categories. securities.8 The amendments prohibit a widespread interest. In 1994 a number The participants will discuss issues municipal securities dealer from of corporate issuers, investment underwriting an issue of municipal relating to the revisions to Forms U–4 companies and municipalities and BD, including the disclosure of securities unless the issuer undertakes experienced significant losses on to provide annual financial information customer complaint history of registered derivative instruments and structured personnel of broker-dealers and issues and notices of material events to the instruments. The Commission has raised by the comment letters on the market by lodging that information with undertaken a number of initiatives to proposed amendments to Form BD. informational repositories. The address disclosure, accounting and sales amendments also prohibit the practices involving derivatives and c. Bank Securities Activities recommendation of a municipal security similar instruments. Conferees will The NASD recently has proposed unless the dealer has procedures in discuss the application of federal and rules that would govern the conduct of place to provide reasonable assurance state securities laws to derivatives and member broker-dealers operating on that it will receive promptly any event similar instruments as well as financial institution premises.13 The notices with respect to that security. disclosure issues relating to issuances of proposed rules respond to concerns The amendments follow upon a and investments in these instruments. expressed by NASD members about the March 9, 1994 interpretive release (2) Market Regulation Issues lack of clear guidance with respect to issued by the Commission that the activities of bank-affiliated broker- addressed the disclosure obligations of a. Central Registration Depository dealers and third-party broker-dealers issuers and other market participants (‘‘CRD’’) operating on the premises of financial under the antifraud provisions of the The CRD is a computerized filing and institutions pursuant to a networking federal securities laws in both the data processing system operated by the arrangement. The NASD Notice to primary and secondary markets for NASD that maintains information Members states that, as proposed, the municipal securities.9 concerning registered broker-dealers rules adopt investor protection The Conference participants will and their associated persons. The NASD principles similar to those set forth in a discuss these developments and other is currently in the process of recent no-action letter issued by the staff of the Commission,14 and an matters with respect to municipal implementing a comprehensive plan to interagency statement issued by the four securities. In addition, they will discuss redesign the CRD. The redesigned banking regulators (‘‘Interagency the Commission’s recent proposals system, which is expected to be fully Statement’’).15 For example, consistent concerning disclosure of security operational in 1996, will be expanded to ratings.10 enhance its regulatory function for use by the states, self-regulatory 11 See NASAA Reports (CCH) ¶ 4161 (1994). organizations, and the Commission. 12 Securities Exchange Act Release No. 35224 7 Securities Act Release No. 7053 (April 19, 1994) (Jan. 12, 1995), (60 FR 4040). (59 FR 21644); Securities Act Release Nos. 7117, Among the improvements anticipated 13 See NASD Notice To Members 94–94 (Dec. 1778, 7119 (December 13, 1994) (59 FR 65628, 59 are (1) Streamlined presentation and 1994). FR 65632, 59 FR 65637). capture of data, (2) better access to 14 See Letter re: Chubb Securities Corporation 8 Securities Exchange Act Release No. 34961 information (e.g., the ability to create (Nov. 24, 1994). (November 10, 1994) (59 FR 59390). and retrieve standardized and 15 See Interagency Statement On Retail Sales Of 9 Securities Exchange Act Release No. 33741 Nondeposit Investment Products, Board of (March 9, 1994) (59 FR 12748). specialized computer searches), and (3) Governors of the Federal Reserve System, Federal 10 Securities Act Release No. 7086 (August 31, electronic filing of uniform Forms U–4, Deposit Insurance Corporation, Office of The 1994) (59 FR 46314). U–5, and BD, discussed below. Continued 9874 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices with the staff no-action letter and the The participants will discuss how similar rules within six months of the Interagency Statement, the rules would Rule 11Ac1–3 and amendments to Rules FTC rules. require members to enter into a written 10b–10 and 15c2–12 will affect the The Commission has been agreement with the financial institution securities industry. In addition, the considering various methods to curtail that describes the responsibilities of the participants will discuss the progress abusive cold-calling practices in the parties and the conditions of the made by the Municipal Securities securities industry and will discuss agreement, including the physical Rulemaking Board and the Public with participants what actions might be location of the broker-dealer, customer Securities Association toward enhanced taken in advance of the FTC rules. disclosures, compensation, supervisory price transparency in the municipal g. Continuing Education responsibilities, solicitation of securities market. customers, and communications with The Industry/Regulatory Council on the public. e. Sales Practice Activities Continuing Education, composed of The participants will discuss these In May of last year, the Commission representatives from the SROs, a cross- proposed rules and other concerns released the findings of the Large Firm section of firms, and liaisons from raised by sales of securities on the Project. The Project involved a review of NASAA and the SEC, is developing a premises of financial institutions, the hiring, supervisory, and retention continuing education curriculum to including inspections by banking and practices at nine of the country’s largest improve practices throughout the securities regulators and licensing of retail brokerage firms conducted by the industry. Under the Council’s proposed financial institution salespersons. Commission, the NYSE and the NASD. program, every broker-dealer will be d. Municipal Securities As a result of the Project, the required to provide its registered Commission staff proposed a number of representatives and first-line The Commission has been working supervisors with annual continuing with Congress, other regulators, and recommendations to strengthen broker- dealer compliance systems, enhance education relating to products and industry participants on a number of services. In addition, the Council issues relating to the municipal SRO efforts, and reinforce the Commission’s principal mandate of proposed that all registered securities market, including ways of representatives who have been improving dissemination of disclosure investor protection. The participants will discuss the status of those registered less than ten years or who in the primary and secondary markets. have been the subject of serious As indicated in the Corporation Finance recommendations, as well as other initiatives resulting from the Large Firm disciplinary action receive compliance, portion of this tentative agenda, the ethics, and sales practice training. Two Commission recently adopted Project, including Commission policy on re-entry into the securities industry working committees are developing the amendments to Rule 15c2–12 in elements of the program. The furtherance of this goal.16 of individuals subject to a Commission committees have drafted enabling rules The Commission also adopted bar. and designed the program structure, amendments to Rule 10b–10,17 which The Commission is in the process of content, and delivery mechanisms. The will require brokers-dealers to disclose conducting another joint regulatory Council received approval of the rules (1) When a debt security is not rated by examination sweep in coordination with on February 8, 1995 and expects to a nationally recognized statistical rating the NASD, the NYSE and NASAA. implement the program in July 1995. organization; (2) if they are not members Rather than focus on particular large Participants will discuss issues involved of the Securities Investor Protection firms as the staff did during the Large in implementing the continuing Corporation (except, in limited Firm Project, during this sweep the staff education program. circumstances, for transactions in will include firms of all sizes and will mutual fund shares); (3) the availability target so-called ‘‘rogue’’ or problem h. Three Day Settlement of information with respect to registered representatives throughout In October 1993, the Commission transactions in collateralized debt the industry. Participants will report on adopted Rule 15c6–1 which will securities; and (4) the amount of any the status of the current sweep. become effective June 7, 1995. The rule mark-ups and mark-downs in certain f. Cold Calling establishes three business days as the NASDAQ and regional exchange-listed standard settlement time frame for most securities that are subject to last sale Broker-dealers, like all firms engaged broker-dealer transactions. Since the reporting. In a related release, the in telemarketing, are subject to the date of adoption, many broker-dealers Commission adopted Rule 11Ac1–3 and Telephone Consumer Protection Act of have been encouraging their retail amendments to Rule 10b–10, which, 1991 and a Federal Communications customers to leave securities in street together, will require broker-dealers to Commission (‘‘FCC’’) rule promulgated name and to open up money disclose on customer confirmations, thereunder.19 Pursuant to the FCC rule, management accounts in order to meet account statements, and new accounts telemarketers must establish time-of-day the three day settlement requirements. documents whether payment for order restrictions, ‘‘do-not-call’’ lists, training While this practice is acceptable, it is a flow is received by the broker-dealer for requirements, supervisory procedures, misrepresentation to state that the rule transactions in certain securities and the and identification requirements. requires customers to leave assets with fact that the source and nature of the Moreover, in August 1994, new broker-dealers. The participants will compensation received will be legislation entitled the Telemarketing 18 discuss potentially abusive sales furnished upon written request. and Consumer Fraud and Abuse practices used by broker-dealers Prevention Act was passed that will including misrepresentation of the Comptroller of the Currency, and Office of Thrift require the Federal Trade Commission requirements of the rule. Supervision, (Feb. 15, 1994). (‘‘FTC’’) to enact cold-calling rules and 16 See notes 8 and 9 supra and accompanying (3) Investment Management Issues text. to direct the SEC to adopt substantially 17 Securities Exchange Act Release No. 34962 a. Investment Company Disclosure (Nov. 10, 1994), (59 FR 59612). 19 Pub. L. No. 102–243, 105 Stat. 2394 (1991) 18 Securities Exchange Act Release No. 34902 (codified at 47 U.S.C. 227 (1992)); 47 CFR 64.1200 Over the last decade, investment (Oct. 27, 1994), (59 FR 55006). (1992). company assets—particularly assets Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9875 invested in open-end investment b. Investment Advisers Kit’’ for novice or unsophisticated companies, or ‘‘mutual funds’’—have On March 16, 1994, the Commission investors that includes basic grown steadily. The conferees will proposed two new rules under the information that every investor should discuss a number of Commission Investment Advisers Act of 1940 know in an easy-to-use format; (2) initiatives aimed at improving (‘‘Advisers Act’’).22 One of these rules developing a model curriculum for high disclosure to mutual fund investors. would expressly prohibit investment school classes and adult seminars on the The conferees will discuss ways to advisers from making unsuitable basics of how to invest wisely and what improve the quality of information recommendations to clients; the other to do if a problem arises; and (3) regarding mutual funds available to proposed rule would prohibit registered designing a distribution plan for investors, particularly less experienced investment advisers from exercising Commission educational products to investors, as well as federal and state investment discretion over client assure that information is provided to efforts toward more uniform federal and accounts unless they reasonably believe investors when they are in the process state investment company disclosure that the custodians of those accounts of making major investment decisions requirements. The conferees will also send account statements to the clients at and most likely to need such discuss the steps they are taking to least quarterly. The conferees will information. examine and to improve the clarity and discuss the status of the proposed rules. (6) General adequacy of mutual fund prospectuses. The conferees will also discuss ways In response to a request from certain in which the Commission and the states There are a number of matters which members of Congress, the Division of can coordinate their respective are applicable to all, or a number, of the Investment Management prepared a investment adviser inspection programs areas noted above. These include study dated September 26, 1994 on the and efforts to identify investment EDGAR, the Commission’s electronic use of derivatives by mutual funds. As advisers that have failed to register as disclosure system, rulemaking part of its study, the Division such with the Commission or the procedures, training and education of recommended that the Commission appropriate state authorities. staff examiners and analysts and sharing consider seeking public comment in of information. (4) Enforcement Issues early 1995 on alternatives for improving The Commission and NASAA request risk disclosure in mutual fund In addition to the above-stated topics, specific public comments and prospectuses. The conferees are the state and federal regulators will recommendations on the above- expected to discuss issues relating to discuss various enforcement-related mentioned topics. Commenters should investment company risk disclosure, issues which are of mutual interest. focus on the agenda but may also discuss or comment on other proposals including the possible use of (5) Investor Education quantitative risk measurement. In which would enhance uniformity in the addition, the conferees will discuss Recently, the Commission announced existing scheme of state and federal ways to facilitate investor access to a number of initiatives to aid investors regulations, while helping to maintain information about portfolio securities in understanding how to invest wisely high standards of investor protection. and protect themselves from abusive held by funds. Dated: February 15, 1995. and fraudulent industry practices. The The Commission recently proposed By the Commission. rule and form amendments relating to States and NASAA have a longstanding commitment to investor education and Margaret H. McFarland, the reporting of expenses by investment the Commission is intent on Deputy Secretary. companies.20 The proposed coordinating and complementing those [FR Doc. 95–4237 Filed 2–21–95; 8:45 am] amendments would require an efforts to the greatest extent possible. BILLING CODE 8010±01±M investment company to reflect as The participants at the conference will expenses in its financial statement discuss investor education and potential certain liabilities of the company paid [Release No. 34±35378; File No. SR±DTC± joint projects in each of the working by broker-dealers in connection with the 95±02] group sessions. They will specifically allocation of the company’s brokerage consider the results of recent transactions to the broker-dealers. The Self-Regulatory Organizations; The Commission activities in this area: amendments are intended to enhance Depository Trust Company; Notice of Information generated at a series of the information provided to investors so Filing and Order Granting Accelerated town meetings and investor forums; that they may better assess investment Approval of Proposed Rule Change public reaction to a new toll-free company expenses and performance. Concerning Procedures Relating to information line for investors and a new The conferees are expected to discuss Rule 17Ad±16 and Order Designating electronic bulletin board which this proposal and the comments that the The Depository Trust Company as the provides information about the Commission has received. Approved Qualified Registered Commission and its responsibilities; the In October of 1994, the Commission Securities Depository usefulness of other explanatory adopted significant revisions to the informational materials, including new February 15, 1995. proxy rules applicable to funds.21 The pamphlets provided by the Commission Pursuant to Section 19(b)(1) of the amended rules are the first significant to the public; and the progress of Securities Exchange Act of 1934 revisions to the fund proxy rules since Commission efforts to develop ‘‘plain (‘‘Act’’),1 notice is hereby given that on 1960 and reflect the Commission’s English’’ instructions for mandatory January 13, 1995, The Depository Trust commitment to improved disclosure for disclosure items, and guidelines for Company (‘‘DTC’’) filed with the fund shareholders. The conferees are simpler summaries of information in Securities and Exchange Commission expected to discuss the revised rules. required filings. Future projects to be (‘‘Commission’’) the proposed rule considered will include the following: change as described in Items I and II 20 Investment Company Act Release No. 20472 below, which items have been prepared (Aug. 11, 1994) (59 FR 42187) (proposing (1) Developing an ‘‘Investor Information amendments to Rule 6–07 of Regulation S–X). primarily by DTC. The Commission is 21 Investment Company Act Release No. 20614 22 Investment Advisers Act Release No. 1406 (Oct. 13, 1994) (59 FR 52689). (March 16, 1994) (59 FR 13464). 1 15 U.S.C. 78s(b)(1) (1988). 9876 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices publishing this notice and order to services on behalf of an issuer or when (C) Self-Regulatory Organization’s solicit comments from interested changing its name or address. Statement on Comments on the persons and to grant accelerated In order to eliminate uncertainty Proposed Rule Change Received from approval to the proposed rule change. about where registered transfer agents Members, Participants or Others should direct notices required by Rule Written comments from DTC I. Self-Regulatory Organization’s 17Ad–16 and to reduce unnecessary participants or others have not been Statement of the Terms of Substance of costs and administrative burdens for solicited or received. the Proposed Rule Change transfer agents and registered securities DTC, seeks designation as the depositories, DTC hereby respectfully III. Date of Effectiveness of the ‘‘appropriate qualified registered requests designation as the ‘‘appropriate Proposed Rule Change and Timing for securities depository’’ to receive notices qualified registered securities Commission Action of transfer agent changes pursuant to the depository’’ in order to be the sole The Commission believes DTC’s recently adopted Rule 17Ad–16 2 of the recipient for all such notices sent by proposed rule change is consistent with 4 Act. This proposed rule change also transfer agents pursuant to the rule. the requirements of the Act, particularly DTC has established procedures for seeks approval of procedures that DTC Section 17A of the Act, and the rules providing copies of each such notice has established to receive and transmit and regulations thereunder applicable to received to the other registered such notices to other registered registered securities depositories. The securities depositories and to securities depositories, participants, and proposed rule change will allow DTC to participants and others. Generally, DTC others. comply with Commission Rule 17Ad–16 will forward such notices to the which requires registered securities II. Self-Regulatory Organization’s Midwest Securities Depository Trust depository to provide their participants Statement of the Purpose of, and Company (‘‘MSTC’’) and the with notices received from a transfer Statutory Basis for, the Proposed Rule Philadelphia Depository Trust Company agent, directly or through the Change (‘‘Philadep’’) by facsimile transmission appropriate qualified registered no later than the business day following In its filing with the Commission, securities depository, when the transfer DTC’s receipt of such notice from the DTC included statements concerning agent is terminating or assuming transfer agent. DTC will notify its the purpose of and basis for the transfer agent services on behalf of an participants and other interested parties proposed rule change and discussed any issuer or when changing its name or through DTC’s Legal Notice System comments it received on the proposed address. Rule 17Ad–16 became effective (‘‘LENS’’) 5 no later than the business rule change. The text of these statements on February 6, 1995. DTC also has day following DTC’s receipt of such may be examined at the places specified requested that the Commission find notice from the transfer agent. in Item IV below. DTC has prepared good cause for approving the proposed The proposed rule change is summaries, set forth in sections (A), (B), rule change prior to the thirtieth day consistent with the requirements of and (C) below, of the most significant after the day of publication of notice of Section 17A of the Act in that it aspects of such statements. the filing in the Federal Register promotes the prompt and accurate because accelerated approval will (A) Self-Regulatory Organization’s clearance and settlement of securities permit DTC to comply with the Statement of the Purpose of, and transactions as well as the timely requirements of Rule 17Ad–16. The Statutory Basis for, the Proposed Rule transfer of securities certificates Commission finds good cause for so Change resulting in greater number of securities approving the proposed rule change on being immobilized promptly. The Commission recently adopted an accelerated basis. Rule 17Ad–16. That rule is designed to (B) Self-Regulatory Organization’s With this order, the Commission also address the current and continuing Statement on Burden on Competition is designating DTC as the appropriate problem of transfer delays due to DTC does not believe that the qualified registered securities unannounced transfer agent changes, proposed rule change will impose any depository.6 DTC is the largest holder of including the change of a transfer agent burden on competition not necessary or record among qualified registered for a particular issue and the change of appropriate in furtherance of the securities depositories for the most the name or address of a transfer agent. purposes of the Act. issues.7 Also, as previously stated, both The rule requires a registered transfer MSTC and Philadep have agreed that agent to send a notice to the 4 DTC has consulted with both the Philadelphia DTC should be designated as the ‘‘appropriate qualified registered Depository Trust Company (‘‘Philadep’’) and the appropriate qualified registered securities depository’’ 3 when the Midwest Securities Trust Company (‘‘MSTC’’) securities depository. assuming or terminating transfer agent regarding DTC’s designation as the appropriate qualified registered securities depository. Both IV. Solicitation of Comments Philadep and MSTC have agreed, either orally or in 2 Securities Exchange Act Release No. 35039 writing, that DTC should be designated as the Interested persons are invited to (December 1, 1994), 59 FR 63656. appropriate qualified registered securities submit written date, views, and 3 An ‘‘appropriate qualified registered securities depository. Letter from J. Keith Kessel, Compliance arguments concerning the foregoing. depository’’ is defined by Rule 17Ad–16 to mean Officer, Philadep, to Walter Harris, Manager, DTC the qualified registered securities depository that (December 19, 1994). Both of these depositories Persons making written submissions the Commission so designates by order or, in the have filed with the Commission procedures for absence of such designation, the qualified registered disseminating to their participants information on 6 The Commission delegated to the Director of the securities depository that is the largest holder of transfer agent changes received from DTC. File Nos. Division of Market Regulation authority to record of all qualified registered securities SR–MSTC–95–02 and SR–Philadep–95–01. designate by order the appropriate qualified depositories as of the most recent record date. A 5 LENS enables DTC Participants to choose from registered securities depository. Securities ‘‘qualified registered securities depository’’ is a menu on their Participant Terminal System screen Exchange Act Release No. 35039 (December 1, defined by Rule 17Ad–16 to mean a clearing agency certain notices received by DTC which they wish 1994), 59 FR 63565; 17 CFR 200.30–3(a)(56) (1994). registered under Section 17A of the Act that to order. The Securities and Exchange Commission 7 DTC held securities on behalf of participants performs clearing agency functions and that has issued an order approving DTC’s LENS on June 12, that equaled $7.5 trillion and 98.8% of the total rules and procedures concerning its responsibility 1991 (Securities Exchange Act Release No. 29291 market value of securities held in total by the three for maintaining, updating, and providing (June 12, 1991), 56 FR 28190 [File No. SR–DTC–91– registered securities depositories that handle appropriate access to the information it receives. 08]). corporate securities. DTC 1993 Annual Report at 5. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9877 should file six copies thereof with the interested persons and to grant comments it received on the proposed Secretary, Securities and Exchange accelerated approval of the proposed rule change. The text of these statements Commission, 450 Fifth Avenue, NW., rule change. may be examined at the places specified Washington, DC 20549. Copies of the I. Self-Regulatory Organization’s in Item IV below. MSTC has prepared submission, all subsequent Statement of Terms of Substance of the summaries, set forth in sections (A), (B), amendments, all written statements Proposed Rule Change and (C) below, of the most significant with respect to the proposed rule aspects of such statements. change that are filed with the MSTC, a ‘‘qualified registered Commission, and all written securities depository,’’ 2 as that term is (A) Self-Regulatory Organization’s communications relating to the defined in Rule 17Ad–16 3 under the Statement of the Purposes of, and proposed rule change between the Act, proposes to adopt procedures to Statutory Basis for, the Proposed Rule Commission and any person, other than maintain, update, and provide Change appropriate access to the information it those that may be withheld from the On December 1, 1994, the public in accordance with the receives pursuant to Commission Rule 17Ad–16. MSTC requests that the Commission adopted Rule 17Ad–16.5 provisions of 5 U.S.C. 552, will be Among other things, the rule requires a available for inspection and copying in Commission designate The Depository Trust Company (‘‘DTC’’) as the transfer agent to file a notice with the the Commission’s Public Reference appropriate qualified registered Room, 450 Fifth Avenue, NW., ‘‘appropriate qualified registered 4 securities depository if the transfer Washington, DC. Copies of such filing securities depository’’ authorized to agent ceases to perform transfer agent will also be available for inspection and receive Rule 17Ad–16 notices on behalf services or assumes transfer agent copying at the principle office of DTC. of MSTC. services on behalf of an issuer or All submissions should refer to the File To ensure that Rule 17Ad–16 notices are timely disseminated, DTC and changes its name or address. The rule No. SR–DTC–95–02 and should be MSTC have agreed that all such notices also requires the appropriate qualified submitted by March 15, 1995. will be forwarded by DTC to MSTC via registered securities depository to It is hereby ordered, Pursuant to facsimile transmission on a daily basis. forward those notices to all qualified Section 19(b)(2) that the proposed rule MSTC proposes to maintain the Rule registered securities depositories, that in change (File No. SR–DTC–95–02) be, 17Ad–16 notices received from DTC for turn must notify their participants of and hereby is approved. It is further at least two years with the first six such transfer agent changes. Because ordered, pursuant to delegated authority months being in an easily accessible that DTC is designated the appropriate MSTC has agreed that DTC should be place on MSTC’s premises. qualified registered securities the appropriate qualified registered MSTC proposes to maintain depository.8 securities depository, transfer agents conformity with Rule 17Ad–16 by will send these notices to DTC. DTC For the Commission by the Division of making all material information then will forward a copy of these Market Regulation, pursuant to the delegated contained in any Rule 17Ad–16 notice notices to all qualified registered authority.9 that MSTC receives from DTC available securities depositories. Margaret H. McFarland, to its participants. This will be MSTC will provide its members on- Deputy Secretary. accomplished by updating MSTC’s line access to the information in the [FR Doc. 95–4277 Filed 2–21–95; 8:45 am] security account masterfile on a daily notices by updating MSTC’s security BILLING CODE 8010±01±M basis. Upon electronic inquiry by a account masterfile on a daily basis. The participant, the security account purpose of this proposed rule change is masterfile will provide the participant to adopt procedures to implement and [Release No. 34±35380; File No. SR±MSTC± with on-line information about a 95±2] assure compliance with Rule 17Ad–16. security, including the transfer agent’s MSTC states that the proposed rule name and address. Self-Regulatory Organizations; change is consistent with Sections Midwest Securities Trust Company; II. Self-Regulatory Organization’s 17A(b)(3) (A) and (F) of the Act in that Notice of Filing and Order Granting Statement of the Purpose of, and it facilitates the prompt and accurate Accelerated Approval of Proposed Statutory Basis for, the Proposed Rule clearance and settlement of securities Rule Change Relating to the Change transactions. Modifications of Procedures In its filing with the Commission, Implementing Rule 17Ad±16 (B) Self-Regulatory Organization’s MSTC included statements concerning Statement on Burden on Competition February 15, 1995. the purpose of and basis for the Pursuant to Section 19(b)(1) of the proposed rule change and discussed any MSTC believes that no burden will be Securities Exchange Act of 1934 (the placed on competition as a result of the ‘‘Act’’),1 notice is hereby given that on 2 Rule 17Ad–16 defines a ‘‘qualified registered proposed rule change. January 24, 1995, the Midwest securities depository’’ as a clearing agency registered under Section 17A of the Act that (C) Self-Regulatory Organization’s Securities Trust Company (‘‘MSTC’’) performs clearing agency functions and that has Statement on Comments on the filed with the Securities and Exchange rules and procedures concerning its responsibility Proposed Rule Change Received from Commission (the ‘‘Commission’’) the for maintaining, updating, and providing appropriate access to the information it receives Members, Participants or Others proposed rule change as described in pursuant to this section. Items I and II below, which items have 3 17 CFR § 240.17Ad–16 (1994). MSTC neither solicited nor received been prepared primarily by MSTC. The 4 Rule 17Ad–16 defines an ‘‘appropriate qualified written comments on the proposed rule Commission is publishing this notice register securities depository’’ as the qualified change. and order to solicit comments from registered securities depository that the Commission so designates by order or, in the absence of such designation, the qualified registered 5 17 CFR § 240.17Ad–16. See also Securities 8 17 CFR 200.30–3(a)(56) (1994). securities depository that is the largest holder of Exchange Act Release No. 35039 (December 1, 9 17 CFR 200.30–3(a)(12) (1994). record of all qualified registered securities 1994), 59 FR 63656 (release adopting Rule 17Ad– 1 15 U.S.C. 78s(b)(1) (1988). depositories as of the most recent record date. 16). 9878 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices III. Date of Effectiveness of the change (File No. SR–MSTC–95–02) is that was added in the original proposal, Proposed Rule Change and Timing for hereby approved. is italicized; language to be deleted is Commission Action For the Commission, by the Division of bracketed. Market Regulation, pursuant to delegated Limit Order Protection Interpretation to The Commission believes MSTC’s authority.6 proposed rule change is consistent with Article III, Section 1 of the NASD Rules Margaret H. McFarland, the requirements of the Act and the of Fair Practice Deputy Secretary. rules and regulations thereunder To continue to ensure investor applicable to registered transfer agents. [FR Doc. 95–4276 Filed 2–21–95; 8:45 am] protection and enhance market quality, The proposed rule change will allow BILLING CODE 8010±01±M the NASD Board of Governors is issuing MSTC to comply with Commission Rule an Interpretation to the Rules of Fair 17Ad–16 which, among other things, [Release No. 34±35391; File No. SR±NASD± Practice dealing with member firm require each qualified registered 94±62, Amendment No. 1] treatment of [their] customer limit securities depository to provide its orders in Nasdaq securities. This participants the notices it receives from Self-Regulatory Organizations; Notice Interpretation will require members transfer agents, directly or through the of Filing of Amendment No. 1 to acting as market makers to handle appropriate qualified registered security Proposed Rule Change by National [their] customer limit orders with all depository, when the transfer agent is Association of Securities Dealers, Inc., due care so that market makers do not terminating or assuming transfer agent Relating to Limit Order Protection for ‘‘trade ahead’’ of those limit orders. services on behalf of an issuer or Member-to-Member Limit Order Thus, members acting as market makers changing its name or address. Rule Handling on Nasdaq that handle customer limit orders, 17Ad–16 became effective on February February 16, 1995. whether received from their own 6, 1995. Pursuant to Section 19(b)(1) of the customers or from another member, are MSTC also has requested that the Securities Exchange Act of 1934 prohibited from trading at prices equal Commission find good cause for (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is or superior to that of the limit order approving the proposed rule change hereby given that on February 15, 1995, without executing the limit order, prior to the thirtieth day after the date the National Association of Securities provided that, prior to September 1, of publication of notice of the filing in Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) 1995, this prohibition shall not apply to the Federal Register. Accelerated filed with the Securities and Exchange customer limit orders that a member approval will permit MSTC to comply Commission (‘‘SEC’’ or ‘‘Commission’’) firm receives from another member firm immediately with the requirements of an amendment to the proposed rule and that are greater than 1,000 shares. Rule 17Ad–16. Thereby, the change as described in Items I, II, and Such orders shall be protected from Commission finds good cause for so III below, which Items have been executions at prices that are superior approving the proposed rule change. prepared by the NASD. The but not equal to that of the limit order. In the interests of investor protection, IV. Solicitation of Comments Commission is publishing this notice to solicit comments on the proposed rule the NASD is eliminating the so-called Interested persons are invited to change from interested persons. disclosure ‘‘safe harbor’’ previously established for members that fully submit written data, views, and I. Self-Regulatory Organization’s arguments concerning the foregoing. disclosed to their customers the practice Statement of the Terms of Substance of of trading ahead of a customer limit Persons making written submissions the Proposed Rule Change should file six copies thereof with the order by a market-making firm. Secretary, Securities and Exchange The NASD proposes to amend SR– Interpretation Commission, 450 Fifth Street, NW., NASD–94–62 relating to limit order Article III, Section 1 of the Rules of Washington, DC 20549. Copies of the protection for member-to-member limit Fair Practice states that: submission, all subsequent order handling in the Nasdaq Stock Market. Currently, the NASD’s A member, in the conduct of his amendments, all written statements business, shall observe high standards with respect to the proposed rule Interpretation to the Rules of Fair 1 of commercial honor and just and change that are filed with the Practice makes it a violation of just and equitable principles of trade for a equitable principles of trade. Commission, and all written The Best Execution Interpretation communications relating to the member firm to trade ahead of its own customer’s limit orders. In this states that: In any transaction for or with proposed rule change between the a customer, a member and persons Commission and any person, other than amendment to its proposed expansion of the Interpretation, the NASD is associated with a member shall use those that may be withheld from the reasonable diligence to ascertain the public in accordance with the proposing to amend the Interpretation to clarify that the ‘‘terms and conditions’’ best inter-dealer market for the subject provisions of 5 U.S.C. 552, will be security and buy or sell in such a market available for inspection and copying at exception to the Interpretation applies only to limit orders from institutional so that the resultant price to the the Commission’s Public Reference customer is as favorable as possible to Section, 450 Fifth Street, NW., accounts, whether such limit orders come from a firm’s own customers or the customer under prevailing market Washington, DC 20549. Copies of such conditions. Failure to exercise such filings will also be available for are member-to-member limit orders. The term ‘‘institutional account’’ is defined diligence shall constitute conduct inspection and copying at the principal inconsistent with just and equitable office of the above-referenced self- in Article III, Section 21(c)(4) of the Rules of Fair Practice. Below is the text principles of trade in violation of Article regulatory organization. All submissions III, Section 1 of the Rules of Fair should refer to the File No. SR–MSTC– of the proposed rule change. Proposed new language, including the language Practice. 95–02 and should be submitted by In accordance with Article VII, March 15, 1995. 6 17 CFR 200.30–3(a)(12) (1994). Section 1(a)(2) of the NASD By-Laws, It is therefore ordered, pursuant to 1 NASD Manual, Rules of Fair Practice, Art. III, the following interpretation under Section 19(b)(2) that the proposed rule Sec. 1 (CCH) ¶ 2151.07. Article III, Section 1 of the Rules of Fair Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9879 Practice has been approved by the of ‘‘best execution’’ regardless of customer’s limit orders. The proposal Board. whether the orders are executed through before the Commission now would A member firm that accepts and holds an the member’s market making capacity or extend this protection to limit orders unexecuted limit order from a customer sent to another member for execution. from a customer of a firm that sends that (whether its own customer or a customer of As set out above, the best execution customer’s limit order to another another member) in a Nasdaq security and Interpretation requires members to use member for execution (so-called that continues to trade the subject security reasonable diligence to ascertain the ‘‘member-to-member’’ limit orders). In for its own market-making account at prices best inter-dealer market for the security addition, the proposal has a phase-in that would satisfy the customer’s limit order, and buy or sell in such a market so that period until September 1, 1995, in without executing that limit order [under the specific terms and conditions by which the the price to the customer is as favorable which a firm receiving a member-to- order was accepted by the firm], shall be as possible under prevailing market member limit order of greater than 1,000 deemed to have acted in a manner conditions. The NASD emphasizes that shares would be prohibited from trading inconsistent with just and equitable the order entry firms should continue to for its own account at prices that are principles of trade, in violation of Article III, routinely monitor the handling of their superior but not equal to the limit order Section 1 of the Rules of Fair Practice, customers’ limit orders regarding the price. The NASD’s proposal also provided that, until September 1, 1995, quality of the execution received. maintained language from the existing customer limit orders in excess of 1,000 * * * * * Interpretation regarding the member’s shares received from another member firm ability to negotiate with any customer shall be protected from the market maker’s II. Self-Regulatory Organization’s executions at prices that are superior but not specific terms and conditions regarding Statement of the Purpose of, and its acceptance of limit orders, provided equal to the limit order, and provided Statutory Basis for, the Proposed Rule further, that a member firm may negotiate that the member makes these conditions specific terms and conditions applicable to Change clear to the customer. It is that language the acceptance of limit orders only with In its filing with the Commission, the that this amendment is intended to respect to limit orders for customer accounts NASD included statements concerning affect. that meet the definition of an ‘‘institutional the purpose of and basis for the The NASD believes that it is account’’ as that term is defined in Article III, proposed rule change and discussed any necessary to clarify that the terms and Section 21(c)(4) of the Rules of Fair Practice. conditions exception to the handling of Nothing in this section, however, requires comments it received on the proposed members to accept limit orders from any rule change. The text of these statements limit orders is intended to apply only to customer[s]. may be examined at the places specified customer orders from institutional in Item IV below. The NASD has accounts as that term is defined in By rescinding the safe harbor position prepared summaries, set forth in Article III, Section 21(c)(4) of the Rules and adopting this Interpretation of the Sections (A), (B), and (C) below, of the of Fair Practice. Using that definition, a Rules of Fair Practice, the NASD Board most significant aspects of such firm could negotiate limit order terms wishes to emphasize that members may statements. and conditions if the order came from: not trade ahead of customer limit orders • Banks, savings and loan in their market-making capacity even if (A) Self-Regulatory Organization’s associations, insurance companies, or the member had in the past fully Statement of the Purpose of, and registered investment companies; disclosed the practice to its customers Statutory Basis for, the Proposed Rule • Investment advisers registered prior to accepting limit orders. The Change under Section 203 of the Investment NASD believes that, pursuant to Article The purpose of the amendment to the Advisers Act of 1940; and III, Section 1 of the Rules of Fair proposed rule change is to clarify that • Any other entity (whether a natural Practice, members accepting and the Interpretation’s ‘‘terms and person, corporation, partnership, trust, holding unexecuted customer limit conditions’’ exception to the protection or otherwise) with total assets of at least orders owe certain duties to their of customer limit orders, whether the $50 million. customers and the customers of other order is from a member’s own customer Accordingly, under the amended member firms that may not be overcome or is a customer limit order sent to it for language, a member firm that accepts a or cured with disclosure of trading execution from another member (so- limit order from a person or entity that practices that include trading ahead of called ‘‘member-to-member’’ limit does not fall within the definition of the customer’s order. The terms and orders), is intended to apply only to institutional account may not initiate conditions under which institutional limit orders from institutional accounts the negotiation of any terms and account customer limit orders are as that term is defined in Article III, conditions on the acceptance of that accepted must be made clear to Section 21(c)(4) of the Rules of Fair limit order. On the other hand, if the customers at the time the order is Practice. The background and rationale account placing the limit order meets accepted by the firm so that trading for this amendment to the proposed rule the terms of the definition of ahead in the firms’ market making change are discussed below. institutional account, the firm may capacity does not occur. For purposes of On December 23, 1994, the negotiate special terms and conditions this Interpretation, a member that Commission published for comment the with the customer of that account, or its controls or is controlled by another NASD’s proposed rule to expand the representative, that permit the firm to member shall be considered a single scope of limit order protection beyond trade ahead of or at the same price as entity so that if a customer’s limit order that presently afforded by member firms the limit order. The amended is accepted by one affiliate and to their customers in the Nasdaq Stock Interpretation would apply to limit forwarded to another affiliate for Market.2 The NASD’S current orders placed by the firm’s own execution, the firms are considered a Interpretation to the Rules of Fair customers and member-to-member limit single entity and the market making unit Practice makes it a violation of just and orders. may not trade ahead of that customer’s equitable principles of trade for a The NASD believes that this approach limit order. member firm to trade ahead of its own should minimize a retail customer’s The Board also wishes to emphasize potential for confusion regarding the that all members accepting customer 2 Securities Exchange Act Release No. 35122 (Dec. acceptance of a limit order that, under limit orders owe those customers duties 20, 1994), 59 FR 66389 (Dec. 23, 1994). the existing Interpretation, could have 9880 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices qualified the protection of the limit burden on competition that is not For the Commission, by the Division of order rule’s scope. At the same time, the necessary or appropriate in furtherance Market Regulation, pursuant to delegated amendment accurately reflects the of the purposes of the Act, as amended. authority, 17 CFR 200.30–3(a)(12). ordinary framework in which firms and Accordingly, while the NASD will Margaret H. McFarland, institutions typically negotiate the monitor carefully for any adverse Deputy Secretary. conditions under which an institution’s competitive effects of the Interpretation, [FR Doc. 95–4358 Filed 2–16–95; 5:00 pm] limit order is to be handled. For it believes that any adverse effects are BILLING CODE 8010±01±M example, in its approval of the original far outweighed by the enhanced NASD Interpretation regarding the execution opportunities provided public 3 handling of customer limit orders, the investors. Commission specifically indicated its [Release No. 34±35376; File No. SR±Phlx± view that the terms and conditions (C) Self-Regulatory Organization’s 095±11] language of the original NASD Statement on Comments on the Interpretation was included to permit Proposed Rule Change Received from Self-Regulatory Organizations; Notice special treatment for institutional Members, Participants, or Others of Filing of Proposed Rule Change by customer limit orders. In addition, in its the Philadelphia Stock Exchange, Inc., own proposal regarding customer limit Written comments were neither Relating to the Listing of Five Year order protection for Nasdaq National solicited nor received. Long-Term Index Options Market securities, proposed Rule 15c5– III. Date of Effectiveness of the 4 February 14, 1995. 1, the Commission solicited comment Proposed Rule Change and Timing for on the ‘‘terms and conditions’’ Pursuant to Section 19(b)(1) of the Commission Action provisions in its rule, which would Securities Exchange Act of 1934 allow the parties to a trade to set special Within 35 days of the date of (‘‘Act’’), 15 U.S.C. 73s(b)(1), notice is conditions to allow a market maker to publication of this notice in the Federal hereby given that on February 8, 1995, employ an appropriate strategy in filling Register or within such longer period (i) the Philadelphia Stock Exchange, Inc. an institutional customer’s order as the Commission may designate up to (‘‘Phlx’’ or ‘‘Exchange’’) filed with the without violating the proposed rule. Of 90 days of such date if it finds such Securities and Exchange Commission course, the clarification of the longer period to be appropriate and (‘‘Commission’’) the proposed rule Interpretation continues to permit a publishes its reasons for so finding or change as described in Items I, II, and member to establish with its customers (ii) as to which the NASD consents, the III below, which Items have been or the order entry firm commissioner or Commission will: prepared by the Phlx. The Commission commission equivalents regarding the is publishing this notice to solicit (A) By order approve such proposed handling of a limit order, provided that comments on the proposed rule change rule change, or the member makes these charges clear to from interested persons. the customer. In this connection, the (B) institute proceedings to determine NASD notes that Nasdaq market makers whether the proposed rule change I. Self-Regulatory Organization’s are free to negotiate additional should be disapproved. Statement of the Terms of Substance of compensation from order routing firms the Proposed Rule Change to the extent that such compensation is IV. Solicitation of Comments economically and competitively The Phlx, pursuant to Rule 19b–4 of justified. Similarly, the Interpretation Interested persons are invited to the Act, proposes to amend its Rule continues in place the understanding submit written data, views, and 1101A to permit the listing of index that nothing in the Interpretation would arguments concerning the foregoing. option series with up to 60 months (five obligate a market maker to accept limit Persons making written submissions years) until expiration. Currently, Rule orders from any or all customers or should file six copies thereof with the 1101A permits ‘‘long-term’’ options up member firms. Secretary, Securities and Exchange to 36 months until expiration.1 The text The NASD believes that the proposed Commission, 450 Fifth Street, N.W., of the proposed rule change is available rule change is consistent with section Washington, D.C. 20549. Copies of the at the Office of the Secretary, the Phlx, 15A(b)(6) of the Act in that these submission, all subsequent and at the Commission. proposed changes are designed to amendments, all written statements prevent fraudulent and manipulative with respect to the proposed rule II. Self-Regulatory Organization’s acts and practices, to promote just and change that are filed with the Statement of the Purpose of and equitable principles of trade, to facilitate Commission, and all written Statutory Basis for, the Proposed Rule transactions in these securities, to communications relating to the Change remove impediments to and to perfect proposed rule change between the In its filing with the Commission, the the mechanism of a free and open Commission and any person, other than market and a national market system, Phlx included statements concerning those that may be withheld from the the purpose of and basis for the and in general to protect investors and public in accordance with the the public interest. proposed rule change and discussed any provisions of 5 U.S.C. 552, will be comments it received on the proposed (B) Self-Regulatory Organization’s available for inspection and copying in rule change. The text of these statements Statement on Burden on Competition the Commission’s Public Reference may be examined at the places specified The NASD does not believe that the Room. Copies of such filing will also be in Item IV below. The Phlx has prepared proposed rule change will result in any available for inspection and copying at summaries, set forth in sections (A), (B), the principal office of the NASD. All and (C) below, of the most significant 3 See Securities Exchange Act Release No. 34279 submissions should refer to SR–NASD– aspects of such statements. (June 29, 1994), 59 FR 34883 (July 7, 1994). 94–62, Amendment No. 1 and should be 4 See Securities Exchange Act Release No. 34753 submitted by March 7, 1995. (Sept. 29, 1994), 59 FR 50866 (Oct. 6, 1994). 1 See Rule 1101A(b)(iii). Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9881 (A) Self-Regulatory Organization’s IV. Solicitation of Comments mail. Hearing requests should be Statement of the Purpose of, and the Interested persons are invited to received by the SEC by 5:30 p.m. on Statutory for, the Proposed Rule Change submit written data, views and March 13, 1995, and should be accompanied by proof of service on the The purpose of the proposed rule arguments concerning the foregoing. Persons making written submissions applicant, in the form of an affidavit or, change is to provide investors with the for lawyers, a certificate of service. ability to trade additional long-term should file six copies thereof with the Secretary, Securities and Exchange Hearing requests should state the nature options by permitting the listing of of the writer’s interest, the reason for the index options with up to 60 months Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of the request, and the issues contested. until expiration. The Exchange Persons may request notification of a represents that the proposed five year submission, all subsequent amendments, all written statements hearing by writing to the SEC’s long-term options are in response to Secretary. increasing investor interest in longer- with respect to the proposed rule term instruments. In the Exchange’s change that are filed with the ADDRESSES: Secretary, SEC, 450 Fifth opinion, such instruments will enable Commission, and all written Street, N.W., Washington, D.C. 20549. investors to trade based on long-term communications relating to the Applicants, 1000 Louisiana Street, projections, providing added flexibility proposed rule change between the Houston, Texas 77002. and trading opportunities in index Commission and any person, other than FOR FURTHER INFORMATION CONTACT: options trading. The proposed those that may be withheld from the Diane L. Titus, Paralegal Specialist, at amendment to Rule 1101A will permit public in accordance with the (202) 942–0584, or Barry D. Miller, five-year long-term options in all of the provisions of 5 U.S.C. 552, will be Senior Special Counsel, at (202) 942– index options traded on the Phlx, both available for inspection and copying in 0564 (Division of Investment market (i.e., broad-based indexes) and the Commission’s Public Reference Management, Office of Investment industry (i.e., narrow-based indexes). Section, 450 Fifth Street, N.W., Washington, D.C. Copies of such filing Company Regulation. The Exchange believes that the will also be available for inspection and foregoing rule change proposal is SUPPLEMENTARY INFORMATION: The copying at the principal office of the following is a summary of the consistent with Section 6 of the Act, in Phlx. All submissions should refer to general, and with Section 6(b)(5), in application. The complete application File No. SR–Phlx–95–11 and should be may be obtained for a fee from the SEC’s particular, in that it is designed to submitted by March 15, 1995. promote just and equitable principles of Public Reference Branch. For the Commission, by the Division of trade, and remove impediments to and Applicant’s Representatives perfect the mechanism of a free and Market Regulation, pursuant to delegated authority.2 open market, by providing additional 1. Applicant is an open-end, Margaret H. McFarland, trading opportunities for investors. diversified investment company, Deputy Secretary. organized as a business trust under the (B) Self-Regulatory Organization’s [FR Doc. 95–4275 Filed 2–21–95; 8:45 am] Statement on Burden on Competition laws of the Commonwealth of BILLING CODE 8010±01±M Massachusetts. On October 29, 1993, The Phlx does not believe that the Applicant registered under the Act and proposed rule change will impose any [Investment Company Act Release No. filed its registration statement under the inappropriate burden on competition. 20898; 811±8112] Securities Act of 1933 (the ‘‘1933 Act’’). 2. In December 1994, the Adviser to (C) Self-Regulatory Organization’s Transamerica Tax-Free Trust; Notice of the applicant determined market Statement on Comments on the Application Proposed Rule Change Received from conditions for establishment municipal Members, Participants or Others February 14, 1995. funds of the applicant changed so as to AGENCY: Securities and Exchange make registration undesirable and No written comments were solicited Commission (‘‘SEC’’).. requested withdrawal of the registration or received with respect to the proposed ACTION: Notice of application for statement. On April 21, 1994, the rule change. deregistration under the Investment applicant received from the Commission III. Date of Effectiveness of the Company Act of 1940 (the ‘‘Act’’). an order withdrawing its registration Proposed Rule Change and Timing for statement pursuant to Rule 477 of the Commission Action APPLICANT: Transamerica Tax-Free 1933 Act. Accordingly, applicant has Funds Trust. not issued or offered any securities. Within 35 days of the date of RELEVANT ACT SECTION: Section 8(f). 3. Applicant has no shareholders, publication of this notice in the Federal SUMMARY OF APPLICATON: Applicant liabilities or assets Applicant is not a Register or within such longer period (i) seeks an order declaring it has ceased to party to any litigation or administrative as the Commission may designate up to be an investment company. proceeding. 90 days of such date if it finds such FILING DATE: The application was filed longer period to be appropriate and 4. Applicant is not now engaged, nor on January 18, 1995. publishes its reasons for so finding or does it propose to engage in any (ii) as to which the self-regulatory HEARING ON NOTIFICATION OF HEARING: An business activities other than those organization consents, the Commission order granting the application will be necessary for the winding-up its affairs. will: issued unless the SEC orders a hearing For the SEC, by the Division of Investment interested persons may request a Management, under delegated authority. (A) By order approve such proposed hearing by writing to the SEC’s Margaret H. McFarland, rule change, or Secretary and serving applicant with a (B) Institute proceedings to determine copy of the request, personally or by Deputy Secretary. whether the proposed rule change [FR Doc. 95–4236 Filed 2–21–95; 8:45 am] should be disapproved. 2 17 CFR 200.30–3(a)(12) (1994). BILLING CODE 8010±01±M 9882 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices SMALL BUSINESS ADMINISTRATION review and approval, and to publish a ADDRESSES: Objections and answers to notice in the Federal Register notifying objections should be filed in Docket Reporting and Recordkeeping the public that the agency has made 49813 and addressed to the Requirements Under OMB Review such a submission. Documentary Services Division (C–55, DATES: Room PL–401), U.S. Department of ACTION: Notice of reporting requirements Comments should be submitted Transportation, 400 Seventh Street SW., submitted for review. within 30 days of this publication in the Federal Register. If you intend to Washington, D.C. 20590 and should be SUMMARY: Under the provisions of the comment but cannot prepare comments served upon the parties listed in Paperwork Reduction Act (44 U.S.C. promptly, please advise the OMB Attachment A to the order. Reviewer and the Agency Clearance Chapter 35), agencies are required to FOR FURTHER INFORMATION CONTACT: Ms. Officer before the deadline. submit proposed reporting and Kathy Lusby Cooperstein, Air Carrier recordkeeping requirements to OMB for COPIES: Request for clearance (S.F. 83), Fitness Division (X–56, Room 6401), review and approval, and to publish a supporting statement, and other U.S. Department of Transportation, 400 notice in the Federal Register notifying documents submitted to OMB for Seventh Street SW., Washington, D.C. the public that the agency has made review may be obtained from the 20590, (202) 366–2337. such a submission. Agency Clearance Officer. Submit Dated: February 14, 1995 DATES: Comments should be submitted comments to the Agency Clearance Patrick V. Murphy, within 30 days of this publication in the Officer and the OMB Reviewer. Federal Register. If you intend to FOR FURTHER INFORMATION CONTACT: Acting Assistant Secretary for Aviation and International Affairs. comment but cannot prepare promptly, Agency Clearance Officer: Cleo please advise the OMB Reviewer and Verbillis, Small Business [FR Doc. 95–4263 Filed 2–21–95; 8:45 am] the Agency Clearance Officer before the Administration, 409 3rd Street, SW., BILLING CODE 4910±62±P deadline. 5th Floor, Washington, DC 20416, Telephone: (202) 205–6629. COPIES: Request for clearance (OMB 83– OMB Reviewer: Donald Arbuckle, Office Research and Special Programs 1), supporting statement, and other of Information and Regulatory Affairs, Administration documents submitted to OMB for Office of Management and Budget, review may be obtained from the New Executive Office Building, AGENCY: Research and Special Programs Agency Clearance Officer. Submit Washington, DC 20503. Administration, DOT. comments to the Agency Clearance Title: Settlement Sheet. ACTION: Officer and the OMB Reviewer. Form No.: SBA Form 1050. List of applicants for FOR FURTHER INFORMATION CONTACT: Frequency: On Occasion. exemptions. Agency Clearance Officer: Cleo Description of Respondents: SBA Verbillis, Small Business Borrowers. SUMMARY: In accordance with the Administration, 409 3rd Street, S.W., Annual Responses: 17,000. procedures governing the application 5th Floor, Washington, D.C. 20416, Annual Burden: 12,750. for, and the processing of, exemptions Telephone: (202) 205–6629. Dated: February 16, 1995. from the Department of Transportation’s OMB Reviewer: Donald Arbuckle, Office Cleo Verbillis, Hazardous Materials Regulations (49 CFR part 107, subpart B), notice is of Information and Regulatory Affairs, Chief, Administrative, Information Branch. Office of Management and Budget, hereby given that the Office of [FR Doc. 95–4229 Filed 2–21–95; 8:45 am] Hazardous Materials Safety has received New Executive Office Building, BILLING CODE 8025±01±M Washington, D.C. 20503. the applicants described herein. Each Title: SBA Grants Management mode of transportation for which a particular exemption is requested is Reporting and Recordkeeping DEPARTMENT OF TRANSPORTATION Requirements. indicated by a number in the ‘‘Nature of Application’’ portion of the table below Form No.: SBA Forms 1222 and 1224. Office of the Secretary Frequency: On Occasion. as follows: 1—Motor vehicle, 2—Rail Description of Respondents: SBA Grant Joint Application of NAVCOM Aviation, freight, 3—Cargo Vessel, 4—Cargo Applicants and Recipients. Inc., Ultrair, Inc., and Paradise Airways, aircraft only, 5—Passenger-carrying Annual Responses: 1,480. Inc., for Transfer of Certificate aircraft. Annual Burden: 118,920. Authority Under Section 41105 DATES: Comments must be received on or before March 24, 1995. Dated: February 16, 1995. AGENCY: Department of Transportation. Cleo Verbillis, ACTION: Notice of order to show cause ADDRESS COMMENTS TO: Dockets Unit, Chief, Administrative Information Branch. (order 95–2–31) docket 49813. Research and Special Programs [FR Doc. 95–4230 Filed 2–21–95; 8:45 am] Administration, U.S. Department of SUMMARY: The Department of BILLING CODE 8025±01±M Transportation, Washington, DC 20590. Transportation is directing all interested persons to show cause why it should Comments should refer to the not (1) find Paradise Airways, Inc., fit to application number and be submitted in Reporting and Recordkeeping triplicate. If confirmation of receipt of Requirements Under OMB Review engage in interstate scheduled air transportation of persons, property, and comments is desired, include a self- AGENCY: Notice of reporting mail, (2) transfer to it the section 41102 addressed stamped postcard showing requirements submitted for review. certificate held by Ultrair, Inc., and (3) the exemption application number. SUMMARY: Under the provisions of the cancel the interstate and foreign charter FOR FURTHER INFORMATION: Copies of the Paperwork Reduction Act (44 U.S.C. certificate authority held by Ultrair, Inc. applications are available for inspection Chapter 35), agencies are required to DATES: Persons wishing to file in the Dockets Unit, Room 8426, Nassif submit proposed reporting and objections should do so no later than Building, 400 7th Street, SW., recordkeeping requirements to OMB for February 27, 1995. Washington, DC. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9883 NEW EXEMPTIONS Application No. Applicant Regulation(s) affected Nature of exemption thereof 11385±N AirTime Aviation, Houston, TX ...... 49 CFR 171.11, 172.101, 172.204(c)(3), To authorize the transportation by com- 173.27, 175.30(a)(1), 175.320(b), part merce of Division 1.1, 1.2, 1.3 and 1.4 107, appendix B. explosives that are not permitted for shipment by air or are in quantities greater than those authorized. (Modes 4, 5). 11386±N Beaver Island Boat Co., Charlevoix, MI .. 49 CFR 172.101(10), Note (k)(4) ...... To authorize the transportation in com- merce of Division 2.1 material on pas- senger ferries in DOT-Specification 4BA 240 cylinders. (Mode 3). 11388±N Nalco Chemical Co., Naperville, IL ...... 49 CFR 173.243, appendix B to subpart To authorize the transportation in com- B of 49 CFR, part 107. merce of certain dual hazard liquids that are both flammable and corrosive in DOT-Specification 57 stainless steel portable tanks. (Modes 1, 2, 3). 11390±N D&D Air Transport, Inc., Houston, TX .... 49 CFR 171.11, 172.101, 172.204(c)(3), To authorize the transportation in com- 173.27, 175.30(a)(1), 175.320(b) part merce of Division 1.1, 1.2, 1.3 and 1.4 107, appendix B. explosives that are not permitted for shipment by air or are in quantities greater than those authorized. (Mode 4). 11391±N DHE (Fabrication & Machining), 49 CFR 178.245±1(b) ...... To authorize the transportation of non Vereeniging 1930, SA. DOT specification portable tanks simi- lar to DOT Specification 51, except they are equipped with openings in various locations on the same end for use in transporting various hazardous materials classed as Division 2.1, 2.2 and 2.3 (Modes 1, 2, 3). 11393±N Hoechst Celanese Corp., Charlotte, NC . 49 CFR 177.834(i)(3) ...... To authorize the loading and unloading of dimethyl Terephthalate, Class 9, from cargo tank without the physical presence of an unloader. (Mode 1). 11394±N Amtrol, West Warwick, RI ...... 49 CFR 178.51 ...... To authorize the manufacture, mark and sale of non-DOT specification cyl- inders of stainless steel comparable to a DOT Specification 4BA. (Mode 1). 11395±N Dart Polymers, Inc., Leola, PA ...... 49 CFR 173.35 ...... To authorize the transportation in com- merce of polystrene beads, expand- able, Class 9, in reusable fiberboard bulk boxes. (Modes 1, 2). 11396±N Laidlaw Environmental Services, 49 CFR 173.306(a)(3) ...... To authorize the transportation in com- LaPorte, TX. merce of certain flammable, non-flam- mable gases, Division 2.1 and 2.2 in aerosol containers overpacked in strong outside packages with no weight limitations. (Mode 1). 11397±N Speer Products Inc., Memphis, TN ...... 49 CFR 173.306(a)(3), 173.306(h) ...... To authorize the transportation in com- merce of difluoroethane aerosolsand mixtures, classed as Division 2.2 in DOT-Specification 2Q containers overpacked in strong outside packing without required labeling, placarding and shipping papers. (Mode 1). 11401±N Hewlett Packard Co., Santa Clara, CA ... 49 CFR 172, 173.124, 173.125, 174, To authorize the transportation in com- 175, 176, 177. merce of unpowered cesium devices classed as Division 4.3 consisting of a stainless-steel cylinder, overpacked in strong fiberboard boxes. (Modes 1, 2, 3, 5). 11403±N Telford Aviation Inc., Bangor, ME ...... 49 CFR 171.11, 172.101, 172.204(c)(3), To authorize the transportation in com- 173.27, 175.30(a)(1), 175.320(b), part merce of Division 1.1B explosives that 107, appendix B. are not permitted for shipment by air or are in quantities greater than those authorized. (Mode 4). 9884 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices NEW EXEMPTIONSÐContinued Application No. Applicant Regulation(s) affected Nature of exemption thereof 11405±N Hoechst Celanese Corp., Charlotte, NC . 49 CFR 100±199 ...... To authorize the transportation in com- merce of small quantities of a self- hearing material as essentially non- regulated. (Modes 1, 2, 3, 4, 5). 11406±N Conference of Radiation Control Pro- 49 CFR 173.403 ...... To authorize the transportation in com- gram Directors, Pittsburgh, PA. merce of trash/debris containing un- known radionuclides to be transported in conveyances with low external radi- ation levels if conditions are approved by State radiation protection officials. (Modes 1, 2). This notice of receipt of applications applications to become a party to an numbers with the suffix ‘‘M’’ denote a for new exemptions is published in exemption. modification request. Application accordance with part 107 of the numbers with the suffix ‘‘P’’ denote a SUMMARY: In accordance with the Hazardous Materials Transportations party to request. These applications procedures governing the application Act (49 U.S.C. 1806; 49 CFR 1.53(e)). have been separated from the new for, and the processing of, exemptions applications for exemptions to facilitate Issued in Washington, DC, on February 14, from the Department of Transportation’s processing. 1995. Hazardous Materials Regulations (49 DATES: Comments must be received on J. Suzanne Hedgepeth, CFR part 107, subpart B), notice is or before March 9. Chief, Exemption Programs, Office of hereby given that the Office of ADDRESS COMMENTS TO: Hazardous Materials Exemptions and Hazardous Materials Safety has received Docket Unit, Approvals. the applications described herein. This Research and Special Programs Administration, U.S. Department of [FR Doc. 95–4266 Filed 2–21–95; 8:45 am] notice is abbreviated to expedite Transportation, Washington, DC 20590. BILLING CODE 4910±60±M docketing and public notice. Because the sections affected, modes of Comments should refer to the transportation, and the nature of application number and be submitted in triplicate. If confirmation of receipt of Applications for Modification of application have been shown in earlier comments is desired, include a self- Exemptions or Applications To Federal Register publications, they are addressed stamped postcard showing Become a Party to an Exemption not repeated here. Requests for modifications of exemptions (e.g. to the exemption number. AGENCY: Research and Special Programs provide for additional hazardous FOR FURTHER INFORMATION: Copies of the Administration, DOT. materials, packaging design changes, applications are available for inspection additional mode of transportation, etc.) in the Dockets Unit, Room 8426, Nassif ACTION: List of applications for are described in footnotes to the Building, 400 7th Street SW, modification of exemptions or application number. Application Washington, DC. Renewal of Application No. Applicant exemption 6922±M ...... Halocarbon Products Corp., N. Augusta, SC (See Footnote 1) ...... 6922 8915±M ...... BOC Gases, Murray Hill, NJ (See Footnote 2) ...... 8915 9164±M ...... Fabricated Metals, Inc., San Leandro, CA (See Footnote 3) ...... 9164 10463±M ...... Allied Universal Corp., Miami, FL (See Footnote 4) ...... 10463 10970±M ...... Luxfer USA Limited, Placentia, CA (See Footnote 5) ...... 10970 11355±M ...... Button Transportation, Inc., Dixon, CA (See Footnote 6) ...... 11355 1 To modify exemption to provide for solid plugs as a replacement for relief devices for DOT-Specification 106A500±X multi-tank car tank, for shipment of Trifluroacetyl Chloride, Division 2.3, PIH, Zone B. 2 To modify exemption to authorize transportation of silane, Division 2.1, in DOT-Specification 3AL cylinders. 3 To modify exemption to increase the capacity to 379 gallons for non-DOT specification steel portable tanks, with removable head, for ship- ment of various Class 3 material. 4 To modify exemption to provide for transportation of hypochlorite solutions in non-DOT specification 1-gallon polyethylene bottles overpacked in non-DOT specification polyethylene drums without lids. 5 To modify exemption to increase water capacity to 200 pounds and the service pressure to 5000 psi for aluminum-lined composite cylinders meeting the design and qualification requirements of DOT FRP±1 standard for use in transporting various commodities classed as Division 2.1 and 2.2. 6 To reissue exemption originally issued on an emergency basis for the transportation of liquefied petroleum gas (LPG), in DOT Specification MC±331 cargo tank motor vehicles manufactured from quenced and tempered steel which are coated on the inside with a cross linked epoxy- phenolic compound. Parties to Application No. Applicant exemption 3549±P ...... EG&G Star City, Inc., Miamisburg, OH ...... 3549 6743±P ...... L.P. Rock Corp., Parsippany, NJ ...... 6743 8009±P ...... Texas Gas Transmission Corporation, Owensboro, KY ...... 8009 8230±P ...... Olin Corporation, Stamford, CT ...... 8230 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9885 Parties to Application No. Applicant exemption 8554±P ...... L.P. Rock Corp., Parsippany, NJ ...... 8554 8845±P ...... Hitwell Surveys, Inc., Fort Worth, TX ...... 8845 9275±P ...... Parlux Fragrances, Inc., Pompano Beach, FL ...... 9275 9617±P ...... Cherokee Products, Inc., Jefferson City, TN ...... 9617 10717±P ...... Procor Limited, East Chicago, IN ...... 10717 10897±P ...... ZestoTherm, Inc., Cincinnati, OH (See Footnote 1) ...... 10897 10933±P ...... Ochoa Environmental Services, San Juan, PR ...... 10933 11000±P ...... E.I. DuPont de Nemours & Company, Inc., Wilmington, DE ...... 11000 11043±P ...... Franklin Environmental Services, Inc., Wrentham, MA ...... 11043 11156±P ...... Maynes Explosives Company, Lee's Summit, MO ...... 11156 11156±P ...... Dyno New England, Inc., Middlefield, CT ...... 11156 11189±P ...... Allied Signal Safety Restraint Systems, Knoxville, TN ...... 11189 1 To authorize party status and modify exemption to provide for transport vehicles and freight containers transporting hazardous materials under terms of the exemption be excepted from Division 4.3 placarding requirements when the gross weight of packages in the vehicle or freight container is less than 220 pounds. This notice of receipt of applications 5. April 4, 9 a.m. to 12:30 a.m., identification and number of RTC assets for modification of exemptions and for Milwaukee, Wisconsin, Region 3 containing special environmental party to an exemption is published in Advisory Board. resources, assets sold to conservation or accordance with Part 107 of the 6. April 7, 9 a.m. to 12:30 p.m., San historic preservation agencies, assets Hazardous Materials Transportations Francisco, California, Region 6 Advisory covered by the Coastal Barrier Act (49 U.S.C. 1806; 49 CFR 1.53(e)). Board. Improvement Act and properties subject Issued in Washington, DC, on February 14, ADDRESSES: The meetings will be held at to environmental hazard remediation. 1995. the following locations: 1. Albuquerque, The Boards also will hear from the vice J. Suzanne Hedgepeth, New Mexico—Doubletree Albuquerque, presidents of the RTC’s regional offices Chief, Exemption Programs, Office of 201 Marquette NW. as well as from witnesses testifying on Hazardous Materials Exemptions and 2. Charlotte, North Carolina— specific agenda topics. Approvals. Charlotte–Mecklenburg Government Statements [FR Doc. 95–4265 Filed 2–21–95; 8:45 am] Plaza, 600 East 4th Street. 3. Boston, Massachusetts—Boston Interested persons may submit to an BILLING CODE 4910±60±M Back Bay Hilton, 40 Dalton Street. Advisory Board written statements, 4. Austin, Texas—Stouffer Austin data, information or views on the issues Hotel, 9721 Arboretum Boulevard. pending before the Board prior to or at THRIFT DEPOSITOR PROTECTION 5. Milwaukee, Wisconsin—Hyatt the meeting. The meetings will include OVERSIGHT BOARD Regency Milwaukee, 333 West Kilbourn a public forum for oral comments. Oral Avenue. comments will be limited to Regional Advisory Board Meetings for 6. San Francisco, California—Parc approximately five minutes. Interested Regions 1±6 Fifty-five Hotel, 55 Cyril Magnin. persons may sign up for the public FOR FURTHER INFORMATION CONTACT: forum at the meeting. All meetings are AGENCY: Thrift Depositor Protection Jill Nevius, Committee Management open to the public. Seating is available Oversight Board. Officer, Thrift Depositor Protection on a first come first served basis. ACTION: Meetings notice. Oversight Board, 808 17th Street, NW., Dated: February 16, 1995. Washington, DC 20232, 202/416–2626. Jill Nevius, SUMMARY: In accordance with section SUPPLEMENTARY INFORMATION: Section 10(a)(2) of the Federal Advisory Committee Management Officer, Officer of 501(a) of the Financial Institutions Committee Act (Pub. L. 92–463), Advisory Board Affairs. Reform, Recovery, and Enforcement Act announcement is hereby published for [FR Doc. 95–4260 Filed 2–16–95; 10:30 am] of 1989, Public Law No. 101–73, 103 the Series 20 Regional Advisory Board BILLING CODE 2221±01±M Stat. 183, 382–383, directed the meetings for Regions 1 through 6. The Oversight Board to establish one meetings are open to the public. The national advisory board and six regional publication of this notice will be less DEPARTMENT OF THE TREASURY advisory boards. than 15 days prior to the first meeting of the series due to a scheduling change. Purpose Public Information Collection Requirements Submitted to OMB for DATES: The 1995 meetings are scheduled The Regional Advisory Boards Review as follows: 1. March 2, 9 a.m. to 12:30 provide the Resolution Trust p.m., Albuquerque, New Mexico, Region Corporation (RTC) with February 14, 1995. 5 Advisory Board. recommendations on the policies and The Department of Treasury has 2. March 22, 9 a.m. to 12:30 p.m., programs for the sale of RTC-owned real submitted the following public Charlotte, North Carolina, Region 2 property assets. information collection requirement(s) to Advisory Board. OMB for review and clearance under the 3. March 24, 9 a.m. to 12:30 p.m., Agenda Paperwork Reduction Act of 1980, Boston, Massachusetts, Region 1 The Board will address issues Public Law 96–511. Copies of the Advisory Board. surrounding the RTC Environmental submission(s) may be obtained by 4. March 29, 9 a.m. to 12:30 p.m., and Significant Property Disposition calling the Treasury Bureau Clearance Austin, Texas, Region 4, Advisory Program. Topics to be addressed at the Officer listed. Comments regarding this Board. six meetings will include the information collection should be 9886 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices addressed to the OMB reviewer listed Estimated Number of Respondents/ Officer listed. Comments regarding this and to the Treasury Department Recordkeepers: 2,500 information collection should be Clearance Officer, Department of the Estimated Burden Hours Per addressed to the OMB reviewer listed Treasury, Room 2110, 1425 New York Respondent/Recordkeeper: and to the Treasury Department Avenue, NW., Washington, DC 20220. Recordkeeping ...... 8 hr., 37 min. Clearance Officer, Department of the Learning about the 3 hr., 28 min. Treasury, Room 2110, 1425 New York Internal Revenue Service (IRS) law or the form. Avenue, NW., Washington, DC 20220. OMB Number: 1545–0768 Preparing, copying, 3 hr., 46 min. Regulation ID Number: EE–178–78 Final assembling, and Bureau of the Public Debt (BPD) Type of Review: Extension sending the form OMB Number: 1535–0096 Title: Employers’ Qualified Educational to the IRS. Form Number: PD F 1993 Assistance Programs T. D. 7898 Frequency of Response: Other Type of Review: Extension Description: Respondents include Estimated Total Reporting/ Title: Reinvestment Application employers who maintain education Recordkeeping Burden: 60,925 hours Description: This form is used to request assistance programs for their OMB Number: 1545–1300 that proceeds of matured Series H employees. Information verifies that Regulation ID Number: FI–46–89 NPRM savings bonds be reinvested in Series programs are qualified and that Type of Review: Extension HH savings bonds. employees may exclude educational Title: Treatment of Acquisition of Respondents: Individuals or households assistance from their gross incomes. Certain Financial Institutions; Certain Estimated Number of Respondents: Respondents: Individuals or Tax Consequences of Federal 270,000 households, Business or other for- Financial Assistance to Financial Estimated Burden Hours Per Response: profit Institutions 15 minutes Estimated Number of Respondents: 200 Description: Recipients of Federal Frequency of Response: On occasion Estimated Total Reporting Burden: Estimated Burden Hours Per financial assistance (‘‘FFA’’) must Respondent: 5 minutes 67,500 hours maintain an account of FFA that is Clearance Officer: Vicki S. Ott (304) Frequency of Response: Annually deferred from inclusion in gross Estimated Total Reporting Burden: 615 480–6553, Bureau of the Public Debt, income and subsequently recaptured. 200 Third Street, Parkersburg, West hours This information is used to determine OMB Number: 1545–1161 VA 26106–1328 the recipient’s tax liability. Also, tax OMB Reviewer: Milo Sunderhauf (202) Regulation ID Number: CO–8–90 Final not subject to collection must be Type of Review: Extension 395–7340, Office of Management and reported and information must be Budget, Room 10226, New Executive Title: Consolidated Return provided if certain elections are made. Regulations—Deferred Gain or Loss Office Building, Washington, DC Respondents: Business or other for- 20503 (T.D. 8478) profit, Federal Government Description: This regulation requires a Estimated Number of Respondents: 1 Lois K. Holland, statement to be attached to a Estimated Burden Hours Per Departmental Reports Management Officer. consolidated federal income tax Respondent: 1 hour [FR Doc. 95–4241 Filed 2–21–95; 8:45 am] return by those groups which entered Frequency of Response: On occasion BILLING CODE 4810±40±P into certain intercompany Estimated Total Reporting Burden: 1 transactions before the effective date hour of the temporary regulations (March Clearance Officer: Garrick Shear (202) Public Information Collection 15, 1990), and that the treatment of 622–3869, Internal Revenue Service, Requirements Submitted to OMB for these transactions will be different Room 5571, 1111 Constitution Review than that of transactions entered into Avenue, N.W., Washington, DC 20224 February 13, 1995. after March 15, 1990. OMB Reviewer: Milo Sunderhauf (202) The Department of Treasury has Respondents: Business or other for- 395–7340, Office of Management and submitted the following public profit Budget, Room 10226, New Executive information collection requirement(s) to Estimated Number of Respondents: Office Building, Washington, DC OMB for review and clearance under the 2,500 20503 Estimated Burden Hours Per Paperwork Reduction Act of 1980, Lois K. Holland, Public Law 96–511. Copies of the Respondent: 2 hours Departmental Reports Management Officer Frequency of Response: Other (one time submission(s) may be obtained by only) [FR Doc. 95–4239 Filed 2–21–95; 8:45 am] calling the Treasury Bureau Clearance Estimated Total Reporting Burden: BILLING CODE 4830±01±P Officer listed. Comments regarding this 5,000 hours information collection should be addressed to the OMB reviewer listed OMB Number: 1545–1219 Public Information Collection Form Number: IRS Form 8038–T and to the Treasury Department Requirements Submitted to OMB for Clearance Officer, Department of the Type of Review: Revision Review Title: Arbitrage Rebate and Penalty in Treasury, Room 2110, 1425 New York Lieu of Arbitrage Rebate February 14, 1995. Avenue, NW., Washington, DC 20220. Description: Form 8038–T is used by The Department of Treasury has SPECIAL REQUEST: In order to insure that issuers of tax exempt bonds to report submitted the following public the form described below goes to print and pay the arbitrage rebate and to information collection requirement(s) to before February 28, 1995 for immediate elect and/or pay various penalties OMB for review and clearance under the distribution to and use by the affected associated with arbitrage bonds. Paperwork Reduction Act of 1980, public, the Department of the Treasury, These issuers include state and local Public Law 96–511. Copies of the on behalf of the Bureau of Alcohol, governments. submission(s) may be obtained by Tobacco and Firearms, is requesting Respondents: State, Local or Tribal calling the Treasury Bureau Clearance Office of Management and Budget Government (OMB) review and approval by February Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9887 21, 1995. Copies of the form may be Estimated Burden Hours Per Public Law 103–403 as amended, the obtained by contacting the bureau Respondent: 6 minutes Interagency Committee on Women’s clearance officer listed below. Frequency of Response: On occasion Business Enterprise announces Estimated Total Reporting Burden: forthcoming Committee Meetings. The Bureau of Alcohol, Tobacco and 1,293,883 hours meeting will cover action items to be Firearms (BATF) Clearance Officer: Robert N. Hogarth taken by the Interagency Committee on OMB Number: 1512–0520 (202) 927–8930, Bureau of Alcohol, Women’s Business Enterprise in Fiscal Form Number: ATF F 5300.35 Tobacco and Firearms, Room 3200, Year 1995 including but not limited to Type of Review: Extension 650 Massachusetts Avenue, N.W., increasing procurement opportunities Title: Statement of Intent to Obtain a Washington, DC 20226 and access to capital for women OMB Reviewer: Milo Sunderhauf (202) Handgun(s) business owners. 395–7340, Office of Management and Description: This form is used to Budget, Room 10226, New Executive Date: February 24, 1994 from 8:30 am to establish the eligibility of the buyer Office Building, Washington, DC 1:30 pm. and to determine if the handgun sale 20503 Address: White House—Old Executive is legal, prior to the actual delivery of Office Building, rooms 472 and 474. Lois K. Holland, the handgun. It becomes part of the Status: Open to the public. Departmental Reports Management Officer. dealer’s records and is used by the Contact: For further information contact Office of Enforcement in compliance [FR Doc. 95–4240 Filed 2–21–95; 8:45 am] Betsy Myers, Associate Administrator, SBA inspections and criminal BILLING CODE 4810±31±P Office of Women’s Business Ownership, 409 investigations to trace firearms or to Third Street, SW., suite 6250, Washington, confirm criminal activity of persons DC 20416, (202) 205–6673. who have violated. INTERAGENCY COMMITTEE ON Betsy Myers, Respondents: Individuals or WOMEN'S BUSINESS ENTERPRISE Associate Administrator SBA, Office of households, Business or other for- Women’s Business Ownership, and Vice Notice of Meeting profit, Federal Government Chairperson of the Interagency Committee. Estimated Number of Respondents: SUMMARY: In accordance with the [FR Doc. 95–4273 Filed 2–21–95; 8:45 am] 8,000,000 Women’s Business Ownership Act, BILLING CODE 8025±01±M 9888 Sunshine Act Meetings Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 This section of the FEDERAL REGISTER PLACE: Commissioners’ Conference Wednesday, March 15 contains notices of meetings published under Room, 11555 Rockville Pike, Rockville, 2:00 p.m. the ``Government in the Sunshine Act'' (Pub. Maryland. Briefing on Proposed Changes to NRC Fee L. 94-409) 5 U.S.C. 552b(e)(3). STATUS: Public and Closed. Rule (Public Meeting) (Contact: Jesse Funches, 301–415–7322) MATTERS TO BE CONSIDERED: 3:30 p.m. BOARD OF GOVERNORS OF THE FEDERAL Week of February 20 Affirmation/Discussion and Vote (Public RESERVES SYSTEM There are no meetings scheduled for the Meeting) (if needed) TIME AND DATE: 11:00 a.m., Monday, Week of February 20. Note: Affirmation sessions are initially February 27, 1995. scheduled and announced to the public on a Week of February 27—Tentative PLACE: Marriner S. Eccles Federal time-reserved basis. Supplementary notice is Reserve Board Building, C Street Tuesday, February 28 provided in accordance with the Sunshine entrance between 20th and 21st Streets, 10:00 a.m. Act as specific items are identified and added N.W., Washington, D.C. 20551. Briefing by OIG on Special Evaluation to the meeting agenda. If there is no specific STATUS: Closed. (Public Meeting) subject listed for affirmation, this means that (Contact: Robert Shideler, 301–415–5972) no item has as yet been identified as MATTERS TO BE CONSIDERED: 11:30 a.m. requiring any Commission vote on this date. 1. Proposals regarding a Federal Reserve Affirmation/Discussion and Vote (Public Bank’s building requirements. Meeting) The schedule for Commission 2. Personnel actions (appointments, (Please Note: This item will be affirmed meetings is subject to change on short promotions, assignments, reassignments, and immediately following the conclusion of notice. To verify the status of meetings salary actions) involving individual Federal the preceding meeting.) call (Recording)—(301) 415–1292. Reserve System employees. a. Curators of the University of Missouri— 3. Any items carried forward from a Appeal of LBP–91–31 and LBP–91–34 CONTACT PERSON FOR MORE INFORMATION: previously announced meeting. (Tentative) William Hill (301) 415–1661. (Contact: Roland Frye, 301–415–3505) CONTACT PERSON FOR MORE INFORMATION: This notice is distributed by mail to several Mr. Joseph R. Coyne, Assistant to the 2:00 p.m. Discussion of Management Issues hundred subscribers; if you no longer wish Board; (202) 452–3204. You may call (Closed—Ex. 2 and 6) to receive it, or would like to be added to it, (202) 452–3207, beginning at please contact the Office of the Secretary, approximately 5 p.m. two business days Week of March 6—Tentative Attn: Operations Branch, Washington, D.C. before this meeting, for a recorded Thursday, March 9 20555 (301–415–1963). announcement of bank and bank 2:00 p.m. In addition, distribution of this meeting holding company applications Briefing on Performance Indicators in notice over the internet system will also scheduled for the meeting. Materials Performance Evaluation become available in the near future. If you are interested in receiving this Commission Dated: February 17, 1995. Program (Public Meeting) meeting schedule electronically, please send William W. Wiles, (Contact: George Pangburn, 301–415–7266) 3:30 p.m. an electronic message to [email protected] or Secretary of the Board. Affirmation/Discussion and Vote (Public [email protected]. [FR Doc. 95–4475 Filed 2–17–95; 3:11 pm] Meeting) (if needed) Dated: February 17, 1995. BILLING CODE 6210±01±P Week of March 13—Tentative William M. Hill, Jr., Tuesday, March 14 SECY Tracking Officer, Office of the NUCLEAR REGULATORY COMMISSION Secretary. 10:00 a.m. DATE: Weeks of February 20, 27, March Briefing on Investigative Matters (Closed— [FR Doc. 95–4461 Filed 2–17–95; 3:11 pm] 6, and 13, 1995. Ex. 5 and 7) BILLING CODE 7590±01±M 9889 Corrections Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 This section of the FEDERAL REGISTER November 17, 1994, make the following contains editorial corrections of previously corrections: published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are §22.105 [Corrected] prepared by the Office of the Federal Register. Agency prepared corrections are On page 59512, in §22.105, Table B- issued as signed documents and appear in 1 should read as follows: the appropriate document categories elsewhere in the issue. FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 22 [CC Docket Nos. 92-115, 94-46 and 93-116; FCC 94-201] Public Mobile Services Correction In rule document 94–27415 beginning on page 59502 in the issue of Thursday, TABLE B±1.ÐSTANDARD FORMS FOR THE PUBLIC MOBILE SERVICES Purpose of filing Form No. Title of form • application for new or modified station 401 Application for Mobile Radio Service Authorization. • major amendment to pending application • application for partial assignment of authorization. • application for renewal of authorization 405 Application for Renewal of Station License. • application for airborne mobile authorization 409 Application for Airborne Mobile Radiotelephone Authorization. • application for assignment of authorization 430 Licensee Qualification Report. • notification of completion of construction 489 Notification of Commencement of Service or of Additional or Modified Facilities. • notification of minor modification of station. • application for assignment of authorization 490 Application for Assignment of Authorization or Consent to Transfer of Control of Li- • application for consent to transfer of control. censee. §22.361 [Corrected] Base Mobile Base Mobile §22.591 [Corrected] On page 59528, in §22.361, in the first On page 59541, in §22591, in the first column, table C-2 should read as 152.09 ...... 158.55 152.63 ...... 157.89 column the table should read as follows: 152.12 ...... 158.58 152.66 ...... 157.92 * * * * * follows: 152.15 ...... 158.61 152.69 ...... 157.95 VHF Channels TABLE C±2.ÐTECHNICAL REQUIREMENTS FOR 152.18 ...... 158.64 152.72 ...... 157.98 72.02 72.36 72.80 75.66 152.21 ...... 158.67 152.75 ...... 158.01 DIRECTIONAL ANTENNAS 72.04 72.38 72.82 75.68 152.51 ...... 157.77 152.78 ...... 158.04 72.06 72.40 72.84 75.70 Maximum 152.54 ...... 157.80 152.81 ...... 158.07 Frequency range beamwidth Suppression 72.08 72.42 72.86 75.72 72.10 72.46 72.88 75.74 35 to 512 MHz 80° 10 dB UHF Channels 72.12 72.50 72.90 75.76 72.14 72.54 72.92 75.78 ° 512 to 1500 MHz 20 13 dB 72.16 72.58 72.94 75.80 454.025 ...... 459.025 454.350 ...... 459.350 1500 to 2500 MHz 12° 13 dB 72.18 72.62 72.96 75.82 454.050 ...... 459.050 454.375 ...... 459.375 72.20 72.64 72.98 75.84 454.075 ...... 459.075 454.400 ...... 459.400 §22.561 [Corrected] 72.22 72.66 75.42 75.86 454.100 ...... 459.100 454.425 ...... 459.425 72.24 72.68 75.46 75.88 On page 59537, in §22.561, in the 454.125 ...... 459.125 454.450 ...... 459.450 72.26 72.70 75.50 75.90 second column, the table should read as 454.150 ...... 459.150 454.475 ...... 459.475 72.28 72.72 75.54 75.92 follows: 454.175 ...... 459.175 454.500 ...... 459.500 72.30 72.74 75.58 75.94 * * * * * 454.200 ...... 459.200 454.525 ...... 459.525 72.32 72.76 75.62 75.96 454.225 ...... 459.225 454.550 ...... 459.550 72.34 72.78 75.64 75.98 Base Mobile Base Mobile 454.250 ...... 459.250 454.575 ...... 459.575 72.10 72.46 72.88 75.74 72.12 72.50 72.90 75.76 VHF Channels 454.275 ...... 459.275 454.600 ...... 459.600 454.300 ...... 459.300 454.625 ...... 459.625 72.14 72.54 72.92 75.78 72.16 72.58 72.94 75.80 152.03 ...... 158.49 152.57 ...... 157.83 454.325 ...... 459.325 454.650 ...... 459.650 72.18 72.62 72.96 75.82 152.06 ...... 158.52 152.60 ...... 157.86 9890 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Corrections 72.20 72.64 72.98 75.84 928.5375 ...... 952.5375 928.7875 ..... 952.7875 476.0375 ...... 479.0375 482.0375 ..... 485.0375 72.22 72.66 75.42 75.86 928.5625 ...... 952.5625 928.8125 ..... 952.8125 476.0625 ...... 479.0625 482.0625 ..... 485.0625 72.24 72.68 75.46 75.88 928.5875 ...... 952.5875 928.8375 ..... 952.8375 476.0875 ...... 479.0875 482.0875 ..... 485.0875 72.26 72.70 75.50 75.90 (12.5 kHz bandwidth) 476.1125 ...... 479.1125 482.1125 ..... 485.1125 476.1375 ...... 479.1375 482.1375 ..... 485.1375 72.28 72.72 75.54 75.92 928.35625 .... 952.35625 928.60625 ... 952.60625 476.1625 ...... 479.1625 482.1625 ..... 485.1625 72.30 72.74 75.58 75.94 928.36875 .... 952.36875 928.61875 ... 952.61875 476.1875 ...... 479.1875 482.1875 ..... 485.1875 72.32 72.76 75.62 75.96 928.38125 .... 952.38125 928.63125 ... 952.63125 476.2125 ...... 479.2125 482.2125 ..... 485.2125 928.39375 .... 952.39375 928.64375 ... 952.64375 72.34 72.78 75.64 75.98 476.2375 ...... 479.2375 482.2375 ..... 485.2375 928.40625 .... 952.40625 928.65625 ... 952.65625 476.2625 ...... 479.2625 482.2625 ..... 485.2625 UHF Channels—State of Hawaii 928.41875 .... 952.41875 928.66875 ... 952.66875 476.2875 ...... 479.2875 482.2875 ..... 485.2875 488.250 .... 491.250 489.750 .... 492.750 928.43125 .... 952.43125 928.68125 ... 952.68125 928.44375 .... 952.44375 928.69375 ... 952.69375 Houston 488.750 .... 491.750 490.250 .... 493.250 928.45625 .... 952.45625 928.70625 ... 952.70625 488.1625 ...... 491.1625 488.2375 ..... 491.2375 489.250 .... 492.250 490.750 .... 493.750 928.46875 .... 952.46875 928.71875 ... 952.71875 928.48125 .... 952.48125 928.73125 ... 952.73125 488.1875 ...... 491.1875 488.2625 ..... 491.2625 MICROWAVE CHANNELS 928.49375 .... 952.49375 928.74375 ... 952.74375 488.2125 ...... 491.2125 488.2875 ..... 491.2875 928.50625 .... 952.50625 928.75625 ... 952.75625 Los Angeles [Bandwidth individually assigned] 928.51875 .... 952.51875 928.76875 ... 952.76875 928.53125 .... 952.53125 928.78125 ... 952.78125 470.0125 ...... 473.0125 506.0625 ..... 509.0625 470.0375 ...... 473.0375 506.0875 ..... 509.0875 2110.1 2160.1 928.54375 .... 952.54375 928.79375 ... 952.79375 928.55625 .... 952.55625 928.80625 ... 952.80625 506.0125 ...... 509.0125 506.1125 ..... 509.1125 2110.2 2160.2 506.0375 ...... 509.0375 . 2110.3 2160.3 928.56875 .... 952.56875 928.81875 ... 952.81875 928.58125 .... 952.58125 928.83125 ... 952.83125 Miami 2129.9 2179.9 928.59375 .... 952.59375 928.84375 ... 952.84375 470.0125 ...... 470.1625 473.0125 ..... 473.1625 Public, Private, Government Shared Pool 470.0375 ...... 470.1875 473.0375 ..... 473.1875 * * * * * (12.5 kHz bandwidth) 470.0625 ...... 470.2125 473.0625 ..... 473.2125 470.0875 ...... 470.2375 473.0875 ..... 473.2375 §22.621 [Corrected] 932.00625 .... 941.00625 932.25625 ... 941.25625 470.1125 ...... 470.2625 473.1125 ..... 473.2625 932.01875 .... 941.01875 932.26875 ... 941.26875 470.1375 ...... 470.2875 473.1375 ..... 473.2875 On page 59542, in the second column, 932.03125 .... 941.03125 932.28125 ... 941.28125 in §22.621, the table should read as 932.04375 .... 941.04375 932.29375 ... 941.29375 Philadelphia 932.05625 .... 941.05625 932.30625 ... 941.30625 500.0125 ...... 503.0125 506.0125 ..... 509.0125 follows: 932.06875 .... 941.06875 932.31875 ... 941.31875 500.0375 ...... 503.0375 506.0375 ..... 509.0375 932.08125 .... 941.08125 932.33125 ... 941.33125 500.0625 ...... 503.0625 506.0625 ..... 509.0625 * * * * * 932.09375 .... 941.09375 932.34375 ... 941.34375 500.0875 ...... 503.0875 506.0875 ..... 509.0875 932.10625 .... 941.10625 932.35625 ... 941.35625 Public Mobile Pool 500.1125 ...... 503.1125 506.1125 ..... 509.1125 932.11875 .... 941.11875 932.36875 ... 941.36875 500.1375 ...... 503.1375 506.1375 ..... 509.1375 (25 kHz bandwidth) 932.13125 .... 941.13125 932.38125 ... 941.38125 500.1625 ...... 503.1625 506.1625 ..... 509.1625 928.8625 ...... 959.8625 928.9375 ..... 959.9375 932.14375 .... 941.14375 932.39375 ... 941.39375 500.1875 ...... 503.1875 506.1875 ..... 509.1875 928.8875 ...... 959.8875 928.9625 ..... 959.9625 932.15625 .... 941.15625 932.40625 ... 941.40625 500.2125 ...... 503.2125 506.2125 ..... 509.2125 928.9125 ...... 959.9125 928.9875 ..... 959.9875 932.16875 .... 941.16875 932.41875 ... 941.41875 932.18125 .... 941.18125 932.43125 ... 941.43125 500.2375 ...... 503.2375 506.2375 ..... 509.2375 (12.5 kHz bandwidth) 932.19375 .... 941.19375 932.44375 ... 941.44375 500.2625 ...... 503.2625 506.2625 ..... 509.2625 928.85625 .... 959.85625 928.93125 ... 959.93125 932.20625 .... 941.20625 932.45625 ... 941.45625 500.2875 ...... 503.2875 506.2875 ..... 509.2875 928.86875 .... 959.85625 928.94375 ... 959.94375 932.21875 .... 941.21875 932.46875 ... 941.46875 Pittsburgh 928.88125 .... 959.88125 928.95625 ... 959.95625 932.23125 .... 941.23125 932.48125 ... 941.48125 470.0125 ...... 470.1625 473.0125 ..... 473.1625 928.89375 .... 959.89375 928.96875 ... 959.96875 932.24375 .... 941.24375 932.49375 ... 941.49375 470.0375 ...... 470.1875 473.0375 ..... 473.1875 928.90625 .... 959.90625 928.98125 ... 959.98125 UHF Channels in Specified Urban Areas 470.0625 ...... 470.2125 473.0625 ..... 473.2125 928.91875 .... 959.91875 928.99375 ... 959.99375 Boston 470.0875 ...... 470.2375 473.0875 ..... 473.2375 Private Radio General Access Pool 470.1125 ...... 470.2625 473.1125 ..... 473.2625 470.0125 ...... 473.0125 482.0125 ..... 485.0125 470.1375 ...... 470.2875 473.1375 ..... 473.2875 (25 kHz bandwidth) 470.0375 ...... 473.0375 482.0375 ..... 485.0375 956.2625 ...... 956.3125 956.3625 ..... 956.4125 470.0625 ...... 473.0625 482.0625 ..... 485.0625 San Francisco 470.0875 ...... 473.0875 482.0875 ..... 485.0875 956.2875 ...... 956.3375 956.3875 ..... 956.4375 482.0125 ...... 485.0125 488.0125 ..... 491.0125 470.1125 ...... 473.1125 482.1125 ..... 485.1125 482.0375 ...... 485.0375 488.0375 ..... 491.0375 928.0125 ...... 952.0125 928.1875 ..... 952.1875 470.1375 ...... 473.1375 482.1375 ..... 485.1375 482.0625 ...... 485.0625 488.0625 ..... 491.0625 928.0375 ...... 952.0375 928.2125 ..... 952.2125 470.1625 ...... 473.1625 482.1625 ..... 485.1625 482.0875 ...... 485.0875 488.0875 ..... 491.0875 928.0625 ...... 952.0625 928.2375 ..... 952.2375 470.1875 ...... 473.1875 482.1875 ..... 485.1875 928.0875 ...... 952.0875 928.2625 ..... 952.2625 470.2125 ...... 473.2125 482.2125 ..... 485.2125 482.1125 ...... 485.1125 488.1125 ..... 491.1125 928.1125 ...... 952.1125 928.2875 ..... 952.2875 470.2375 ...... 473.2375 482.2375 ..... 485.2375 482.1375 ...... 485.1375 488.1375 ..... 491.1375 928.1375 ...... 952.1375 928.3125 ..... 952.3125 470.2625 ...... 473.2625 482.2625 ..... 485.2625 482.1625 ...... 485.1625 488.1625 ..... 491.1625 928.1625 ...... 952.1625 928.3375 ..... 952.3375 470.2875 ...... 473.2875 482.2875 ..... 485.2875 482.1875 ...... 485.1875 488.1875 ..... 491.1875 482.2125 ...... 485.2125 488.2125 ..... 491.2125 (12.5 kHz bandwidth) Chicago, Cleveland 482.2375 ...... 485.2375 488.2375 ..... 491.2375 956.25625 .... 956.30625 956.35625 ... 956.40625 470.0125 ...... 473.0125 476.0125 ..... 479.0125 482.2625 ...... 485.2625 488.2625 ..... 491.2625 956.26875 .... 956.31875 956.36875 ... 956.41875 470.0375 ...... 473.0375 476.0375 ..... 479.0375 482.2875 ...... 485.2875 488.2875 ..... 491.2875 956.28125 .... 956.33125 956.38125 ... 956.43125 470.0625 ...... 473.0625 476.0625 ..... 479.0625 Washington, DC 956.29375 .... 956.34375 956.39375 ... 956.44375 470.0875 ...... 473.0875 476.0875 ..... 479.0875 470.1125 ...... 473.1125 476.1125 ..... 479.1125 488.0125 ...... 491.0125 494.0125 ..... 497.0125 928.00625 .... 952.00625 928.18125 ... 952.18125 470.1375 ...... 473.1375 476.1375 ..... 479.1375 488.0375 ...... 491.0375 494.0375 ..... 497.0375 928.01875 .... 952.01875 928.19375 ... 952.19375 470.1625 ...... 473.1625 476.1625 ..... 479.1625 488.0625 ...... 491.0625 494.0625 ..... 497.0625 928.03125 .... 952.03125 928.20625 ... 952.20625 470.1875 ...... 473.1875 476.1875 ..... 479.1875 488.0875 ...... 491.0875 494.0875 ..... 497.0875 928.04375 .... 952.04375 928.21875 ... 952.21875 470.2125 ...... 473.2125 476.2125 ..... 479.2125 488.1125 ...... 491.1125 494.1125 ..... 497.1125 928.05625 .... 952.05625 928.23125 ... 952.23125 470.2375 ...... 473.2375 476.2375 ..... 479.2375 488.1375 ...... 491.1375 494.1375 ..... 497.1375 928.06875 .... 952.06875 928.24375 ... 952.24375 470.2625 ...... 473.2625 476.2625 ..... 479.2625 488.1625 ...... 491.1625 494.1625 ..... 497.1625 928.08125 .... 952.08125 928.25625 ... 952.25625 470.2875 ...... 473.2875 476.2875 ..... 479.2875 488.1875 ...... 491.1875 494.1875 ..... 497.1875 928.09375 .... 952.09375 928.26875 ... 952.26875 New York-Northeastern New Jersey 488.2125 ...... 491.2125 494.2125 ..... 497.2125 928.10625 .... 952.10625 928.28125 ... 952.28125 488.2375 ...... 491.2375 494.2375 ..... 497.2375 928.11875 .... 952.11875 928.29375 ... 952.29375 470.0125 ...... 470.1625 476.0125 ..... 476.1625 488.2625 ...... 491.2625 494.2625 ..... 497.2625 928.13125 .... 952.13125 928.30625 ... 952.30625 470.0375 ...... 470.1875 476.0375 ..... 476.1875 488.2875 ...... 491.2875 494.2875 ..... 497.2875 928.14375 .... 952.14375 928.31875 ... 952.31875 470.0625 ...... 470.2125 476.0625 ..... 476.2125 928.15625 .... 952.15625 928.33125 ... 952.33125 470.0875 ...... 470.2375 476.0875 ..... 476.2375 * * * * * 928.16875 .... 952.16875 928.34375 ... 952.34375 470.1125 ...... 470.2625 476.1125 ..... 476.2625 Private Radio Power Pool 470.1375 ...... 470.2875 476.1375 ..... 476.2875 §22.627 [Corrected] (25 kHz bandwidth) Dallas-Forth Worth 482.0125 ...... 482.1625 485.0125 ..... 485.1625 On page 59544, in the second column, 928.3625 ...... 952.3625 928.6125 ..... 952.6125 482.0375 ...... 482.1875 485.0375 ..... 485.1875 928.3875 ...... 952.3875 928.6375 ..... 952.6375 in §22.627(b)(1)(i), the table should read 482.0625 ...... 482.2125 485.0625 ..... 485.2125 928.4125 ...... 952.4125 928.6625 ..... 952.6625 482.0875 ...... 482.2375 485.0875 ..... 485.2375 as set forth below: 928.4375 ...... 952.4375 928.6875 ..... 952.6875 482.1125 ...... 482.2625 485.1125 ..... 485.2625 928.4625 ...... 952.4625 928.7125 ..... 952.7125 482.1375 ...... 482.2875 485.1375 ..... 485.2875 * * * * * 928.4875 ...... 952.4875 928.7375 ..... 952.7375 928.5125 ...... 952.5125 928.7625 ..... 952.7625 Detroit (i) The protected TV station locations 476.0125 ...... 479.0125 482.0125 ..... 485.0125 are as follows: Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Corrections 9891 Control transmitter frequency range Protected TV station location 470±476 MHz ...... Jacksonville, IL 39°45′52′′ 90°30′29′′. Mt. Pleasant, MI 43°34′24′′ 84°46′21′′. Oxford, OH 39°30′26′′ 84°44′09′′. Washington, DC 38°57′17′′ 77°00′17′′. 476±482 MHz ...... Champaign, IL 40°04′11′′ 87°54′45′′. Madison, WI 43°03′01′′ 89°29′15′′. Parkersburg, WV 39°20′50′′ 81°33′56′′. Fort Wayne, IN 41°05′35′′ 85°10′42′′. Lancaster, PA 40°15′45′′ 76°27′49′′. 482±488 MHz ...... South Bend, IN 41°36′26′′ 86°27′48′′. 488±494 MHz ...... Philadelphia, PA 40°02′30′′ 75°14′24′′. 494±500 MHz ...... None. 500±506 MHz ...... Johnstown, PA 40°19′47′′ 78°53′45′′. 506±512 MHz ...... Washington, DC 38°57′49′′ 77°06′18′′. Waterbury, CT 41°31′02′′ 73°01′00′′. * * * * * §22.757 [Corrected] CHANNEL BLOCK B 416 communication channel pairs §22.651 [Corrected] On page 59553, in the first column, in 880.020 ...... 835.020 891.510 ...... 846.510 §22.757, the table should read as 880.050 ...... 835.050 981.540 ...... 846.540 On page 59546, in the first column, in | | | | §22.651, the table should read as follows: | | | | follows: * * * * * 889.980 ...... 844.980 893.970 ...... 848.970 * * * * * 21 control channel pairs UHF CHANNELSÐSHARED WITH PRIVATE RADIO 835.020 ...... 880.020 Houston SERVICES 835.050 ...... 880.050 488.0125 ...... 491.0125 488.0875 ..... 491.0875 | | 488.0375 ...... 491.0375 488.1125 ..... 491.1125 Rural sub- Central Rural sub- Central | | 488.0625 ...... 491.0625 488.1375 ..... 491.1375 scriber office scriber office 835.920 ...... 880.620 New York-Northern New Jersey * * * * * 473.0125 ...... 479.0125 473.1625 ..... 479.1625 816.2375 .... 861.2375 816.1125 .... 861.1125 473.0375 ...... 479.0375 473.1875 ..... 479.1875 817.2375 .... 862.2375 817.1125 .... 862.1125 §22.1007 [Corrected] 473.0625 ...... 479.0625 473.2125 ..... 479.2125 818.2375 .... 863.2375 818.1125 .... 863.1125 473.0875 ...... 479.0875 473.2375 ..... 479.2375 819.2375 .... 864.2375 819.1125 .... 864.1125 473.1125 ...... 479.1125 473.2625 ..... 479.2625 820.2375 .... 865.2375 820.1125 .... 865.1125 On page 59573, in the third column, 473.1375 ...... 479.1375 473.2875 ..... 479.2875 816.2125 .... 861.2125 816.0875 .... 861.0875 in §22.1007, the tables should read as 817.2125 .... 862.2125 817.0875 .... 862.0875 follows: * * * * * 818.2125 .... 863.2125 818.0875 .... 863.0875 819.2125 .... 864.2125 819.0875 .... 864.0875 * * * * * §22.725 [Corrected] 820.2125 .... 865.2125 820.0875 .... 865.0875 Central Subscriber Central Subscriber On page 59551, in the third column, 816.1875 .... 861.1875 816.0625 .... 861.0625 817.1875 .... 862.1875 817.0625 .... 862.0625 in §22.725, on page 59551 the table 818.1875 .... 863.1875 818.0625 .... 863.0625 488.025 ...... 491.025 488.225 ...... 491.225 should read as follows: 819.1875 .... 864.1875 819.0625 .... 864.0625 488.050 ...... 491.050 488.250 ...... 491.250 820.1875 .... 865.1875 820.0625 .... 865.0625 488.075 ...... 491.075 488.275 ...... 491.275 * * * * * 488.100 ...... 491.100 488.300 ...... 491.300 816.1625 .... 861.1625 816.0375 .... 861.0375 488.125 ...... 491.125 488.325 ...... 491.325 817.1625 .... 862.1625 817.0375 .... 862.0375 488.150 ...... 491.150 488.350 ...... 491.350 Rural Rural 818.1625 .... 863.1625 818.0375 .... 863.0375 Central sub- Central sub- 488.175 ...... 491.175 488.375 ...... 491.375 office office 819.1625 .... 864.1625 819.0375 .... 864.0375 488.200 ...... 491.200 488.400 ...... 491.400 scriber scriber 820.1625 .... 865.1625 820.0375 .... 865.0375 VHF Channels 816.1375 .... 861.1375 816.0125 .... 861.0125 817.1375 .... 862.1375 817.0125 .... 862.0125 (2) These channels may be assigned 818.1375 .... 863.1375 818.0125 .... 863.0125 for use by offshore central (base/fixed) 152.03 ...... 158.49 152.57 ...... 157.83 819.1375 .... 864.1375 819.0125 .... 864.0125 152.06 ...... 158.52 152.60 ...... 157.86 820.1375 .... 865.1375 820.0125 .... 865.0125 or subscriber stations (fixed, temporary 152.09 ...... 158.55 152.63 ...... 157.89 fixed, surface and/or airborne mobile) as 152.12 ...... 158.58 152.66 ...... 157.92 indicated, for voice-grade general 152.15 ...... 158.61 152.69 ...... 157.95 * * * * * 152.18 ...... 158.64 152.72 ...... 157.98 communications and private line 152.21 ...... 158.67 152.75 ...... 158.01 §22.905 [Corrected] service: 152.51 ...... 157.77 152.78 ...... 158.04 152.54 ...... 157.80 152.81 ...... 158.07 On page 59561, in the first column, in Central Subscriber Central Subscriber §22.905, the table should read as UHF Channels follows: 488.425 ...... 491.425 488.575 ...... 491.575 488.450 ...... 491.450 488.600 ...... 491.600 * * * * * 488.475 ...... 491.475 488.625 ...... 491.625 454.025 ...... 459.025 454.350 ...... 459.350 488.500 ...... 491.500 488.650 ...... 491.650 454.050 ...... 459.050 454.375 ...... 459.375 Base Mobile Base Mobile 488.525 ...... 491.525 488.675 ...... 491.675 454.075 ...... 459.075 454.400 ...... 459.400 488.550 ...... 491.550 488.700 ...... 491.700 454.100 ...... 459.100 454.425 ...... 459.425 CHANNEL BLOCK A 454.125 ...... 459.125 454.450 ...... 459.450 416 communication channel pairs 454.150 ...... 459.150 454.475 ...... 459.475 (3) These channels may be assigned 454.175 ...... 459.175 454.500 ...... 459.500 869.040 ...... 824.040 890.010 ...... 845.010 869.070 ...... 824.070 890.040 ...... 845.040 for use by relay stations in systems 454.200 ...... 459.200 454.525 ...... 459.525 | | | | where it would be impractical to 454.225 ...... 459.225 454.550 ...... 459.550 | | | | provide offshore radiotelephone service 454.250 ...... 459.250 454.575 ...... 459.575 879.990 ...... 834.990 891.480 ...... 846.480 454.275 ...... 459.275 454.600 ...... 459.600 without the use of relay stations. 21 control channel pairs 454.300 ...... 459.300 454.625 ...... 459.625 454.325 ...... 459.325 454.650 ...... 459.650 834.390 ...... 879.390 Central Subscriber Central Subscriber 834.420 ...... 879.420 | | 488.725 ...... 491.725 488.775 ...... 491.775 | | * * * * * 488.750 ...... 491.750 488.800 ...... 491.800 834.990 ...... 879.990 9892 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Corrections (4) These channels may be assigned Central Subscriber Central Subscriber Central Subscriber Central Subscriber for use by offshore central (base/fixed) 489.400 ...... 492.400 489.725 ...... 492.725 485.500 ...... 482.500 486.500 ...... 483.500 or subscriber stations (fixed, temporary 489.425 ...... 492.425 489.750 ...... 492.750 485.525 ...... 482.525 486.525 ...... 483.525 fixed, surface and/or airborne mobile) as 489.450 ...... 492.450 489.775 ...... 492.775 485.550 ...... 482.550 484.550 ...... 483.550 indicated, for emergency 489.475 ...... 492.475 489.800 ...... 492.800 485.575 ...... 482.575 486.575 ...... 483.575 489.500 ...... 492.500 489.825 ...... 492.825 485.600 ...... 482.600 486.600 ...... 483.600 communications involving protection of 489.525 ...... 492.525 489.850 ...... 492.850 485.625 ...... 482.625 486.625 ...... 483.625 489.550 ...... 492.550 489.875 ...... 492.875 485.650 ...... 482.650 486.650 ...... 483.650 life and property. 489.575 ...... 492.575 489.900 ...... 492.900 485.675 ...... 482.675 486.675 ...... 483.675 489.600 ...... 492.600 489.925 ...... 492.925 485.700 ...... 482.700 486.700 ...... 483.700 Central Subscriber Central Subscriber 489.625 ...... 492.625 489.950 ...... 492.950 489.650 ...... 492.650 489.975 ...... 492.975 485.725 ...... 482.725 486.725 ...... 483.725 488.825 ...... 491.825 488.875 ...... 491.875 489.675 ...... 492.675 490.000 ...... 493.000 485.750 ...... 482.750 486.750 ...... 483.750 488.850 ...... 491.850 488.900 ...... 491.900 489.700 ...... 492.700 485.775 ...... 482.775 486.775 ...... 483.775 485.800 ...... 482.800 486.800 ...... 483.800 (5) These channels may be assigned 485.825 ...... 482.825 486.825 ...... 483.825 * * * * * 485.850 ...... 482.850 486.850 ...... 483.850 for use by offshore central (base/fixed) (b) Zone B—Southern Louisiana— 485.875 ...... 482.875 486.875 ...... 483.875 or subscriber stations (fixed, temporary Texas. (1) The geographical area in Zone 485.900 ...... 482.900 486.900 ...... 483.900 485.925 ...... 482.925 486.925 ...... 483.925 fixed, surface and/or airborne mobile) as B is bounded as follows: indicated, for emergency auto alarm and 485.950 ...... 482.950 486.950 ...... 483.950 From longitude W.87°45′ on the East to 485.975 ...... 482.975 486.975 ...... 483.975 voice transmission pertaining to ° ′ 486.000 ...... 483.000 487.050 ...... 480.050 emergency conditions only. longitude W.95 00 on the West and from the 4.8 kilometer (3 mile) limit along the Gulf of * * * * * Central Subscriber Mexico shoreline on the North to the limit of the Outer Continental Shelf on the South. (c) Zone C—Southern Texas. The 488.950 ...... 491.950 (2) These channels may be assigned geographical area in Zone C is bounded as follows: (6) These channels may be assigned for use by offshore central (base/fixed) for use by offshore central (base/fixed) or subscriber stations (fixed, temporary Longitude W.94°00′ on the East, the 4.8 or subscriber stations (fixed, temporary fixed, surface and/or airborne mobile) as kilometer (3 mile) limit on the North and fixed, surface and/or airborne mobile) as indicated, for voice-grade general West, a 282 kilometer (175 mile) radius from indicated, for emergency shut-off remote communications and private line the reference point at Linares, N.L., Mexico ° ′ control telemetry, environmental data service: on the Southwest, latitude N.26 00 on the acquisition and disseminations, or South, and the limits of the outer continental Central Subscriber Central Subscriber facsimile transmissions. shelf on the Southeast. 485.025 ...... 482.025 486.025 ...... 483.025 Central Subscriber Central Subscriber 485.050 ...... 482.050 486.050 ...... 483.050 (1) These channels may be assigned 485.075 ...... 482.075 486.075 ...... 483.075 for use by offshore central (base/fixed) 489.000 ...... 492.000 489.200 ...... 492.200 485.100 ...... 482.100 486.100 ...... 483.100 or subscriber stations (fixed, temporary 489.025 ...... 492.025 489.225 ...... 492.225 485.125 ...... 482.125 486.125 ...... 483.125 489.050 ...... 492.050 489.250 ...... 492.250 485.150 ...... 482.150 485.150 ...... 483.150 fixed, surface and/or airborne mobile) as 489.075 ...... 492.075 489.275 ...... 492.275 485.175 ...... 482.175 486.175 ...... 483.175 indicated, for emergency auto alarm and 489.100 ...... 492.100 489.300 ...... 492.300 485.200 ...... 482.200 486.200 ...... 483.200 489.125 ...... 492.125 489.325 ...... 492.325 485.225 ...... 482.225 486.225 ...... 483.225 voice transmission pertaining to 489.150 ...... 492.150 489.350 ...... 492.350 485.250 ...... 482.250 486.250 ...... 483.250 emergency conditions only. 489.175 ...... 492.175 489.375 ...... 492.375 485.275 ...... 482.275 486.275 ...... 483.275 485.300 ...... 482.300 486.300 ...... 483.300 Central Subscriber (7) These channels may be assigned 485.325 ...... 482.325 486.325 ...... 483.325 485.350 ...... 482.350 486.350 ...... 483.350 476.950 ...... 479.950 for use by offshore central (base/fixed) 485.375 ...... 482.375 486.375 ...... 483.375 or subscriber stations (fixed, temporary 485.400 ...... 482.400 486.400 ...... 483.400 485.425 ...... 482.425 486.425 ...... 483.425 * * * * * fixed, surface and/or airborne mobile) as 485.450 ...... 482.450 486.450 ...... 483.450 indicated, for private line service: 485.475 ...... 482.475 486.475 ...... 483.475 BILLING CODE 1505±01±D federal register February 22,1995 Wednesday Alaska; FinalRule Grazing Administration;Exclusiveof Procedures; CooperativeRelations; Department HearingsandAppeals 43 CFRParts4,1780,and4100 Bureau ofLandManagement Office oftheSecretary Interior Department ofthe Part II 9893 9894 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations DEPARTMENT OF THE INTERIOR livestock grazing on public rangelands. approach to rangeland management. The provisions of this rule will ensure Similar meetings and follow-up Office of the Secretary proper administration of livestock discussions took place in Idaho, Oregon, grazing on the public rangelands. Many and Nevada, in addition to meetings in 43 CFR Part 4 of the provisions will result in greater Arizona, New Mexico, Utah and consistency between the administration Wyoming. These meetings with the Bureau of Land Management of grazing on public rangelands by BLM Secretary involved hundreds of hours of 43 CFR Parts 1780 and 4100 and administration of grazing on discussion. National Forest System lands by the On March 25, 1994, the Department [WO±400±1110±00 24 1A] United States Forest Service (Forest published proposed rules in the Federal RIN 1004±AB89 Service). The rule is promulgated under Register (59 FR 14314), with a 120 day the principal authorities of the Federal comment period to July 28, 1994. Department Hearings and Appeals Land Policy and Management Act Subsequently, at the request of Procedures; Cooperative Relations; (FLPMA) of 1976 (43 U.S.C. 1739, 1740), commenters, the comment period was Grazing AdministrationÐExclusive of and the Taylor Grazing Act of 1934 extended through September 9, 1994. Alaska (TGA) (43 U.S.C. 315a–r). On May 13, 1994, the Department An advance notice of proposed published in the Federal Register (59 AGENCY: Office of the Secretary and the rulemaking was published in the FR 25118) a notice of availability of the Bureau of Land Management, Interior. Federal Register on August 13, 1993 (58 draft EIS. Approximately 11,000 copies ACTION: Final rule. FR 43208). A notice of intent to prepare of the draft EIS were mailed to State and an associated environmental impact Federal legislators, western governors, SUMMARY: This final rule amends the statement (EIS) was also published in major industry and environmental regulations that govern how the the Federal Register on July 13, 1993 groups, the media, individuals who had Secretary of the Interior, through the (58 FR 37745). The Department also commented on the advance notice of Bureau of Land Management (BLM), developed a booklet entitled Rangeland proposed rulemaking, and anyone else administers livestock grazing. This rule Reform ’94, describing the Department who requested a copy. All BLM applies to all lands on which BLM of the Interior’s (Department) proposal. permittees and lessees were mailed an administers livestock grazing. This rule Approximately 35,000 copies were executive summary, and provided a also amends the Department of the distributed in late August and copy of the full document on request. Interior’s appeals regulations pertaining September of 1993 to all BLM grazing Copies were also available through all to livestock grazing to provide permittees and lessees, interested BLM State Offices as well as Forest consistency with administrative Congressional staff, and other interested Service Regional Offices. The draft EIS remedies provided for in the grazing parties. The Department received a total analyzed in detail the proposed action regulations, increases public of about 12,600 letters from about 8,000 and alternatives for improving the participation in the management of the persons on the advance notice of management of the Nation’s public public grazing lands, and amends the proposed rulemaking, notice of intent to rangelands, including the proposed rule regulations on cooperative relations to prepare an EIS, and the Rangeland changes. On June 8, 1994, BLM and the reflect changes in the organization of Reform ’94 summary booklet. The Forest Service held 48 hearings certain advisory committees. The Department considered these comments throughout the West on the draft EIS changes will improve the management in identifying and refining key and the proposed rulemakings; one of the Nation’s public rangeland components of the rangeland hearing was also held that day at BLM’s resources. improvement effort and in preparing a Eastern States Office in Virginia. DATES: This rule will be effective August proposed rule and a draft EIS. Hearings were preceded by open houses 21, 1995. During a three-month period staffed by Federal personnel to answer Section 4130.8–1(d) will not be beginning November 17, 1993, Secretary individual questions about the proposed implemented until the grazing year of the Interior Bruce Babbitt (Secretary) rule. The location and procedures for beginning March 1, 1996. met on 20 occasions around the West the open houses and hearings were ADDRESSES: Inquiries should be sent to with groups that included western published in the May 16, 1994, Federal the Director, Bureau of Land governors, State and local officials, Register and announced in news Management, U.S. Department of the ranchers, environmentalists and other releases. More than 1,900 people Interior, Room 5555, Main Interior public land users. He visited local testified at the hearings. A transcript Building, 1849 C Street NW., groups in Colorado, Wyoming, and was made of each hearing. The Washington, DC 20240. Oregon who were already engaged in transcripts are part of the public addressing how land management comment record and were considered FOR FURTHER INFORMATION CONTACT: decisions should be made, and during preparation of this final rule. Charles Hunt, 202–208–4256. participated in extensive discussion The Department received and SUPPLEMENTARY INFORMATION: about the components of rangeland considered more than 20,000 letters I. Introduction improvement. These meetings resulted from over 11,000 persons on the notice II. Major Elements of the Department’s in many productive suggestions that of proposed rulemaking and the draft Program To Promote Healthy Rangelands were reflected in the proposed rule. EIS. These letters included over 38,000 III. Summary of Rules Adopted Additionally, at the invitation of individual comments. The specific IV. General Comments aspects of the notice of proposed V. Section-by-Section Analysis and Colorado’s Governor Roy Romer, the Responses to Public Comments Secretary met on nine separate rulemaking generating the most VI. Procedural Matters occasions with a group of Colorado comments were the definitions, grazing VII. Regulatory Text State and local officials, ranchers, fees, standards and guidelines for conservationists and other land users in grazing, and Resource Advisory I. Introduction Denver and Gunnison, Colorado, for Councils (RACs). The objectives This rule governs the Bureau of Land discussions regarding a process for statement, mandatory qualifications, Management’s (BLM) administration of building a consensus-driven local cooperative range improvement Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9895 agreements, water rights, permits, and improvements in the management of our enhanced community-based prohibited acts also generated a great public lands. involvement in rangeland management number of comments. Many letters Under FLPMA, the Secretary is prepared by the Colorado Working expressed opinions that the overall required to involve the public in many Group on rangeland improvement. This rangeland improvement proposal was a phases of public land management, Working Group was convened by disincentive for good stewardship, including the development of Governor Roy Romer, and met between would have major economic impacts on regulations (section 102) and plans and November 1993 and January 1994. rural western communities, and would programs (section 202). Section 309 Although the Working Group result in the ‘‘taking’’ of private authorizes the Secretary to provide for considered this an experimental property. Others supported aspects of public participation in the preparation approach that might not be applicable to the proposal, such as broadening and execution of plans and programs for other western States, the Working participation in the decisionmaking the management of public lands by Group’s model contained a number of process, requiring permittees or lessees establishing advisory councils that excellent ideas, which, in the to be good stewards, cancellation of conform to the requirements of the Department’s judgement, other States permits for nonuse, and nonmonetary Federal Advisory Committee Act might find useful in developing their settlement of minor violations. All (FACA). own structures for public participation. original letters and transcripts have Consistent with these provisions, the During the comment period, the been kept on file in sequential order. proposed rule gave extensive Department also received a number of On December 30, 1994, the consideration to public participation in suggestions concerning public Department published in the Federal rangeland management. It proposed the participation from Governor Mike Register a notice of availability of the creation of RACs in most BLM Sullivan of Wyoming who had Final EIS (FEIS). The agency mailed administrative districts which would be convened a Steering Committee on the over 14,000 individual copies to Federal involved in the development of Management of Federal Lands. While agencies, United States Senators and standards and guidelines for grazing. the Committee noted that it did not Representatives, the western governors, The RACs would have had the option of reach unanimity on all issues, the model major environmental and industry establishing rangeland resource teams for public participation proposed by the groups, individuals who commented and technical review teams for the group also contained many excellent either on the draft EIS or the notice of purpose of providing input to be used ideas. The Wyoming and Colorado proposed rulemaking or testified at the by the RACs in developing documents were extremely helpful to field hearings, and anyone else who recommendations. The RACs could BLM in formulating this final rule, and requested copies. Copies are available request that the Secretary respond the Department appreciates the work of from any BLM Resource Area office or directly to their concerns if the council the individuals who participated in believed its advice was being arbitrarily Forest Service Forest Office throughout these efforts. Two models of public disregarded. RAC members would be the western States. participation included in the final rule required to avoid conflicts of interest were based heavily on the Wyoming and II. Major Elements of the Department’s and to disclose direct or indirect Colorado proposals. The Wyoming and Program to Promote Healthy interests in Federal grazing permits or Colorado proposals suggested that Rangelands leases, and to have experience or increased flexibility was needed in the This section presents the general knowledge of the geographic area under development of final requirements for provisions of the Department’s program the purview of the council. public participation in rangeland to improve the public land grazing Many comments were received on the management. In response to these and program. concept of public participation. Almost all commenters supported the central other comments the Department has Public Participation in Rangeland principle—that public participation in attempted to develop a final rule that Management decisionmaking on rangeland provides maximum flexibility for Allowing more Americans to have a management should be enhanced. structuring the public participation say in the management of their public Comments on specific details of the process. lands is an important element of proposal varied widely. Many FLPMA directs the Secretary to improving the management of the commenters stressed their belief that the establish advisory councils of not less public rangelands. The American proposal was too complex and the than 10 and not more than 15 members. rangelands can be—and are—used for resulting structure would create major Members must be appointed from far more than grazing. Hiking, birding, administrative and resource needs among representatives of the various camping, fishing, hunting, mountain without significant benefits. Other major major citizens’ interests concerned with biking and mineral development comment themes addressed problems relating to land use planning, activities are among the activities that representation of various interests on all or with the management of the public are compatible with sound grazing levels, requirements that members have lands located within the area for which practices. Section 102(a)(8) of FLPMA local expertise, residency requirements, an advisory council is established. At makes it clear that the Secretary is to ability of the committees to participate least one member must be a publicly manage the public lands in a manner in the development of standards and elected official. The Department that will protect the quality of scientific, guidelines, the opportunity for the envisions that the RACs formed in each scenic, historical, ecological, councils to request the Secretary to State under the final rule will fulfill environmental, air, atmospheric, water review issues, and the applicability of these statutory requirements. The RACs resource, and archeological values. the FACA to the rangeland resource would also be subject to FACA (5 U.S.C. The Department believes that the teams and technical review teams, Appendix). public interest will be best served if a among others. These comments are The rules as finalized today are wide range of interests are represented discussed in more detail in the section- designed to implement certain basic when decisions are being made. Thus, by-section analysis of this preamble. requirements that are essential to increased public participation is The proposed rule also included a fulfilling the requirements of FACA, essential to achieving lasting detailed discussion of a model for FLPMA, and the needs of the 9896 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Department’s program to improve experience or expertise and have a based heavily on the suggestions made management of the public rangelands: commitment to collaborative effort, by the Colorado Working Group. It —A RAC of 10–15 members, as required successful resolution of resource includes three levels of groups—the by § 309 of FLPMA; management issues and application of RAC itself, local five member rangeland —Openness and balance as required by the relevant law. Members must have resource teams appointed by the RAC FACA, assuring participation of experience or knowledge of the based either on its own initiative or as commodity, environmental, and other geographic area under the purview of a result of local requests, and technical interests; the council, must be residents of a State review teams established directly by —Consensus decisionmaking, with a in which the area covered by a RAC is BLM to solve specific, short-term majority of each group required to located, and must be supported by technical issues. The RACs would have send recommendations forward; letters of recommendation from the 15 members and would be established —A RAC that is strictly advisory, as groups or interests they will represent. on BLM District boundaries, ecoregions, required by FACA and other statutes. An individual may serve on only one or resource areas. A 60% vote of the Consistent with many comments RAC. All members must receive training RAC membership (including a majority received, the rule provides a high degree on issues related to rangeland of each category of users) would be of flexibility so that decisions can be management. required to send suggestions to BLM. All RACs will be required to have Model B is based heavily on the made locally about how to structure the specified quorum and voting rules, suggestions made by the Wyoming councils. Section 1784.6–1 of this final including the requirement that a Steering Committee. It includes 3 levels rule sets forth basic requirements that majority of members from each category of groups—the 15 member RAC, formed must be met by all councils. Three support a proposal before a on either a Statewide or ecoregion basis, general interest groups will be recommendation can be forwarded to a more local 10 member rangeland represented, from which 10 to 15 the authorized officer. Travel and per resource team formed by the RAC, and members must be chosen in a balanced diem will be paid, and BLM will technical review teams established fashion. The first group includes various provide administrative support for the directly by BLM to solve specific, short- commodity industries, such as grazing councils. A BLM employee will be term technical issues. In addition to and mineral interests, and other named ‘‘designated Federal officer’’ as requiring membership to be balanced interests that benefit from use of public required by FACA. among the commodity, environmental lands, such as outfitters. The second All members of the council will be and local interest groups specified in group includes nationally or regionally subject to conflict of interest provisions. § 1784.6–1(c), the RAC would include recognized environmental or resource To facilitate implementation of Federal individuals representing wildlife, conservation groups, wild horse and conflict of interest requirements, grazing, minerals and energy, and burro interest groups, archeological and council members will have to disclose established environmental interests. An historical interests, and representatives their direct or indirect interest in BLM 80% vote of the RAC membership of dispersed recreational activities, such leases, licenses, permits or contracts. (including a majority of each interest as birders or hikers. The third group This does not mean that individuals group) would be required to send includes persons who hold State, with such interests cannot serve on suggestions to BLM. county, or local elected office, the councils; however, no member can Model C was developed by BLM in public-at-large, Indian tribes within or participate in specific issues in which response to additional issues raised by adjacent to the area covered by the he or she has an interest. the commenters. In addition to the advisory council, natural resource or The role of the RAC is to provide requirements specified in § 1784.6–1, natural science academia, and State advice to BLM. Each RAC will focus on this model accommodates formation of agencies responsible for the the full array of multiple use issues the RACs, and any type and number of management of fish and wildlife, water associated with public lands within its subgroups as needed. The RAC can be quality, water rights, and State lands. area of jurisdiction. They will consult formed along State, BLM district, or RAC members will be appointed by on the preparation of standards and ecoregion boundaries. A majority of the Secretary. This is a requirement of guidelines for grazing administration. each of the three categories of users both FLPMA and FACA. Governors of The RACs will advise the Secretary and must vote affirmatively to send States in which the councils will be BLM—and other agencies as suggestions to BLM. General function organized will be requested to provide appropriate—on matters relating to subgroups at the local level can be a list of nominees for the Secretary’s multiple use issues associated with formed on the initiative of the RAC or consideration. The Secretary encourages public lands and resources. They will by local initiative. Special function Governors to formulate nominations also provide advice on preparation, groups formed to solve special technical through a process open to the public. In amendment, and implementation of problems would be constituted by BLM addition, a public call for nominations land use management plans and activity on its own initiative or in response to will be made through a notice in the plans and consult in planning for range requests from RACs or any of the Federal Register and other appropriate development and improvement subgroups under the RACs. publications. Persons can nominate programs. RACs will not provide advice The Department expects that most, if themselves for membership. on internal BLM management concerns not all, public land managed by BLM Membership of each RAC will reflect a such as personnel or budget will fall under the purview of one of balance of views to ensure that the expenditures. these councils. Exceptions will be made council represents the full array of Final § 1784.6–2 provides three where BLM State Director determines issues and interests within the area models that supply additional detail on that there is insufficient interest to form covered by the council associated with the structuring of public participation. a council or that it would be impossible public land use, management, Decisions about which model will be for such a council to have effective protection and an understanding of the used in particular areas will be made by participation due to the location of the Federal laws and regulations governing the State Directors of BLM, in public lands with respect to the public lands. Individuals can qualify to consultation with affected Governors population. Implementation of the serve on a RAC if they possess relevant and other interested parties. Model A is principles discussed above will result in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9897 enhanced public involvement in existing before the effective date of this definition and implementation of rangeland management, as envisioned rule is not affected. conservation use. throughout FLPMA. The final rule adopts without change Interested public. An important The Department intends to start using the language of the proposed rule element of rangeland improvement the RACs for advice shortly after the relating to water rights. The final rule involves facilitating effective public rule becomes effective on August 21, provides consistent direction for BLM participation in the management of 1995. This will require the selection of regarding water rights on public lands public lands. To implement this goal, the advisory council model for each for livestock watering purposes. It is the term ‘‘affected interests’’ is removed State and the nomination of advisory intended to make BLM’s policy throughout the rule and replaced with council members within the six-month consistent with Forest Service practice, the term ‘‘interested public.’’ The rule period before this rule becomes and with BLM policy on asserting water also removes the authorized officer’s effective. The decision regarding which rights for livestock grazing prior to discretion to determine whether an advisory council model will be changes in the early 1980’s. This section individual meets the standards for implemented in each State will be based provides that the United States will ‘‘affected interest’’ status. The final rule on recommendations from BLM State acquire, perfect, maintain, and adopts the definition of ‘‘interested Directors following consultation with administer water rights obtained on public’’ as set forth in the proposed rule. the respective Governors and input from public land for livestock grazing on This change provides a consistent the public. Once the preferred model is public land in the name of the United standard for participation by the public identified, the internal process of States to the extent allowed by State in decisions relating to grazing. Any developing the council charters can law. Some States, such as Wyoming, party who writes to the authorized begin. The Department will also seek grant public land livestock grazing officer to express concern regarding the management of livestock grazing on nominations for membership on the water rights in the name of the specific grazing allotments will be advisory councils from Governors and landowner but also, in situations where recognized as a member of the through a public call for nominations, the grazing lessee or permittee of State ‘‘interested public.’’ pursuant to 43 CFR 1784.4–1. Finally, or Federal public land applies for a charters for the advisory councils will Requirements for consultation with water right on that land, automatically the interested public have been added be drafted and reviewed by the include the State or Federal landowner Department, the Office of Management in various sections of the rule, including as co-applicant. After consideration of those that deal with permit issuance, and Budget, and the General Services public comment and further analysis, Administration. The timely renewal and modification, increasing we have determined that co-application establishment of the advisory councils and decreasing permitted use, and or joint ownership will be allowed will help ensure that there is adequate development of activity plans and range where state policy permits it; for time for the councils to participate in improvement programs. example, the Wyoming policy is developing State or regional standards Appeals. Comments on the appeals consistent with the rule. Development and guidelines. procedures contained in the proposed of new water sources on public lands rule suggested that the provisions were Range Improvements and Water Rights associated with a grazing permit or lease not clear. A number of changes have The final rule conforms with common will be subject to cooperative range been made in the final rule to clarify the law concepts regarding retention of the improvement agreements as provided in provisions. Most importantly, the final title of permanent improvements in the section § 4120.3–2. rule now references existing procedures name of the party that holds title to the The rule adopted today will be in 43 CFR part 4, rather than repeating land. Accordingly, after August 21, prospective. The final rule does not language from that part. 1995, the title to all new grazing-related create any new Federal reserved water Under the final rule, persons choosing improvements constructed on public rights, nor will it affect valid existing to appeal a decision of the authorized lands, or improvements related to the water rights. Any right or claim to water officer will normally be provided a 30- vegetation resource of public lands, on public land for livestock watering on day period in which to file an appeal. except temporary or removable public land by or on behalf of the Appellants may also petition the improvements, will be in the name of United States will remain subject to the Director of the Office of Hearings and the party that holds title to the land, i.e. provisions of 43 U.S.C. 666 (the Appeals (OHA), or the Interior Board of the United States. This provides McCarran Amendment) and section 701 Land Appeals (IBLA) to stay the consistent direction within BLM and of FLPMA (43 U.S.C. 1701 note; decision until the appeal is decided. makes BLM practice consistent with disclaimer on water rights). Finally, the Where a petition for stay has been filed that of the Forest Service. Permanent final rule does not change existing BLM with an appeal, the Department’s OHA range improvements will be approved policy on water rights for uses other has 45 days from the expiration of the through a cooperative range than public land grazing, such as 30-day appeal period either to grant or improvement agreement. A permittee’s, irrigation, municipal, or industrial uses. deny the petition for stay, in whole or lessee’s, or cooperator’s interest for Administrative Practices in part. Thus, in cases where a person contributed funds, labor, and materials has filed a petition for stay of the will be documented. This With this final rule, BLM has made a decision of the authorized officer along documentation is necessary to ensure number of changes to improve the with an appeal, and where the request proper credit for purposes of administration of grazing on lands for stay is denied, implementation of the reimbursement pursuant to section managed by BLM. These changes decision would be delayed up to 75 402(g) of FLPMA, which requires principally affect public participation in days. In the event a stay of the decision compensation for the permittee’s or range decisions, administrative appeals is granted in whole or in part, the lessee’s authorized permanent and implementation of decisions, decision will be stayed until such time improvements whenever a permit or disqualification of applicants for grazing as a determination on the appeal is lease is cancelled, in whole or in part, permits and leases based on a prior made. in order to devote the lands to another record of noncompliance, acts This rule clarifies that the authorized public purpose. Title to improvements prohibited by the regulations, and the officer can issue final decisions and 9898 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations place them in effect immediately when prohibited acts. Penalties applicable to manage grazing operations properly, it is necessary to protect rangeland prohibited acts are set forth in § 4170. provided that the conservation use is resources from damage in situations The proposed rule amended the list of consistent with land use plans. described under § 4110.3–3(b). The rule prohibited acts to include violations of Allotments in conservation use will not also adds a provision that decisions to Federal and State laws and regulations be subject to grazing fees since no forage close areas to specified kinds of concerning water pollution, certain will be consumed by livestock. livestock use when it is necessary to predator control activities; application However, permittees and lessees abate unauthorized use, as provided in or storage of pesticides, herbicides or requesting conservation use will be § 4150.2(d), may be issued as final other hazardous materials; alteration or required to maintain existing decisions. In these cases, the permittee destruction of natural stream courses; improvements so that when the or lessee will still have 30 days to wildlife destruction; and removal or allotment is returned to actual use such appeal the decision and petition for a destruction of archeological resources. It improvements will be in good working stay, and the OHA will have 45 days to also added violations of State laws order. A service charge can be charged evaluate the petition; however, the regarding the stray of livestock to the for conservation use, as it is for actual decision will be in effect on the date list. use. Conservation use will be initiated specified in the decision and will The final rule adopts these provisions. by request of the permittee or lessee. remain in effect unless a stay is granted. It does not attempt to list in the text of The BLM will not impose conservation The objective of placing decisions in the regulations all of the specific use on an unwilling permittee or lessee. immediate effect under the Federal and State laws which, if The advantage of conservation use to circumstances specified in the rule is to violated, could constitute prohibited the operator is that it allows increased provide for timely action to benefit acts. A list of such laws was included flexibility. The operator will be able to rangelands and to reduce administrative in the preamble to the proposed rule at enjoy the benefits of a long-term rest of delays. The rule does not take away the 59 FR 14323–4. It is not the intent of the allotment from grazing while ability of affected parties to file an this rule for the authorized officer to preserving the ability to resume grazing appeal, as provided by Section 9 of take direct enforcement action under the in the future. During the conservation TGA, or to request a stay of the decision provisions of these laws; or to take use, BLM will not consider allowing enforcement steps involving the grazing until such time as the appeal is decided. another operator to use any resulting permit or lease for any and all The Department believes making forage. violations, no matter how de minimis or Resource Management Requirements, decisions under §§ 4110.3–3(b) and technical; or for violations of laws that, Including Standards and Guidelines. 4150.2(d) effective immediately under while they do deal with violations of The final rule adopts the substance of the standards provided for in this final State and Federal laws dealing with the provisions proposed in subpart rule is critical to meeting the goals of water pollution and other matters, do 4180. The Department has reorganized sound rangeland management. not reflect meaningfully upon the ability and rewritten the subpart to improve Qualifications. The final rule makes of the permittee or lessee to be a good clarity and incorporate more fully a no substantive change from the steward of the public lands. The final watershed management approach. proposed rule. It includes a provision to rule clarifies that violations of these The Fundamentals of Rangeland disqualify applicants for new or State and Federal laws would constitute Health. The final rule establishes the additional grazing permits and leases if: prohibited acts only where three fundamentals of rangeland health for (1) The applicant or affiliate has had any conditions are met: (1) The violations grazing administration (formerly Federal grazing permit or lease, or any involve or affect BLM lands; (2) the referred to as the national State grazing permit or lease within the violation is related to grazing use requirements). These fundamentals grazing allotment for which a Federal authorized by a permit or lease, and (3) address the necessary physical permit or lease is sought, cancelled for the permittee or lessee has been components of functional watersheds, violation of the permit or lease within convicted or otherwise found to be in ecological processes required for the 36 calendar months immediately violation of the State or Federal laws by healthy biotic communities, water preceding the date of application; or (2) final court or agency action. The final quality standards and objectives, and the applicant or affiliate is barred from rule also moves similar provisions habitat for threatened or endangered holding a Federal grazing permit or regarding the Bald Eagle Protection Act, species or other species of special lease by order of a court of competent the Endangered Species Act (ESA), and interest. The Department believes that jurisdiction. the Wild Free-roaming Horse and Burro these provisions are critical to ensuring These requirements do not apply to Act from § 4170 to § 4140 to increase that BLM’s administration of grazing applicants for renewal of grazing clarity and readability. helps preserve currently healthy permits or leases. The final rule gives Conservation use. The final rule rangelands and restore healthy the authorized officer the authority to adopts the proposed definition with one conditions to those areas that currently consider whether an applicant for clarifying change. Conservation use are not functioning properly, especially renewal is in substantial compliance benefits the range by facilitating riparian areas. with the terms and conditions of the improvement in forage conditions, Where it is determined that existing permit or lease for which renewal is watersheds, riparian areas, and so on. It grazing management needs to be sought. provides flexibility that is needed to modified to ensure that the conditions Prohibited acts. The final rule adopts enable permittees or lessees to of healthy rangelands set forth in provisions of the proposed rule, except undertake activities on a portion or all § 4180.1. Fundamentals of rangeland that provisions from § 4170.1–3, as of an allotment to promote resource health, are met or significant progress is proposed, have been moved to a new protection or enhancement, which being made to meet these conditions, paragraph in § 4140.1. Minor clarifying includes making progress toward the authorized officer must take changes are also made. As in the resource condition objectives. appropriate action as soon as practical, proposed rule, Subpart 4140, The Department believes that this but not later than the start of the next ‘‘Prohibited Acts,’’ is revised to modify provision will provide permittees and grazing season. This may include the list of actions that are defined as lessees with an additional tool to actions such as reducing livestock Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9899 stocking rates, adjusting the season or guidelines. Appropriate actions may standards and guidelines may be duration of livestock use, or modifying include reducing livestock stocking consistent with existing land use plans or relocating range improvements. rates, adjusting the season or duration of and implementation may proceed State or Regional Standards and livestock use, or modifying or relocating without further action. In many cases, Guidelines. Standards and guidelines range improvements. however, land use plans will require are to be developed for an entire State Fallback Standards and Guidelines. modification to ensure conformance or for an area encompassing portions of The Department recognizes the with the land use plan and the more than one State, except where the importance of putting standards and standards and guidelines. The geophysical or vegetal character of an guidelines in place in a timely manner, Department intends to develop State or area is unique and the health of the and has provided a mechanism for regional standards and guidelines, rangelands will not be ensured by using doing so in this rule. This final rule complete plan conformance tests, and standards and guidelines developed for includes a provision for fallback undertake necessary plan amendments a larger geographical area. The standards and guidelines that would within 18 months of the effective date geographical area covered will be become effective 18 months after this of this rule. State or regional standards determined by BLM State Directors in rule becomes effective in the event that and guidelines will be implemented as consultation with affected RACs. State or regional standards and they are finalized and approved by the State or regional standards and guidelines have not been developed and Secretary. guidelines will be developed, under the put into effect. They will remain in umbrella of the fundamentals and effect until State or regional standards The Federal Grazing Fee and Subleasing consistent with the guiding principles of and guidelines are in effect. Grazing fees. The fee portion of the this final rule, to provide specific The fallback standards and guidelines proposed rule generated numerous measures of rangeland health and to address largely the same factors that are public comments with diverse and identify acceptable or best management provided in the guiding principles for conflicting views about the impact of an practices in keeping with the the development of the State or regional increased fee and the calculation of the characteristics of a State or region such standards and guidelines. The fallback fee formula. The Department has as climate and landform. The standards include more detail regarding decided not to promulgate the fee preparation of standards and guidelines the conditions that would exist under increase provision of the proposed rule will involve public participation and each of the factors when rangelands are in order to give the Congress the consultation with RACs, Indian tribes, in a healthy, functional condition than opportunity to hold additional hearings and Federal agencies responsible for the do the guiding principles for State or on this subject and to enact legislation management of lands within the regional standards discussed above. addressing appropriate fees for grazing affected area. Similarly, the fallback guidelines on public lands. Other changes not The guiding principles for the include grazing management practices pertaining to fees proposed in section development of standards presented in while the guiding principles for State or 4130.7–1, redesignated as § 4130.8–1 in this final rule pertain to the factors regional guidelines refer more generally the final rule, remain a part of this needed to help achieve rangeland to the types of concerns to be addressed. rulemaking package. health. More specifically, the factors The BLM State Directors can adjust the As proposed, this section would have relate to watershed function, threatened fallback standards and guidelines, been amended by revising the grazing or endangered species and candidate subject to approval of the Secretary, to fee formula, with a provision for species, habitat for native plant and fit State or local conditions. phasing in the grazing fee increase over animal populations, water quality and Fallback standards and guidelines the years 1995 through 1997. The the distribution of nutrients and energy will be applied in the same manner as proposed rule provided for a 30% flow. The guiding principles for standards and guidelines developed for incentive fee reduction. The incentive guidelines direct the identification of a particular State or region, which are was to have been implemented after acceptable or best grazing management discussed above. BLM developed separate rules practices that will result in or ensure NEPA and Implementation of describing the eligibility criteria for this significant progress towards fulfillment Standards and Guidelines. The incentive based fee. The proposed rule of the standards. fundamentals of rangeland health also provided that the full fee increase State or regional standards and proposed in this rule, and all standards would not go into effect in the event guidelines will provide the resource and guidelines whether fallback, State, that a separate final rule prescribing measures and guidance needed to or regional, will be implemented subject qualification criteria for the incentive- develop terms and conditions of to the National Environmental Policy based fee was not completed. Multiple- permits, leases, and other Act of 1969 (NEPA) and applicable land year billing would have been allowed in authorizations, AMPs and other activity use planning regulations. The certain circumstances. In addition, the plans, cooperative range improvement fundamentals of rangeland health, the proposed rule provided for a 25 percent agreements and to issue range guiding principles for the development cap on changes in the calculated fee improvement permits in a manner that of State and regional standards and from year to year. These proposals are will result in maintaining or making guidelines and the fallback standards not adopted in the final rule. significant progress toward healthy, and guidelines were analyzed in the As adopted by today’s action, Section functional rangelands. FEIS for this final rulemaking. Any 4130.8–1 clarifies the definition of Once standards and guidelines are in additional NEPA analysis required billing unit, provides for assessing a effect, the authorized officer is required during development of State or regional surcharge in certain instances for the to take appropriate action under 43 CFR standards and guidelines could tier to public landlord’s share of authorized part 4100 as soon as practical, but not the analysis of the fundamentals of pasturing agreements associated with later than the start of the next grazing rangeland health and standards and public land grazing, and clarifies that year, upon determining that existing guidelines presented in the FEIS. grazing use occurring before a bill is grazing management practices are BLM planning regulations direct that paid is an unauthorized use that may be significant factors in failing to meet the actions be in conformance with BLM dealt with under the settlement and standards and conform with the land use plans. In some instances, the penalties sections of this rule and may 9900 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations result in the limitation of flexibility livestock owned by another party other Section 1784.3, Member service, otherwise provided under an allotment than the permittee or lessee. A establishes that appointments to management plan. surcharge of 35 percent of the difference advisory committees will be for two- Subleasing. The Department’s between the Federal grazing fee and the year terms unless otherwise specified in proposed rule would have imposed a private lease rate for the appropriate the committee charter or appointing surcharge on authorized leasing or State will recover an appropriate document. Specific references to grazing subleasing in two situations: (1) the ‘‘landlord’s share’’ and will result, on advisory board, district advisory council subleasing of public land grazing the average across all States, in a and National Public Lands Advisory privileges associated with the leasing of surcharge approximating the surcharge Council appointments and terms and privately-owned base property; (2) the presented in the proposed rule and election procedures have been removed. pasturing of livestock owned by analyzed in the EIS for this rule. The rule also provides that travel and someone other than the grazing Pasturing agreements must have per diem will be paid to committee permittee or lessee where the permittee authorization from the authorized members but not to members of any or lessee controls such livestock. This officer. Under this final rule, to subgroups formed under the proposal was made in response to calculate the surcharge BLM will use committees. findings of the General Accounting the per animal unit month (AUM) Sections 1784.5–1, Functions and Office (GAO) (see, e.g., RCED–86– private grazing land lease rate for the 1784.5–2, Meetings, are amended by 168BR), and the Office of the Inspector appropriate State as reported annually replacing the term ‘‘authorized # General (OIG) (see report 92–1–1364) by the National Agricultural Statistics representative’’ with the term that permittees and lessees who Service (NASS). ‘‘designated Federal officer.’’ These sublease are unduly benefitting from changes provide consistency with the their permits or leases. Sons and III. Summary of Rules Adopted terminology of FACA. daughters of grazing permittees and These final rules revise Parts 4, 1780, Section 1784.6–1, Resource Advisory lessees were exempted from the and 4100 of Title 43. The following Councils—Requirements, establishes surcharge. summary highlights changes from the requirements for RACs. It provides that, In response to comments that putting current regulations, most of which were with certain exceptions, councils will be a surcharge on authorized subleasing also included in the proposed rule. The established to cover all BLM lands. would adversely affect the ability of following provisions are included: RACs will provide advice to the BLM new ranchers with limited capital to official to whom they report regarding enter the livestock business, the Part 4 of Title 43—Department Hearings the preparation, amendment and Department has not included the and Appeals Procedures implementation of land use plans and the development of standards and surcharge associated with the Section 4.477, Effect of decision authorized leasing or subleasing of guidelines. The councils will also assist suspended during appeal, is revised to public land grazing privileges associated in establishing other long-range plans reflect that grazing decisions will no with base property in the final rule. and resource management priorities, longer be suspended automatically However, in order to address the including plans for expending range when an appeal is filed. Instead, final Secretary’s intent to establish a fair and improvement funds. RACs will not grazing decisions will be subject to the reasonable return to the public, the provide advice on personnel provisions of 43 CFR 4.21, which surcharge on pasturing agreements is management, nor on the allocation and governs the effect of administrative adopted in the final rule. The expenditure of funds subsequent to decisions pending appeal before the Department recognizes the need to budget planning. Department’s OHA. avoid penalizing children of grazing Appointments to RACs will be made permittees and lessees who graze cattle Part 1780—Cooperative Relations by the Secretary. In making under their parents’ permits or leases appointments, the Secretary will and has included an exemption from the Section 1784.0–5 is amended by consider nominations from the surcharge for pasturing for sons and replacing the term ‘‘Authorized Governor of the affected State and daughters of public land permittees and representative’’ with the term nominations received in response to a lessees. The Department believes that, ‘‘Designated Federal officer.’’ These public call for nominations. All as landlord of the public lands, it must changes provide consistency with the nominations will be required to be obtain a fair share, on behalf of the terminology of FACA. accompanied by letters of American public, of any income Section 1784.2–1, Composition, is recommendation from interests or received by the permittee for pasturing amended to remove the eligibility organizations to be represented, and cattle belonging to others. Additionally, requirement for grazing advisory board members must be residents of a State in the policy of charging a surcharge for members. The final rule also adds a which the area covered by the council pasturing is consistent with standard requirement that advisory committee is located. practices on most State grazing lands. members have demonstrated a Council members will be selected in Commenters also stated that the commitment to collaborate in seeking a balanced manner from persons proposed method for calculating the solutions to resource management representing interest groups. There are 3 surcharge did not reflect local issues. general groups: Commodity Industries— conditions. The Department has Section 1784.2–2, Avoidance of including ranching and developed addressed this concern by modifying the conflict of interest, is amended to recreational activities; Recreational/ method for calculating the surcharge on provide that no advisory committee Environmental—nationally or regionally pasturing agreements. The final rule member, including members of RACs, recognized environmental or resource provides that the surcharge on pasturing can participate in any matter in which conservation groups, wild horse and agreements will be equal to 35 percent such member is directly interested, and burro interest groups, archeological and of the difference between the Federal must disclose his or her direct or historical interests, dispersed grazing fee per AUM and the prior indirect interest in Federal permits, recreational activity interests—such as year’s private lease rate for the leases, licenses, or contracts bicyclists and hikers; and Local Area appropriate State for forage used by administered by BLM. Interest—persons who hold State, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9901 county, or local elected office, Part 4100—Grazing Administration— be determined by the authorized officer representatives of the public-at-large, Exclusive of Alaska to have a satisfactory record of Indian tribes within or adjacent to the performance. Applicants and any Subpart 4100—Grazing area, natural resource or natural science affiliates for renewal must be Administration—Exclusive of Alaska; academia, and State agencies determined to be in substantial General responsible for the management of compliance with the terms and natural resources, water quality, water Section 4100.0–2, Objectives, is conditions of the permit or lease for rights, and State lands. At least one of amended by revising the statement of which renewal is sought, and with the members appointed to each council objectives to include promoting healthy, applicable regulations. Applicants and must hold elected State, county, or local sustainable public rangelands; any affiliates who have had a Federal office. An individual may not serve on accelerating restoration and grazing permit or lease, or a State more than one RAC at any given time. improvement of public rangelands to grazing permit or lease for lands within Council members must have properly functioning conditions; the Federal grazing allotment for which demonstrated experience or knowledge promoting the orderly use, improvement application is made, cancelled within of the geographic area for which the and development of the public lands; 36 months preceding application shall council provides advice and a establishing efficient and effective be deemed not to have a satisfactory commitment to collaborative administration of grazing of public record of performance. Applicants and decisionmaking. rangelands; and providing for a their affiliates that are barred from All members of RACs must attend a sustainable western livestock industry holding a Federal grazing permit or course of instruction in the management and communities that are dependent lease by court order are also disqualified of rangelands that has been approved by upon productive, healthy public from receiving a new permit or lease. BLM State Director. rangelands. The amendments to this section also Each RAC will have requirements for Section 4100.0–5, Definitions, is clarify that mortgage insurers, natural quorums and for making amended by removing the definition of resource conservation organizations, recommendations to the Department. ‘‘Affected interests,’’ ‘‘Grazing and private parties whose primary Councils can request that the Secretary preference,’’ and ‘‘Subleasing’’; revising source of income is not the livestock respond directly where the council the definitions of ‘‘Active use,’’ ‘‘Actual business, but who meet the criteria of believes its advice has been arbitrarily use,’’ ‘‘Allotment management plan this section, are qualified for a grazing disregarded by the BLM manager. If (AMP),’’ ‘‘Consultation, cooperation and permit or lease. requested, the Secretary will respond coordination,’’ ‘‘Grazing lease,’’ Section 4110.1–1, Acquired lands, is directly to a council’s concerns within ‘‘Grazing permit,’’ ‘‘Land use plan,’’ amended to clarify that existing grazing 60 days. Such a request would require ‘‘Range improvement,’’ ‘‘Suspension,’’ permits and leases on lands acquired by agreement by all members of the and ‘‘Utilization’’; and by adding in BLM are subject to the permit or lease council. The Secretary’s response will alphabetical order the definitions of terms and conditions that were in effect not constitute a decision on the merits ‘‘Activity plan,’’ ‘‘Affiliate,’’ ‘‘Annual at the time of acquisition. Following of any issue that is or might become the rangelands,’’ ‘‘Conservation use,’’ expiration of the pre-existing permit or subject of an administrative appeal and ‘‘Ephemeral rangelands,’’ ‘‘Grazing lease, applicants for grazing permits or will not preclude an affected party’s preference or preference,’’ ‘‘Interested leases will be subject to the provisions ability to appeal a decision of the public,’’ ‘‘Permitted use,’’ ‘‘Temporary of § 4110.1 of this final rule. authorized officer. nonuse,’’ and ‘‘Unauthorized leasing Section 4110.2–1, Base property, is Administrative support for a council and subleasing.’’ amended to clarify that base property will be provided by the office of the Section 4100.0–7, Cross-references, is must be capable of serving as a base for designated Federal officer. amended to guide the public to the livestock operations but it need not Section 1784.6–2, RACs—Optional applicable sections of 43 CFR part 4 actually be in use for livestock features, establishes optional features when considering an appeal of a production at the time the authorized for RACs. Three different models are decision relating to grazing officer finds it to be base property. provided, and BLM State Director, in administration, to 43 CFR part 1600 Further, the final rule makes clear that consultation with the Governor and regarding the development of land use where authorized water developments other interested parties, will determine plans, and to 43 CFR part 1780 on public lands that have been which model will best suit the needs of regarding advisory committees. previously recognized as base property the State. General characteristics of the Section 4100.0–9, Information require reconstruction or replacement in three models are presented above, in the collection, is added to conform to the order to continue to service the same section on ‘‘Public Participation in requirements of the Paperwork area, and the reconstructed or new Rangeland Management’’ under the Reduction Act (44 U.S.C. 3501 et seq.). development has been authorized discussion of ‘‘Major Elements of the The section discloses to the public the through a cooperative range Department’s Program to Promote estimated burden hours needed to improvement agreement, the permittee’s Healthy Rangelands.’’ The first model is comply with the information collection or lessee’s interest in the new or based largely on the model developed requirements in this rule, why the reconstructed water development will by the Colorado Working Group. The information is being collected, and what continue to be recognized as base second model is based largely on the the information will be used for by property. model developed by the Wyoming BLM. Section 4110.2–2, Specifying Steering Committee. The third model permitted use, is retitled to reflect the was developed by BLM after Subpart 4110—Qualifications and redefinition of the term ‘‘grazing consideration of public comment. Preference preference,’’ and amended to replace the Previous sections 1784.6–1, National Section 4110.1, Mandatory term ‘‘grazing preference’’ with Public Lands Advisory Council, 1784.6– qualifications, is amended to require ‘‘permitted use.’’ Also, the section is 4, District advisory councils, and that applicants for renewal or issuance amended to clarify that levels of grazing 1784.6–5, Grazing advisory boards, are of new grazing permits or leases, and use on ephemeral or annual ranges are removed. any affiliates of such applicants, must established on the basis of the amount 9902 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations of forage that is temporarily available rangeland health and standards and district grazing advisory boards with pursuant to vegetation standards guidelines. RACs and including State resource prescribed by land use plans or activity Section 4110.3–3, Implementing management agencies in the activity plans. reductions in permitted use, is retitled planning process. Section 4110.2–3, Transfer of grazing and previous paragraph (a) and other The final rule also provides that preference, is amended to reflect the requirements for phased-in reductions permits and leases must include in their new requirements of § 4110.1–1 in permitted use are removed. Previous terms and conditions a requirement for pertaining to the applicant’s history of paragraph (b) is amended to remove the conformance with AMPs or other performance and by adding a new term ‘‘suspension of preference’’ and applicable activity plans. Further, it paragraph (f) to require that new permits add in its place the term ‘‘reductions in provides that flexibility granted to or leases stemming from transfer of the permitted use.’’ The phrase ‘‘when permittees or lessees under a plan will base property be for a minimum of three continued grazing use poses a be determined on the basis of years, unless a shorter term is approved significant risk of resource damage from demonstrated stewardship. The rule by the authorized officer. these factors’’ is amended to read ‘‘when clarifies the existing provision that the Section 4110.2–4, Allotments, is continued grazing use poses an inclusion of lands other than public amended to clarify that designation and imminent likelihood of significant lands in an AMP or other activity plan adjustment of allotment boundaries resource damage.’’ This clarifies that is discretionary. Finally, this section includes the authority for, and the modifications in grazing use and notices references the NEPA analysis and practice of, combining or dividing of closure can be implemented where related public participation that is allotments when determined by the continued grazing use poses an required for the planning and revision authorized officer to be necessary to imminent likelihood of significant of allotment or activity plans, and achieve resource condition objectives or resource damage. Additionally, provides that the decision document to enhance administrative efficiency. paragraph (b) provides, by reference to that follows the environmental analysis The section clarifies that modification of § 4110.3–2, for the application of the serves as the proposed decision for allotments must be done through fundamentals of rangeland health and purposes of subpart 4160. Section 4120.3–1, Conditions for agreement or decision of the authorized standards and guidelines and the use of range improvements, is amended by officer, following consultation, other methods, in addition to specifying in paragraphs (b) and (e) that cooperation and coordination with monitoring, for determining the need for ‘‘cooperative agreements’’ refers to involved persons, including the an initial reduction, and clarifies the cooperative range improvement interested public. action of the field manager, requirements for consultation, agreements, and by inserting a new Section 4110.3, Changes in permitted cooperation and coordination with paragraph (f) addressing reviews of use, is amended by replacing the term involved persons, including the decisions associated with range ‘‘grazing preference’’ with ‘‘permitted interested public. Previous paragraph (c) improvement projects. The amendment use,’’ and by clarifying that changes in is redesignated as paragraph (b) and clarifies the process for administering permitted use will be supported by amended to remove the word protests and appeals of decisions and monitoring data, field observations, land ‘‘temporary’’ to recognize that the provides that appeals are subject to the use planning decisions, or data influences of natural events such as administrative remedies process set collected through other studies. drought can significantly affect forth in 43 CFR part 4160. Section 4110.3–1, Increasing vegetation health and productivity for The heading of § 4120.3–2, permitted use, is amended by including several months or years after a drought Cooperative range improvement the requirement that a permittee, lessee, has passed. Redesignated paragraph (b) agreements, is revised to clarify that this or other applicant must be determined retains the special provisions for making section deals with cooperative range to be qualified under subpart 4110, by decisions effective upon issuance or on improvement agreements as opposed to substituting the term ‘‘permitted use’’ in the date specified in the decision when ‘‘cooperative agreements’’ with other place of ‘‘grazing preference,’’ and by action is needed to protect rangeland Federal or State agencies. The section is clarifying the requirements for resources. amended to clarify that title will be in consultation. Also, reference to a Paragraph (a) of § 4110.4–2, Decreases the United States for all new permanent permittee’s or lessee’s demonstrated in land acreage, is amended by grazing-related improvements stewardship is added to factors to be removing reference to suspended use. constructed on public lands. considered in allocating available Reductions in authorized use under Title to temporary grazing-related forage. preference permits or leases will no improvements used primarily for Section 4110.3–2, Decreasing longer be recognized as suspended use. livestock handling or water hauling can permitted use, is amended by revising still be held by the permittee or lessee. the heading, revising paragraph (b) to Subpart 4120—Grazing Management The amendment will not affect expand the list of methods for Section 4120.2, Allotment ownership or rights currently held in a determining when a reduction in management plans and resource activity range improvement. grazing use is necessary, and by deleting plans, is amended by revising the The provisions pertaining to title do paragraph (c), which contained heading and by adding a reference to not affect the existing practice of provisions for suspended use. The other activity plans that may prescribe retaining a record of permittee or lessee amendment adds ecological site grazing management. The final rule contributions to specific authorized inventory and other recognized methods clarifies that draft AMPs or other draft range improvement projects. This record for determining forage production as activity plans may be prepared by other will be used in determining methods of identifying when use agencies or permittees or lessees, but compensation due the permittee or exceeds the livestock carrying capacity that such plans do not become effective lessee in the event a permit or lease is of the area considered. Monitoring until approved by the authorized officer. cancelled in order to devote the public remains as a means of determining AMPs must include standards and lands to another public purpose, forage production. The amendment also guidelines. Paragraph (a) is also including disposal of the lands. This adds a reference to the fundamentals of amended by replacing the reference to record may also be considered during Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9903 the transfer of grazing preference to budgets for range improvement and the Section 4130.1–2, Conflicting ensure that all interests in range establishment of range improvement applications, is amended to add criteria improvements have been assigned to the priorities. to be considered in granting a use transferee. Section 4120.3–9, Water rights for the authorization or permit or lease. The The amendment does not change purpose of livestock grazing on public rule incorporates the history of agreements currently in effect. The lands, is added to provide consistent applicants’ and affiliates’ compliance amendment also clarifies that direction for BLM regarding water rights with the terms and conditions of permanent water improvement projects on public lands for livestock watering Federal and State grazing permits and will be authorized through cooperative purposes. This section provides that the leases and demonstrated stewardship of range improvement agreements. United States will acquire, perfect, the public lands as criteria for granting Section 4120.3–3, Range improvement maintain, and administer any rights to permits or leases where there is more permits, is amended to make it clear water obtained on public land for than one qualified applicant. that a permittee or lessee may hold title livestock watering on public land in the Section 4130.2, Grazing permits or to removable livestock handling name of the United States to the extent leases, is amended so that permits and facilities and to temporary allowed by State law. leases will continue to be offered for 10- improvements such as troughs for The rule adopted today will be year terms except in specified hauled water or loading chutes. The prospective. The final rule does not circumstances. The final rule also amendment will not affect ownership or create any new Federal reserved water clarifies that all grazing permits and rights currently held in a range rights, nor will it affect valid existing leases issued, including the transfer or improvement. water rights. The provisions of this final renewal of permits and leases, will The final rule provides that BLM may rule are not intended to apply to the include terms and conditions mediate disputes when necessary about perfection of water rights on non- addressing the fundamentals of reasonable compensation for the Federal lands. Any right or claim to rangeland health and standards and operation and maintenance of facilities water on public land for livestock guidelines proposed under subpart when another operator is authorized 4180, as well as terms and conditions temporary use of forage that the watering on public land by or on behalf of the United States will remain subject establishing allowable levels, seasons preference permit holder cannot use. and duration of use, and other factors Finally, the rule removes as unnecessary to the provisions of 43 U.S.C. 666 (the McCarran Amendment) and section 701 that will assist in achieving the provision that permittees or lessees management objectives, provide for of FLPMA (43 U.S.C. 1701 note; can control their livestock’s use of proper range management, or assist in disclaimer on water rights). Finally, the ponds or wells. the orderly administration of the public final rule does not change existing BLM A new section § 4120.3–8, Range rangelands. The final rule also provides policy on water rights for uses other improvement fund, is added to address that the authorized officer must consult than public land grazing, such as the distribution and use of the ‘‘range with interested parties prior to the irrigation, municipal, or industrial uses. betterment’’ funds appropriated by issuance or renewal of grazing permits Congress through section 401(b) of Section 4120.5 is added to recognize and leases and prohibits the offering or FLPMA for range improvement and encourage cooperation with, among granting of permits and leases to expenditures by the Secretary. The others, State, county, Indian tribal, and applicants who refuse to accept the range betterment fund has been called local government entities and Federal terms and conditions of the offered the range improvement appropriation by agencies. permit or lease. Congress, and is known by that title in Section 4120.5–1, Cooperation with The final rule clarifies the process of BLM. The final rule provides for State, county, and Federal agencies, is application for and granting of distribution of the funds by the amended to recognize existing conservation use and temporary nonuse. Secretary, with one-half of the range cooperation with State cattle and sheep Conservation use is established as one improvement fund to be made available boards, county and local noxious weed of the allowable uses for which a permit to the State and District from which the control districts, and State agencies or lease may be granted when it is in funds were derived. The remaining one- involved in environmental, conformance with the applicable land half is to be allocated by the Secretary conservation, and enforcement roles use and activity plans and the on a priority basis. All range related to these cooperative appropriate standards and guidelines. improvement funds will be used for on- relationships. Forage made available as a result of the-ground rehabilitation, protection Subpart 4130—Authorizing Grazing Use temporary nonuse may be authorized for and improvements of public rangelands. temporary use by another operator. The final rule further clarifies that This section is reordered to follow a Forage used for conservation purposes range improvement includes activities more logical sequence. This discussion would not be available to other livestock such as planning, design, layout, will use the new numbers and cross operators. The procedures guiding modification, as well as maintaining, reference the old numbers. A table approval of nonuse have been monitoring and evaluating the showing old and new numbers is developed in response to a effectiveness of specific on-the-ground included in the section-by-section recommendation from the March 19, range improvements in achieving discussion of this subpart. 1986, OIG’s review of the grazing resource condition and management Section 4130.1, Applications, is management program. objectives. added. This action merely adds a title Section 4130.3, Terms and conditions, The final rule also requires for purposes of the reorganization of the is amended through a minor addition to consultation with affected permittees, subpart. reflect the requirement to conform with lessees, and the interested public during Section 4130.1–1, Filing applications, the fundamentals of rangeland health the planning of range development and is renamed from the proposed and standards and guidelines of subpart improvement programs. RACs will also ‘‘Applications’’ and amended slightly to 4180. be consulted during the planning of accommodate the new category of use, Section 4130.3–1, Mandatory terms range development and improvement conservation use, which is adopted in and conditions, is amended through programs, including the development of this final rule. minor additions and deletions which 9904 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations clarify that use must not exceed the the fair sharing of maintenance and shall be for a minimum of three years livestock carrying capacity of the operation of range improvements and unless it is determined by the allotment, and by removing unnecessary will be approved for the same term as authorized officer that a shorter period references to previous sections. The any leased lands that are offered. is consistent with management and section is further amended to add a Section 4130.6–2, Nonrenewable resource condition objectives. The paragraph (c) that requires that the grazing permits and leases, is modified second is a pasturing agreement under fundamentals of rangeland health and to require the authorized officer to which livestock not owned by the the appropriate standards and consult with the affected permittee or permittee or lessee, but under the guidelines be reflected in the terms and lessee, the State, and the interested control of the permittee or lessee, is conditions of permits, leases and other public before issuing a nonrenewable allowed to graze on the public lands authorizations. permit. that are subject to a permit or lease. The Section 4130.3–2, Other terms and Section 4130.6–3, Crossing permits, is BLM authorized officer must approve conditions, is amended to provide for modified to specify that crossing such pasturing agreements. Other types proper rangeland management and to permits are a form of temporary use of subleasing arrangements will be remove unnecessary language. The final authorization. considered unauthorized. A surcharge rule allows terms and conditions to Section 4130.7. Ownership and for the lease or sublease of public land provide for improvement of riparian identification of livestock, is amended grazing privileges associated with base area functions and protection of to make it clear that, before grazing property is not adopted in the final rule. rangeland resources and values livestock owned by persons other than The final rule provides for the consistent with applicable land use the permittee or lessee, the permittee or collection of a surcharge for authorized plans. Paragraph (h) affirmatively states lessee must have an approved use pasturing activities associated with a that BLM will have reasonable authorization and must have submitted Federal permit or lease. The final rule administrative access across the a copy of the documented agreement or provides for a surcharge of 35 percent of permittee’s or lessee’s owned or leased contract that includes information the difference between the grazing fee private lands for the management and required for BLM’s administration of per AUM rate and the prior year’s protection of public land. permits and leases and management of private lease rate for the appropriate Section 4130.3–3, Modification, is rangeland resources. State as determined by the NASS for amended to clarify consultation Sons and daughters of permittees or forage used by livestock owned by requirements in the modification of lessees are exempted from the another party other than the permittee terms and conditions of permits and provisions of this section in specified or lessee. leases. The rule provides for greater circumstances. This is necessary to The final rule excludes from the State and public participation when allow sons and daughters, who are pasturing surcharge sons and daughters changes are proposed that are not grazing livestock on public lands under of permittees or lessees grazing livestock within the scope of the existing permit their parents’ permit or lease in on public lands as part of an or lease. The rule also provides for specified circumstances, to avoid the educational or youth program pertaining increased State and public participation pasturing surcharge provided in to livestock rangeland management, or during the evaluation of monitoring § 4130.8. when establishing a livestock herd in results or other data that provide a basis Section 4130.8–1, Payment of fees, is anticipation of assuming part or all of for decisions regarding grazing use or amended to make clear the definition of the family ranch operation. management. a billing unit, to provide for the Section 4130.8–3, Service charge, is Section 4130.4, Authorizations within assessment of a surcharge for authorized amended to include temporary nonuse terms and conditions of permits and pasturing of another owner’s livestock and conservation use in the list of items leases, is amended to allow field and to clarify that grazing use that for which BLM may assess a service managers to make temporary changes in occurs before a bill is paid is an charge. The service fee will offset the authorized use that are within the scope unauthorized use, may be dealt with costs of processing such applications. of existing permits and leases. under the settlement and penalties Section 4130.5, Free-use grazing sections of these regulations. Also, the Subpart 4140—Prohibited Acts permits, is modified to reflect new section is amended to clarify that delays Section 4140.1, Prohibited acts on circumstances under which the in payment of actual use billings and public lands, is amended to clarify that authorized officer may grant free-use noncompliance with the terms and failure to make substantial use as permits. This new provision was conditions of permits or leases may authorized is a prohibited act, but that contained in § 4130.7–1 of the proposed result in the loss of after-the-grazing- approved temporary nonuse, rule. season billing privileges authorized conservation use, and use temporarily The final rule provides that free use under an AMP. For administrative suspended are not prohibited acts. can be permitted where the primary convenience, the assessment of This section also clarifies that it is objective of authorized grazing use or pasturing surcharges will not begin until prohibited to use public lands for conservation use is the management of the start of the next grazing year, March grazing without a permit or lease and an vegetation to meet resource objectives 1, 1996. annual grazing authorization. other than the production of livestock The final rule recognizes two types of Furthermore, mere receipt of a grazing forage, to conduct scientific research or authorized subleasing. The first is the fee bill does not authorize grazing use administrative studies, or to control sublease of public land grazing of the range; the bill must actually be noxious weeds. privileges along with the base property paid. (However, § 4140.1(c) specifically Section 4130.6–1, Exchange of use associated with the permit or lease. provides for civil penalties only where grazing agreements, is amended to Such a sublease of the public land violations, including unauthorized use specify that exchange of use grazing grazing privileges must be accompanied resulting from payment by a check that agreements must be consistent with by a lease or sublease of the associated is not honored, are repeated and management objectives and compatible base property and the BLM authorized willful.) The final rule also makes it with existing livestock operations. The officer must approve the transfer of the clear that the permittee is responsible agreements will be required to address grazing permit or lease. Such transfers for controlling livestock so cattle do not Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9905 stray onto ‘‘closed to range’’ areas where unintentional incidental trespasses, in will not exceed the appellant’s grazing is prohibited by local laws, such cases when the authorized officer previously authorized use. as formally designated agriculture determines the livestock operator is not Finally, this section provides districts or municipalities. The final at fault, when an insignificant amount authority to the authorized officer for rule specifies that permittees or lessees of forage has been consumed, when making decisions effective immediately, are subject to penalties if they violate damage to the public lands has not unless a stay is granted, when it is Federal or State laws pertaining to occurred, and when nonmonetary necessary to protect rangeland resources protection of bald eagles, endangered or settlement is in the best interest of the under the standards imposed by threatened species, and wild horses and United States. The method for § 4110.3–3(b), or to facilitate abatement burros; the placement of poisonous bait determining settlement amounts is of unauthorized use by closing an area or hazardous devices designed for the amended. Settlement for nonwillful temporarily to grazing use under destruction of wildlife; application or violations equals the value of forage § 4150.2 of this part. storage of pesticides, herbicides or other based on the monthly rate per AUM for Section 4160.4, Appeals, provides hazardous materials; alteration of stream pasturing livestock on private, instructions regarding the filing of courses without authorization; pollution nonirrigated land in the State in which appeals and petitions to stay decisions. of water sources; illegal take; the violation occurred. When a final decision is issued, any destruction or harassment of fish and person whose interest has been wildlife; and illegal removal or Subpart 4160—Administrative Remedies adversely affected may file an appeal destruction of archeological or cultural and a petition for stay of the decision resources when public lands are Subpart 4160, Administrative within 30 days from the date of receipt involved or affected. remedies, is amended to improve of a final decision, or 30 days from the Other changes in the section clarify organization, clarify administrative date a proposed decision becomes final that it is unlawful to harm livestock processes and requirements, provide for in the absence of a protest. Under the authorized to graze on public land, and application of the Departmental rule process of § 4.21 of this title, OHA is to interfere with other lawful uses of the located at § 4.21 of this title regarding allowed 45 days from the end of the land. These provisions include a effectiveness of a decision pending appeal period to review a petition for prohibition on obstructing free transit appeal and procedures for obtaining a stay. across public land. stay, and provide for the issuance of Finally, provisions which specify that decisions that take effect immediately. Subpart 4170—Penalties violations subject to penalty under Section 4160.1, Proposed decisions, is Section 4170.1–1, Penalty for § 4170.1–1 are limited to those where amended to clarify that a final decision violations, is amended to provide for a public land administered by the Bureau may be issued without first issuing a penalty for unauthorized leasing and of Land Management is involved or proposed decision when action under subleasing in the amount of two times affected, the violation is related to paragraph 4110.3–3(b) of this part is the private grazing land lease rate for grazing use authorized by permit or necessary to protect rangeland the state in which the violation occurred lease, and the permittee or lessee has resources, or when action is taken under as supplied annually by the NASS, as been convicted or otherwise found to be paragraph 4150.2(d) to close an area to well as reasonable expenses incurred by in violation of any of these laws or unauthorized grazing use. Other the United States in detecting, regulations by a court or by final provisions clarify the information that investigating, and resolving the determination of an agency charged must be contained in a proposed violation. with the administration of these laws or decision, and specify that decisions will Section 4170.1–2, Failure to use, is regulations, and no further appeals are be served by certified mail or personal amended to provide that if a permittee outstanding, are moved from proposed delivery. or lessee has, for 2 consecutive grazing § 4170–1–3 and incorporated into this Sections 4160.1–1 and 4160.1–2 are fee years, failed to make substantial use final section. removed. as authorized in the lease or permit, or Subpart 4150—Unauthorized Grazing Section 4160.3, Final decisions, is has failed to maintain or use water base Use amended to clarify the process for filing property in the grazing operation, the Section 4150.1, Violations, is an appeal and a petition for a stay of a authorized officer, after consultation reorganized for clarity and amended to final decision. It provides that decisions with the permittee or lessee, may cancel add the requirement that the authorized will be implemented at the end of the whatever amount of permitted use the officer must determine whether a 30-day appeal period except where a permittee or lessee has failed to use. violation is nonwillful, willful, or petition for stay has been filed with Section 4170.1–3, Federal or State repeated willful. This clarifies OHA, in which case OHA will have up animal control and environmental subsequent sections of the rule. to 45 days to act on the petition. If the protection or resource conservation Section 4150.2, Notice and order to petition is granted, the decision will be regulations or laws, is removed. The remove, is amended to provide stayed until resolution of the appeal. substance of this section is incorporated authority for the authorized officer to The final rule also clarifies the in § 4140.1(c) of this final rule. exercise discretion in determining how amount of grazing use that is authorized Section 4170.2–1, Penal provisions nonwillful violations will be settled, when a decision has been stayed by under TGA, is revised slightly to specify close areas temporarily for a period of OHA. Where an appellant has had no that any person who willfully commits up to 12 months to specified classes and authorized grazing use during the an act prohibited under § 4140.1(b), or kinds of livestock in order to abate preceding year, the authorized grazing who willfully violates approved special unauthorized use, and allow notices of use must be consistent with the rules and regulations, is punishable by closure to be issued as final decisions. decision, pending a final determination a fine of not more than $500. Section 4150.3, Settlement, is on appeal. Where a decision proposes a Section 4170.2–2, Penal provisions amended to provide the authorized change in the amount of authorized under FLPMA, is amended to adopt the officer with the authority to consider grazing use, the authorized grazing use alternative fines provisions of Title 18 nonmonetary settlement for during the time an appeal is pending U.S.C. section 3571. 9906 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Subpart 4180—Fundamentals of the development of standards pertain to Comments that were more specific to a Rangeland Health and Standards and the factors needed to help achieve particular section are discussed in the Guidelines for Grazing Administration rangeland health. More specifically, the following section entitled Section-by- Section 4180.1, The fundamentals of factors relate to watershed function, Section Analysis and Responses to rangeland health (titled National threatened or endangered species and Public Comments. candidate species, habitat for native Requirements for Grazing Rangeland Reform Is Not Needed plant and animal populations, water Administration in the proposed rule) for Some commenters took the position grazing administration, are added to quality and the distribution of nutrients and energy flow. Section 4180.2(e) lists that general rangeland improvement is establish fundamental requirements for unnecessary. Their view was that achieving functional, healthy public guiding principles to be addressed in the development of guidelines. current legislation, regulations, and rangelands. These fundamentals address The rule provides that where State or procedures provide enough latitude and the necessary physical components of regional standards and guidelines are capability for the government to functional watersheds, ecological not completed and in effect by February administer the public rangelands processes required for healthy biotic 12, 1997, the fallback standards and properly, therefore there is no communities, water quality standards, guidelines included in the text of the justification for designing and and habitat for threatened or rule will be implemented. The fallback implementing the rangeland endangered species or other species of standards and guidelines address largely improvement program. They stated that special interest. the same factors that are provided in the the initiative should be dropped or Where it is determined that existing guiding principles for the development abandoned immediately. They asserted grazing management needs to be of the State or regional standards and that the government has not shown that modified to ensure that the conditions guidelines. The fallback standards the proposal will benefit the western of healthy rangelands set forth in include more detail regarding the range and many of the elements of the § 4180.1, Fundamentals of rangeland conditions that would exist under each rule are more appropriately dealt with health, are met or significant progress is of the factors when rangelands are in a in manuals, instruction memos, and being made to meet the fundamentals, healthy, functional condition than do policy guidance. the authorized officer must take the guiding principles presented in In addition, the comment was often appropriate action as soon as practical, § 4180.2(d). Similarly, the fallback made that the National Research but not later than the start of the next guidelines include grazing management Council study commissioned by the grazing season. This may include practices while the guiding principles of National Academy of Sciences reports actions such as reducing livestock § 4180.2(e) refer more generally to the that the conditions of rangeland health stocking rates, adjusting the season or types of concerns to be addressed in the in the West are largely unknown. If the duration of livestock use, or modifying development of State or regional conditions are unknown, stated the or relocating range improvements. guidelines. commenters, it is impossible to Section 4180.2, Standards and Standards and guidelines will be demonstrate a need for the proposed guidelines for grazing administration, is applied through terms and conditions of rule. Some commenters stated that the added to direct that standards and grazing permits, leases and other entire proposal and EIS were politically guidelines will be developed for an authorizations, through AMPs and other driven and did not relate to the resource entire State or for an area encompassing activity plans, and through the protection issues of public land portions of more than one State, except conditions of cooperative range administration. where the geophysical or vegetal improvement agreements and range The Department believes that there is character of an area is unique and the improvement permits. The Department a need for changes in public rangeland health of the rangelands will not be recognizes that rangelands within a grazing administration. The Department ensured by using standards and given area may be in functional, healthy has been collecting data on the guidelines developed for a larger conditions even though individual condition of the rangelands for over 60 geographical area. The geographical area isolated sites do not meet the standards years. The Department does have covered will be determined by BLM or guidelines. However, the Department considerable information on all BLM State Directors in consultation with believes that general failure to meet the lands, based on these years of data affected RACs. Once standards and benchmarks across a broader area, such collection, although the same level of guidelines are in effect, the authorized as a typical BLM grazing pasture or BLM detailed knowledge may not be officer shall take appropriate action as allotment, would be reliable evidence available on every allotment. The soon as practical, but not later than the that the area is not in healthy, information available is sufficient to start of the next grazing year upon functional condition. identify trends in rangeland health determining that existing grazing across the western rangelands. management practices are significant IV. General Comments The status and trends of the western factors in failing to ensure significant Numerous comments addressed the rangelands upon passage of the Public progress toward the fulfillment of the overall rulemaking. These comments Rangelands Improvement Act (PRIA) in standards and toward conformance with asserted several central themes which 1978 indicated that western rangelands the guidelines. The preparation of crosscut different sections of the were producing below their potential standards and guidelines will involve rulemaking. Accordingly, BLM has and that rangelands would remain in public participation and consultation decided to address these central issues unsatisfactory condition or decline with RACs, Indian tribes, and Federal in this portion of the preamble. Within further unless the unsatisfactory agencies responsible for the the context of such discussion, conditions could be addressed and management of lands within the particular sections of the proposed and corrected by intensive public rangelands affected area. final rules will be referred to as maintenance, management and Section 4180.2(d) lists factors that, at necessary. Nevertheless, in these improvement. Congress articulated its a minimum, must be addressed in the responses, BLM focuses upon central view in PRIA that such unsatisfactory development of State or regional issues that were of concern to conditions on public rangeland present standards. The guiding principles for commenters throughout the proposal. a risk for soil loss, siltation, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9907 desertification, water loss, loss of poor stewards of the public rangelands. amendments to the grazing rule conflict wildlife and fish habitat, loss of forage They stated that the program will directly with TGA, FLPMA, PRIA and for livestock and other grazing animals, alienate many conscientious ranchers. other related Federal laws. The BLM’s degradation of water quality, flood The commenters asserted that the main statutory authorities for regulating danger, and threats to local economies. agencies and public may lose the service grazing on the public lands are TGA, In addition, BLM National Public Lands and support of these users in FLPMA and PRIA. In TGA Congress Advisory Council recommended in 1992 maintaining and improving the directed the Secretary to bring order to that ‘‘* * * foremost consideration conditions of the public rangelands, and the management of the public needs to be given to protecting the basic that rangeland conditions are likely to rangelands and improve range components of soil, water and degrade. Therefore, they claimed, the conditions. vegetation. Without assurances for the initiative should be abandoned. Specifically, Section 2 of TGA future well-being of these basic natural However, the Department believes that provides: resources, there is little to squabble improving administration of public The Secretary of the Interior shall make about.’’ rangelands will improve their condition, provision for the protection, administration, BLM’s research has concluded that in which will benefit all uses, including regulation, and improvement of such grazing the long term under current livestock grazing. This is discussed districts * * * and he shall make such rules management practices 22 million acres more fully in the FEIS on this and regulations * * * and do any and all of BLM uplands would be functioning rulemaking. things necessary to accomplish the purposes but susceptible to degradation, and The standards and guidelines in the of this Act * * * namely to regulate their about 20 million acres would be final rule are aimed at improving the occupancy and use, to preserve the land and nonfunctioning. The vegetation in some ecological health of the rangelands. The its resources from destruction or unnecessary areas would change from potential analysis in the FEIS indicates there will injury, to provide for the orderly use, improvement, and development of the range natural communities to mid seral or late be significant improvements. * * *. seral stages because of overgrazing, fire, The Department recognizes that the or drought. Conditions would be worse majority of public land grazing The TGA authorizes the Secretary to, in riparian and wetland areas. The permittees and lessees are conscientious among other things, establish fees, issue overall trends would be a slow, steady, stewards. However, it also notes that permits and leases and prescribe terms long-term decline in conditions. line managers need clear authority and and conditions for them, issue range Approximately 466,000 acres of riparian guidance to help correct problems in improvement permits, and provide for areas (43 percent of the total) on BLM grazing use and to improve the degraded local hearings on appeals. The emphasis land would be functioning but condition of some areas expeditiously. on disposal of Federal lands changed susceptible to degradation, and 219,000 This program is intended to facilitate with the Classification and Multiple Use acres (21 percent) would be cooperation between BLM employees Act in 1964 and FLPMA in 1976. In nonfunctioning. The results of these and public land users in making those FLPMA Congress articulated the studies are reported in detail in the FEIS improvements. Also, by making BLM national policy that ‘‘the public lands be on this rulemaking. These studies show and Forest Service management more retained in Federal ownership.’’ 43 that without some changes in the similar, it will be easier for permittees U.S.C. 1701. FLPMA also directs that current program conditions in critical and lessees to comply with land use land management be on the basis of riparian areas would continue to requirements. Good stewards will not be multiple use and sustained yield, thus decline. adversely affected by this initiative and clarifying that other uses of public lands The program of rangeland will have an opportunity to work with are equally appropriate. FLPMA did not improvement responds to the needs of the Department to sustain the economic repeal TGA, but did provide additional BLM to ensure the efficient vigor of their industry while management direction. For example, administration and management of maintaining or improving the ecological section 402 of FLPMA provides that public rangelands, as well as to the health of the public lands. The grazing permits and leases shall be: findings expressed by Congress most Department recognizes that it is in the [S]ubject to such terms and conditions the recently in PRIA, the National Public best interests of the users, the public, Secretary concerned deems appropriate and Lands Advisory Council, and the and BLM to cooperate in meeting these consistent with the governing law, including, Western Governors’ Association. The objectives. but not limited to the authority of the program has included and will continue Commenters also stated that the Secretary concerned to cancel, suspend, or to include significant public Department has gone through the modify a grazing permit or lease for any involvement. The FEIS associated with formalities of public input but has failed violation of a grazing regulation or of any the rulemaking examined several to make public the findings and term or condition of such grazing permit or lease. alternatives, including continuing statistics of the letters and meetings. grazing administration under current During development of the final rule, In 1978 Congress again focused on the rules and procedures. The impact the Department considered all public rangelands when it passed PRIA. analysis in Chapter 4 of the EIS comments, and as a result has modified In Section 2 of that Act Congress found demonstrates there would be substantial the language of the proposed rule. All that ‘‘vast segments’’ of the public improvement in riparian areas, uplands, comments received are available for rangelands were ‘‘producing less than and only slightly reduced forage review in BLM’s administrative record. their potential for livestock, wildlife availability under the alternative The section-by-section portion of this habitat, recreation, forage and water and adopted today when compared to a preamble explains the changes made to soil conservation benefits,’’ and so were continuation of current management. the proposed rule in this final rule. considered to be in an unsatisfactory Some commenters asserted that condition.’’ Congress went on in Section rangeland improvement is unnecessary Rangeland Improvement Is Inconsistent 2 to reaffirm a national commitment to because it will not improve the With Current Laws ‘‘manage, maintain and improve the condition of the public rangelands. The Conflicts with TGA, FLPMA, and condition of the public rangelands so Department disagrees. Commenters other laws. A number of comments that they become as productive as argued that few permittees or lessees are questioned whether the proposed feasible for all rangeland values.’’ The 9908 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Department has concluded that the public lands to the Secretary, acting compensable property interest, United amendments to the grazing rule are through BLM. The basic laws are TGA, States v. Fuller, 409 U.S. 488 (1973). within the statutory authority granted FLPMA and PRIA. In authorizing the Even if, in other words, cancellation, by Congress to the Secretary to issuance of grazing permits in TGA, nonrenewal, suspension, or changes in administer the public lands under TGA, Congress expressly provided that the the terms and conditions of a grazing FLPMA, PRIA, and related acts. ‘‘issuance of a permit * * * shall not permit might have some negative effect NEPA issues. A number of create any right, title, interest, or estate on the value of the base property, the commenters asserted that the draft EIS in or to the [public] lands.’’ 43 U.S.C. Supreme Court has made clear this is was inadequate. The commenters 315b. In FLPMA, Congress authorized not a ‘‘taking.’’ asserted that more local EISs were the Secretary to ‘‘cancel, suspend, or Some commenters asserted that the required. The FEIS prepared for the modify a grazing permit or lease, in proposal to clarify title to future rangeland improvement program whole or in part, pursuant to the terms permanent range improvements on the describes the environmental impacts and conditions’’ of the permit or lease. public lands in the name of the United that would result from several proposed 43 U.S.C. § 1752(a). The same section States constitutes a ‘‘taking’’ of private alternatives for managing BLM also authorizes the Secretary to ‘‘cancel property. The BLM has concluded that administered rangeland and for or suspend a grazing permit or lease for proper management of the public lands changing the fees charged to permittees any violation of a grazing rule or of any requires title to permanent and lessees. Any subsequent narrower term or condition of such permit or improvements on the public lands to decisions, such as the state or regional lease.’’ These statutes are implemented remain with the land and be held in the standards and guidelines or, if by BLM’s regulations at 43 CFR Part name of the United States. This necessary, more local determinations, 4100 et seq., including the amendments clarification brings BLM in line with will tier to the broader national FEIS. adopted here. Forest Service policy. This provision is Tiering is appropriate when a The Fifth Amendment to the United prospective in application; that is, it subsequent EIS or environmental States Constitution provides in relevant will not affect ownership or rights that may currently be held in a range assessment is prepared on an action part that no person shall be denied improvement. In FLPMA, Congress included in the overall EIS, in this case, property without due process of law, provided for limited compensation for the FEIS prepared for the overall and no private property shall be taken permanent improvements when a program. Additional NEPA analysis will for public use, without just permit or lease is cancelled in whole or be conducted as appropriate as local or compensation. This Amendment in part, in order to devote the public regional decisions are made. protects private property. Because FACA Issues. A number of lands to another public purpose, Congress made clear in TGA that commenters stated that some of the including disposal. 43 U.S.C. 1752(g). grazing permits create no private proposals relating to RACs, especially To be faithful to this Congressional property interest in public lands, the the provisions regarding task forces of directive, the amendment requires the Fifth Amendment’s protection is not those councils, were violations of authorized officer to retain a record of FACA. The Department disagrees. The implicated. The Courts have long held permittee or lessee contributions to final rules adopted today provide that that no taking of private property occurs specific authorized range improvement any subcommittee will report directly to in the course of lawful administration projects. This record will be available the chartered advisory council. The and regulation of Federal grazing lands for use in determining any advisory council will then because the grazing permit represents a compensation owed the permittee or independently review the input from benefit or privilege bestowed by the lessee in the event a permit or lease is the subcommittee prior to presenting Federal government upon a private cancelled in order to devote the public any consensus advice to the agency. As individual and not a compensable lands to another public purpose. long as subcommittees report to the property interest under the Fifth Comments were also received on a agency through the chartered advisory Amendment. proposed amendment to require committee, and do not provide advice Thus, an authorized officer’s decision permittees or lessees, as a term or directly to the agency, their operation is to change permitted use (§ 4110.3), condition of a grazing permit or lease, consistent with the requirements of decrease permitted use (§ 4110.3–2), to allow BLM reasonable administrative FACA. implement a reduction in permitted use access across non-Federal lands under Takings. Some commenters asserted (§ 4110.3–3), decrease land acreage its control for the orderly management that various sections of the proposed (§ 4110.4–2), approve an AMP and protection of the public lands. rule raise the possibility of a ‘‘taking’’ of (§ 4120.2), or approve a cooperative Sometimes, because of the location and private property rights without ‘‘just range improvement agreement configuration of public and non-Federal compensation.’’ The United States (§ 4120.3–2) does not give rise to a lands, BLM personnel need reasonable Constitution gives Congress the ‘‘Power takings claim. access across non-Federal lands under to dispose of and make all needful Rules Some commenters asserted that the control of permittee or lessee to and Regulations respecting the Territory permittees and lessees should be access Federal land in order to carry out or other Property belonging to the compensated for any indirect adverse its management responsibilities on United States.’’ Article IV, § 3, cl. 2. The impact that cancellation, nonrenewal, public land. Providing for such access is power includes authority to control the suspension or modification of grazing a reasonable condition to attach to the use and occupancy of Federal lands, to permits might have on the permittee’s permit or lease authorizing livestock protect them from trespass and injury base property. While base property is grazing on public lands. and to prescribe the conditions upon private property protected by the Fifth Administrative appeals procedures. which others may obtain rights in them. Amendment, the United States Supreme Many commenters raised questions of Utah Power & Light Co. v. United States, Court, in an opinion by Chief Justice fairness and appeals; many of these 243 U.S. 389, 405 (1917). Rehnquist, specifically considered and commenters referred to these as ‘‘due In a series of laws, Congress has rejected the argument that the increment process’’ issues. The existing delegated primary responsibility and of value added to a private ranch by a administrative and applicable judicial authority to manage livestock grazing on public land grazing permit is a protections afforded permittees and Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9909 lessees pertaining to the issuance, provide adequate opportunity for with the terminology of FACA and 41 modification, suspension, cancellation, administrative appeals and violated CFR 101–6.1019. renewal and general administration of various statutory provisions. Some read The Department received very few grazing permits and leases will the proposal to require a permittee to comments on this initial section of the continue. For example, some choose between the evidentiary hearing discussion of cooperative relations. The commenters read the proposal to amend provided by TGA and a stay of a final most common issue raised was the § 4.477 to require a permittee to choose decision. Other commenters were abolition of grazing advisory boards between the evidentiary hearing concerned about possible fiscal impacts (GABs). This issue is covered below provided by TGA and a stay of a final of the provision. Other commenters under the discussion of § 1784.6–5. decision. A permittee will not have to stated that the proposed provision Some comments suggested that the choose between an appeal and would speed implementation of needed change from ‘‘authorized requesting a stay. Both will be available. grazing decisions. representative’’ to ‘‘designated Federal officer’’ was designed to give greater The provisions adopted today make The provisions adopted today make authority and stature to Federal the procedures for appealing a final the procedures for appealing a final personnel. decision consistent with standard decision consistent with standard Departmental procedures for other types Each RAC or other advisory Department procedures for other types committee will have a ‘‘designated of appeals. Any person whose interest is of appeals. These procedures are adversely affected by a decision of the officer of the Federal Government,’’ as detailed in regulations of the required by section 10(d) of FACA, who authorized officer has full appeal rights. Department’s OHA, Title 43 of the Code Standing to maintain an appeal will will chair or attend each meeting. The of Federal Regulations, Part 4, Subpart continue to be determined by OHA. regulations implementing FACA, 41 B. Any person whose interest is Except in situations where immediate CFR subpart 101, use the term adversely affected by a decision of the action is needed for resource protection ‘‘designated Federal officer’’ and authorized officer still has full appeal in accordance with the standards set prescribe the authority and rights. Except in situations where forth in §§ 4110.3–3(b) and 4150.2(d), responsibility of that position. As immediate action is needed for resource BLM will issue proposed decisions, required by FACA, this officer will call protection in accordance with the which may be protested. Except in the meetings of the committees and will standards set forth in §§ 4110.3–3(b) and situations where immediate action is develop the agendas of the meetings. 4150.2(d), decisions will not be in effect needed for resource protection in In accordance with the above accordance with the standards set for in until after the 30-day appeal period. An discussion, the Department has §§ 4110.3–3(b) and 4150.2(d), no appellant can also file a petition for a concluded that the final rule will decisions will be effective until after the stay of the decision while final include these changes as proposed, 30-day appeal period. The applicant can determinations on appeal are being because it intends that cooperative also file a petition for a stay of the considered. If a petition for a stay is relations be conducted in conjunction decision while final determinations on filed along with the appeal, the decision with FACA and the language and appeal are being considered. If a will be temporarily stayed for up to 45 requirements of this final rule should be petition for a stay is filed along with the days after the end of the period for filing consistent with FACA. appeal, the decision may be temporarily an appeal (for a total of up to 75 days) Section 1784.2–1 Composition stayed for up to 45 days after the end while the petition is being considered. of the 30-day period for filing an appeal If a stay is granted, it will suspend the Under the proposed rule, this section while the petition is being considered. effect of the decision until final would have been amended by If a stay is granted, it will suspend the disposition of the appeal. eliminating paragraph (b), and effect of the decision until final The provision will not require an amending existing paragraph (c), which disposition of the appeal. Finally, appellant to choose between this is redesignated new paragraph (b). parties have the option to seek process and the hearing on the evidence Previously, paragraph (b) established an administrative or judicial review of a granted by TGA. The hearings eligibility requirement for grazing decision that is put into immediate referenced in this provision do include advisory board members. This effect. a review of the evidence on the case. A requirement would no longer have been permittee will not have to choose necessary with the discontinuance of V. Section-by-Section Analysis and between having such a hearing and the grazing advisory boards. Responses to Public Comments requesting an appeal. Both will be New paragraph (b) would have added Part 4 of Title 43—Department Hearings available. to existing education requirements for and Appeals Procedures In accordance with the above committee membership new discussion, the Department has decided requirements that individuals can Section 4.477 Effect of Decision qualify to serve on advisory committees Suspended During Appeal to adopt the provision as proposed. The phrase ‘‘pertaining to the period during if they have experience or knowledge of The proposed rule would have which a final decision will not be in the geographic area covered by the revised the heading of this section to effect’’ is added to clarify that the committee, and they have demonstrated reflect that grazing decisions would no reference to § 4.21(a) relates to those a commitment to collaborate in seeking longer automatically be suspended specific provisions. solutions to resource management when an appeal is filed as provided in issues. the proposed revision of 43 CFR subpart Part 1780—Cooperative Relations Many commenters expressed 4160, and would also have removed Section 1784.0–5 Definitions confusion about the Department’s use of other references to suspension of the the terms ‘‘board,’’ ‘‘council’’ and decision of the authorized officer upon The proposed section would have ‘‘committee.’’ In this final rule, appeal. replaced the term ‘‘authorized ‘‘council’’ is used to refer exclusively to Comments on this section addressed representative’’ with ‘‘designated the RACs. ‘‘Committee’’ is used in several major issues. Some commenters Federal Officer’’ to make the §§ 1784.0–5, 1784.2–1, 1784.2–2, asserted that the proposal did not terminology of the rule more consistent 1784.3, 1784.5–1, and 1784.5–2. These 9910 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations sections have application to all types of make a substantive contribution to the issue, but should be excluded from any advisory committees, not just RACs. A committee’s deliberations. voting required. RAC is a type of advisory committee. In accordance with the above Another commenter provided a Sections 1784.6–1 and 1784.6–2 discussion, the Department has decided suggested definition of indirect interest concern RACs. ‘‘Board’’ is not used in to adopt the provision as proposed. that includes any situation in which this final rule. outside interests, of whatever nature, Section 1784.2–2 Avoidance of Many commenters on this section might lead to substantial interference Conflict of Interest supported the concept of broadening with or disregard for a duty of serving membership on the councils. In the proposal, paragraph (a)(1) of on a grazing council or committee. Commenters noted that because useful this section would have been amended Commenters challenged the legal knowledge and expertise is widely to allow permittees and lessees to serve basis for a conflict of interest provision. distributed in society, membership of on any advisory committees, including They asserted that if it is based on the advisory committees should be RACs and their subgroups. This change Ethics in Government Act, that the law broadened to take advantage of this. would have been made to ensure that is limited to Federal employees or paid Some commenters specifically permittees and lessees, as important advisors, and that ethical standards objected to changing this section. There stakeholders in the management of under Federal law are not limited to were a number of comments about the public lands, could provide input to financial gain but include the use of specific composition of the councils. advisory committees so that the one’s official position to promote a Most of these comments were also committees would have been able to personal viewpoint. ‘‘Conflict of interest’’ is an accepted addressed to subsequent sections, develop recommendations based on legal concept that generally refers to ‘‘a especially § 1784.6–1. Since these direct community and user input. clash between public interest and the comments related to the Department’s Paragraph (b) would have clarified that private pecuniary interest of the proposals concerning the makeup of the no advisory committee member could individual concerned.’’ (Black’s Law RACs, they are discussed under that have participated in any matter in Dictionary, 5th Edition, 1979, p. 271). section, below. which the member had a direct interest. The concept applies to situations where The proposal included a new paragraph Some commenters made an identical a committee member, who is serving a (c), which would have provided that suggestion to change the last clause of public interest, has private financial § 1784.2–1(b) by striking the members of RACs have to disclose their interests that might conflict with his or requirement that council members have direct or indirect interest in Federal her public role. This would include ‘‘demonstrated a commitment to grazing permits or leases administered holding a permit that might be impacted collaborate in seeking solutions to by BLM. by the deliberations of a RAC. resource management issues.’’ One The Department received many The provision does not apply only to comment stated that commitment comments on this section. Many permittees or lessees. It applies to all without necessary concurrent expertise commenters believed the conflict of advisory committee members. The is useless, and that accommodation for interest provisions applied only to provision does not apply to situations in regional differences in a broad range of ranchers, and stated that such which an individual’s interest in the specific information on each area provisions were unfair and should deliberations of a committee is not should be a necessity. A number of apply to all members of the councils. financial. The provision does not refer commenters questioned who or what Many commenters spoke to the to cases where an individual has a should determine adequate experience, membership of environmentalists on the membership in an organization that is in and others suggested a better definition councils. Commenters asserted that litigation with the government, unless was needed. environmental groups have a direct the individual has a pecuniary interest A commitment to collaborative conflict of interest. Some asserted that in the outcome of the litigation. decisionmaking is critical to the success all users of specific areas have an Furthermore, it does not refer to cases of these committees. The Department interest in that area, and should be where an individual might develop has concluded that the final rule will excluded from serving on a council reports for another organization that in adopt the proposed language requiring studying the situation in that area. turn might influence agency decisions. both appropriate expertise and a Commenters stated that allowing Permittees and lessees were commitment to collaborative members of national or regional specifically mentioned in this provision decisionmaking, because such a balance environmental groups to serve violated to draw attention to the fact that the is the best way to assure the success of the local concept of the RACs. proposed rule broadened the any advisory committee. A number of commenters asserted opportunities for participation by such FACA requires that the head of an that permittees or lessees who were persons. Under the previous regulations agency appoint members to any involved in an issue should be involved at § 1784.2–2, permittees and lessees committee providing consensus advice in the process, so they would have normally would have been prohibited to the agency. In the case of RACs, the ownership of or support the solution from serving on any committees Secretary must appoint members. In developed in a RAC. Others suggested advising BLM except for grazing making final selections of RAC that since permittees and lessees are advisory boards. Under the provision members, the Department will make bound by the terms and conditions of adopted today, permittees and lessees determinations as to what is adequate their permits or leases, and by the can participate on the broader based experience. Since geographic areas provisions of AMPs, it would seem only RACs or on any other advisory covered by individual RACs will be proper to allow permittees or lessees on committee. highly variable it would be difficult to a council to provide input into the The concepts of ‘‘direct’’ and define this term too narrowly without management decisions which will affect ‘‘indirect’’ interest refer back to the unduly limiting the flexibility which that grazing allotment. One comment basic principle of conflict of interest, will be needed to ensure that each suggested that individuals with an and refer to financial matters. Both council includes members who will interest in an issue should be allowed terms are defined in common usage. represent a broad range of interests and to participate in the discussions of the ‘‘Direct’’ interest refers to an interest Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9911 which is certain, not in doubt or will still not normally be allowed to by individual councils if needed to contingent on some other factor. serve on advisory committees, except provide additional procedural guidance. ‘‘Indirect’’ interest refers to an interest for the general exception introduced by Many comments were received on contingent on another factor, or through this rule for grazing permittees or membership service and tenure. a third party. In the case of permittees, lessees, under special circumstances Comments included the following: a an indirect interest will generally be an such a person may serve on a public official’s term on a committee interest in a permit or lease that is committee. In such case, the person should coincide with the term of office, through a third party, such as a child, would be required to disclose his or her vacancies should be filled in the same spouse, business partner, or other interests. manner as positions were originally affiliate. filled, members should be selected on The rule as finalized allows Section 1784.3 Member Service the basis of merit, and membership permittees and lessees with financial The proposed rule would have should be staggered to achieve interests to serve on committees, thus established that appointments to continuity. Several comments suggested broadening the base of advice available advisory committees would have been that members should serve for longer to the Department. This provision for two-year terms unless otherwise than two years so they would become simply requires disclosure of interests specified in the charter. Specific familiar with issues. Some comments by advisory committee members, and references to grazing advisory board, indicated that two-year limits should be prohibits them from participating in district advisory council and National established. Other comments supported specific matters in which they have Public Lands Advisory Council the view that charters should allow such interests. It does not prevent appointments, terms and election lifetime membership. Some comments persons with a legal interest from procedures, would have been removed. suggested that members should be serving on committees. Also, the provisions for elected. Some of these comments Comments concerning application of reimbursement of committee members’ suggested that members should be conflict of interest provisions caused the travel and per diem expenses would elected by grazing permittees and Department to reexamine the types of have been modified to make clear that lessees. interests that would have to be individuals selected by committees to Under FACA, the Department has disclosed by committee members. In the provide input, but who themselves are some discretion regarding the terms of final rule, as detailed below, the not appointed committee members, service for members. Generally, member Department has expanded the list of would not have been eligible for terms are coterminous with the term of interests that might be held by persons reimbursement. This provision was the charter. The Department intends to who might serve on RACs and which necessary to limit costs. follow this general practice with RACs, must be disclosed. Several comments were received on except where special circumstances In the final rule, the Department has the charters and chartering process for require otherwise. For example, the sought to correct any confusion between advisory committees. Some comments Department intends to appoint initial the terms ‘‘council,’’ ‘‘committee,’’ and indicated that as proposed, the changes members to staggered terms, so ‘‘board,’’ as discussed at § 1784.2–1. would create the need for a new charter members’ terms will not all terminate in Conflict of interest provisions apply to for each committee which would result the same year. This ensures that there all advisory committees that advise the in a lack of continuity in committee will always be experienced members on Department as well as to the RACs. functioning. a council. The Department expects that In accordance with the above Today’s action amends the general some members will be reappointed, discussion, the Department has advisory committee regulations found at providing additional continuity to the concluded that the final rule should 43 CFR Subpart 1784. These general councils. These practices have been adopt a modified version of the regulations contain standards and used successfully in the past. proposed rule. Modifications have been procedures for the creation, operation As explained in the discussion of made to ensure consistency in the use and termination of advisory committees § 1784.2–1, appointments to the of the terms ‘‘council’’ and to advise the Secretary and BLM on advisory councils will be by the ‘‘committee,’’ and for consistency with matters relating to public lands and Secretary, as required by FACA. other changes to the proposal regarding resources under the administrative Secretarial appointment is also required the structure of RACs, discussed below jurisdiction of BLM. The proposed by FLPMA. The Department will seek under §§ 1784.6–1 and 6–2. amendments must comply with the nominations from Governors, interested Additionally, the word ‘‘multiple’’ is requirements of FACA. Thus the groups and private citizens. Members eliminated in this section, and in all Department’s discretion is limited by will qualify to serve on advisory subsequent sections. The Department the terms of FACA. committees because their education, has made this decision to simplify the FACA directs that advisory training, or experience enables them to name of the councils. committees shall terminate within two give informed and objective advice on In final paragraph (c), the phrase years of establishment, unless renewed. matters of interest to the committee. ‘‘leases, licenses, permits, contracts, or At the time of renewal a new charter Decisions about replacing members claims which involve lands or must be filed. The Department expects appointed to fill the position of the local resources, or in any litigation which that charters will look substantially the elected official when the member’s involve lands or resources administered same each time they are renewed, elective term expires will be made on a by the Bureau of Land Management,’’ is although changes may be made if case-by-case basis. Existing paragraph substituted for the phrase ‘‘Federal experience suggests revisions are (b)(2), which by today’s action is grazing permits or leases.’’ This last needed. The charter will meet the redesignated (a)(2), provides for filling change is made for consistency with the requirements of FACA, but will be vacancies occurring by reason of principle that this provision applies to relatively general in nature. Charters removal, resignation, death, or all types of financial interests. The will include provisions such as council departure from elective office. Such phrase adopted is consistent with that purpose and responsibilities, vacancies are to be filled using the same in existing paragraph (a) of this section. membership requirements, and terms of method by which the original While persons who hold such interests appointments. Bylaws may be prepared appointment was made. Under existing 9912 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations paragraph (b)(1), which by today’s and increased cooperation among 1784.6–2 and 1784.6–3 would have action is redesignated (a)(1), BLM must stakeholders. been replaced by new sections. replace members of committees who are The Department anticipates that the No comments were received on the serving in the elected official position, localized teams will be in existence for proposals relating to §§ 1784.6–2 and 6– and who leave office. It may be possible limited time periods and will focus on 3. A number of comments were received in some cases for the member to fairly narrow issues. As a result, the concerning §§ 1784.6–4 and 6–5. continue to serve on the council in Department has concluded that Comments directed to § 1784.6–1 have another appointed position. members of these teams who are not been addressed below in the discussion Comments were received both for and also members of the parent advisory of the new provisions in that section. against BLM payment of travel and per council will not be reimbursed for travel Many commenters stated that the diem for council members. Some and per diem. The Department is also grazing advisory boards’ members had comments suggested that members making the decision not to reimburse both knowledge of and an interest in the should volunteer their time and expenses of these localized teams in land. Some commenters who supported expenses and some comments suggested order to limit the expenses incurred by establishment of the RACs stated that that non-resident members should pay BLM and the Department. However, the the grazing advisory boards should also for their own travel. Other comments final rule allows BLM to constitute a be retained; others stated that the questioned whether advisory committee special function subgroup such as a grazing advisory boards should be costs would escalate over time and technical review team and reimburse abolished. whether councils would be in session RAC members for travel expenses. In Grazing advisory boards have served all of the time. One comment addition, the Department has the a useful purpose in providing the questioned why members of resource authority to purchase services in Department with valuable input from area councils should be reimbursed, but support of an advisory council, and on permittees regarding grazing issues. not rangeland resource teams or occasion may do so. However, the statutory provision in technical review teams, and suggested In accordance with the above FLPMA, section 403, establishing that BLM establish technical teams and discussion, the Department has decided grazing advisory boards expired by its reimburse the technical team members. to adopt a version of the proposed rule. own terms on December 31, 1985. Since FLPMA (43 U.S.C. § 1739), as Several minor changes are made in then, the boards have been authorized amended by PRIA (43 U.S.C. 1908), paragraph (d). All of these changes are only by Secretarial order. For several requires establishment of advisory intended to clarify that this section reasons, the Department has concluded committees representative of major applies to all advisory committees, not that it will proceed with its proposal to citizen interests concerned with just RACs. References to resource abolish the boards and to rely on one resource management planning or the review teams and technical review general form of advisory committee, the management of public lands. The RACs teams are omitted from the final version RACs. While grazing advisory boards will fulfill this requirement. Section 309 of the rule for that reason, and for have been useful, the Department of FLPMA provides that ‘‘members of consistency with the models of RACs believes that more collaborative public advisory councils shall serve without finalized today in §§ 1784.6–1 and 6–2. rangeland management requires a pay, except travel and per diem will be Those terms are replaced with a more broader scope of interests advising BLM. paid each member ** *’’ Regulations general reference to ‘‘subgroups.’’ The function of grazing advisory boards, at 43 CFR subpart 101, Federal Advisory as defined by FLPMA, was limited to Committee Management, also allow Section 1784.5–1 Functions and making recommendations to payment of travel expenses and per Section 1784.5–2 Meetings management concerning the diem. These sections would have been development of AMPs and the The objective of RACs established amended by replacing the term utilization of range betterment funds. under these regulations is to make ‘‘authorized representative’’ with the While grazing advisory boards may have available to the Department and BLM term ‘‘designated Federal officer.’’ These included some individuals not involved the advice of knowledgeable citizens changes would have provided in grazing, this was not uniformly the and public officials regarding both the consistency with the terminology of case. RACs will address a full range of formulation of operating standards and FACA. resource management issues, including guidelines and the preparation and No comments were received that AMPs and planning for the expenditure execution of plans and programs for the pertained solely to these sections. The of range betterment funds and will use and management of public lands, Department has decided to adopt this broaden public involvement in the their natural and cultural resources, and provision as proposed. process. the environment. The Department has All groups that provide advice to the concluded that to ensure broad and Section 1784.6–1 National Public Federal government are subject to the regular participation by members, it will Lands Advisory Council, Reserved requirements of FACA, unless continue to compensate advisory Sections 1784.6–2 and 1784.6–3, specifically excluded by statute. FACA committee members for travel and per Section 1784.6–4 District Advisory specifies a series of requirements for diem expenses. The Department does Councils, and Section 1784.6–5 committees and other bodies advising not anticipate that operating these Grazing Advisory Boards the Federal government, including that committees will generate a need for References to the National Public they be balanced in terms of substantial increases in Federal funds in Lands Advisory Council, district representation, have notices of meetings the future. In any event, funding is advisory councils and grazing advisory published in the Federal Register and subject to future review in the budget boards would have been removed in be open to the public, keep various and appropriations process. Moreover, their entirety and replaced with three types of records, and implement other advisory committees are required under new sections that would have procedural safeguards that will assure FLPMA and the Department has established multiple resource advisory public involvement in resource concluded the committee structure councils and associated input teams. management issues. The Department adopted in the rule will reap tangible Sections 1784.6–4 and 1784.6–5 would believes it is important that rewards in improved land management have been removed. Reserved sections management of the public rangelands Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9913 involve a wide range of public served by organizing an MRAC along and from representatives of dispersed involvement. To achieve this, and to boundaries other than BLM district recreational activities; and five would comply with FACA, the Department has administrative boundaries. The have been selected from persons who concluded that grazing advisory boards determination of the area for which an hold State, county, or local elected should be abolished and RACs created. MRAC would have been organized office, and representatives of the public- In accordance with the above would have been the responsibility of at-large, Indian tribes within or adjacent discussion, the Department has the affected BLM State Director. to the area, natural resource or natural concluded that the final rule should Organization by ecoregion boundaries science academia, and State agencies adopt provisions as proposed because would have been encouraged where responsible for the management of fish these provide the best alternative for appropriate. The Governors of the and wildlife, water quality, water rights, promoting cooperative relationships in affected States and established MRACs and State lands. The proposed rule resource management. could have petitioned the Secretary to would have required that at least one of Section 1784.6 Membership and establish an MRAC for a specific BLM the members appointed to each council Functions of Resource Advisory resource area. must hold elected State, county, or local MRACs would have provided advice Councils and Council Subgroups office. An individual would not have to BLM officials to whom they report been allowed to serve on more than one In the proposal, the title of this regarding the preparation, amendment MRAC at any given time. section would have been changed for and implementation of land use plans. The proposed rule would have consistency with subsequent changes in The councils would also have assisted required council members to have §§ 1784.6–1 through 6–3. It would have in establishing other long-range plans demonstrated experience or knowledge referenced multiple resource advisory and resource management priorities in of the geographic area for which the councils (MRACs), as well as rangeland an advisory capacity. The Department council provides advice. It would have resource teams and technical review intended that this would have included required that all members of MRACs teams. providing advice on the development of attend a course of instruction in the A few comments were addressed to plans for range improvement or management of rangeland ecosystems this section, but covered issues relating development programs and included in that had been approved by BLM State to the substance of the following the proposed amendments to 43 CFR Director. This requirement was intended sections. They will be discussed under subpart 4120 a requirement for to ensure a common general the pertinent sections below. consultation with MRACs in the understanding of the resources Because the Department has planning of range improvement or management principles and concerns concluded that the final rule should development programs. MRACs would involved in management of the public adopt a more flexible model for public not have provided advice on personnel lands. participation than was envisioned in the management, nor would they have The proposed rule would have proposal, it has changed this title to provided advice on the allocation and provided that an official meeting of an reflect the three model version of RACs expenditure of funds subsequent to MRAC required at least three members adopted in final rule §§ 1784.6–1 and 6– budget planning. from each of the three broad categories 2. References to rangeland resource Appointments to MRACs would have of interests from which appointments teams and technical review teams are been made by the Secretary. In making were made. Formal recommendations of changed to ‘‘subgroups’’ for that reason, appointments, the Secretary would have the council would have required and ‘‘multiple’’ is omitted from the considered nominations from the agreement by at least three members of name of the RACs, as discussed at Governor of the affected State and each of the three broad categories of § 1784.6–1. nominations received in response to a interests that attend an official meeting. MRACs would have had the option of Section 1784.6–1 Resource Advisory public call for nominations. The Secretary would have encouraged requesting a Secretarial response where Councils—Requirements Governors to develop their nominations the MRAC believed its advice had been Under the proposed rule, this section through an open public process. In arbitrarily disregarded by the BLM would have provided for the reviewing nominations submitted by the manager. If requested, the Secretary establishment of MRACs. One MRAC Governors, the Secretary would have would have responded directly to a has been established for each BLM considered whether an open public council’s concerns within 60 days. Such administrative district except when process was used. All nominations a request would have required prohibited by factors such as limited would have been required to be agreement by all 15 members. The interest in participation, geographic accompanied by letters of Secretary’s response would not have isolation in terms of proximity to users recommendation from interests or constituted a decision on the merits of and public lands, or where the organizations to be represented that are any issue that is or might become the configuration and character of the lands located within the area for which a subject of an administrative appeal and is such that organization of councils council is organized. would not have precluded an affected along BLM district boundaries is not the The Secretary would have appointed party’s ability to appeal a decision of the most effective means for obtaining 15 members to each MRAC. Five authorized officer. advice on the management of all the members would have been selected The Department received many resources across an entire area. The from persons representing commodity comments on this section of the exceptions would have been intended to industries, developed recreational proposal. Many commenters were provide for situations such as those activities, or the use of public lands by opposed to the abolition of the grazing encountered in Alaska where it is off-highway vehicles; five would have advisory boards. Comments on the difficult for interested persons to been selected from representatives of grazing advisory boards have been participate because of extreme travel nationally or regionally recognized covered above in the discussion of distances, or situations where environmental or resource conservation § 1784.6–5. Many were opposed to the management of neighboring BLM groups and wild horse and burro formation of the MRACs. Others said districts or portions of districts interest groups, from representatives of that the proposed system was in direct involving similar lands can best be archeological and historical interests, conflict with the requirements for BLM 9914 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations to coordinate with State and local councils from being balanced and A number of commenters spoke to government in the decisionmaking violates FACA. One comment stated council size. Some stated they were too process because the new system would that because salmonids were so large, a few thought they were too small. be unwieldy and expensive. Some important in many areas, someone on Some stated that the basic principle commenters stated that the councils the council should be knowledgeable of should be balanced and broad would not bring about significant salmonids. representation of public concerns, not a changes in the health of our public Other comments regarding specific number. A number of specific lands, but would perpetuate local membership addressed lending recommendations for MRAC control of public lands. institutions, academicians, Indian membership and size were made. Other commenters were opposed to tribes, and other specific groups. Numerous substantive suggestions the MRACs because they said that the Many commenters said that it was were made for the course of study. Federal agencies were being paid to important for the MRACs to be made up Other comments included a statement manage the public land for public of people who had local interests and that the proposal differed in several benefit, and they should do so. Some knowledge, and stated that all members material respects from the products of commenters charged that the should be local. Other related comments the Colorado Working Group. Some Department was trying to subordinate or addressed the need for local expertise, commenters suggested that various eliminate its legal obligations under a financial stake in the land, and other terms be defined including ecosystem, sections of PRIA. Others stated that the factors. Some asserted that council biodiversity, environmentalist, public is involved in range decisions members must share a primary rangeland ecosystem, historical and through the NEPA process and so commitment to improving grazing as a archeological interests, direct interest, MRACs were unnecessary. land use. Some of these same dispersed recreational activities, Many commenters supported commenters asserted that all members insufficient interest, unbalanced establishment of the MRACs. A typical should be required to demonstrate their viewpoint, nationally or regionally comment stated they were an knowledge of rangeland, vegetation, and recognized, and ecosystem boundaries. improvement over the grazing advisory livestock management, or related areas. Some commenters suggested that the board system. Several of the Many commenters were concerned MRAC should take no actions to which commenters who supported with the process of selecting members. the permittees or lessees involved did establishment of the councils suggested Suggestions included that members be not agree. they be tried on an experimental basis. elected by the permittees, or appointed The Department’s decisions to form Many commenters spoke to the make- by the county commissioners or the the RACs and to abolish grazing up of the MRACs. Most of these Governor. Others objected to their being advisory boards have been discussed at commenters stated that ranchers would appointed by the Governor or by the § 1784.6–5, as is the need for greater be under-represented. Some pointed out Secretary. Many commenters objected to public involvement than that provided that the practical, ecological and self-nomination of individuals to the by the grazing advisory boards. General managerial knowledge of permittees is MRACs. requirements of FACA, which have essential, and that therefore they should A number of commenters spoke on dictated a number of the provisions be a required component. Some operation of the MRACs. Some stated adopted today, are discussed at suggested that council membership that no expenses should be paid. Some § 1784.2–1, Composition. Under the should reflect the major users of the suggested that strict standards on requirements of FACA, members of land in each specific area. conduct and meetings should be committees advising the Federal Some commented that it was developed to prevent one interest from government must be appointed by the discrimination to require dominating. Others suggested that head of the agency, in this case the environmentalists to be members of recommendations from the local council Secretary. State and local government national organizations. Others said it should have some jurisdiction over the will be included in the process through was unfair to exempt the staffs of actions of the Federal land management representation on the RACs, as well as environmental organizations from the agency. Some commenters stated that being consulted on numerous specific residency requirements which they the provision prohibiting councils from types of decisions, such as on believed were imposed on all other providing advice on funding and designation or adjustment of allotment council members. personnel matters was too restrictive. boundaries (§ 4110.2–4), increasing Many commenters spoke to Some objected to the Secretarial appeal permitted use (§ 4110.3–1), participation of government employees provision. Several asked whether the implementing reductions in permitted on the councils. Some supported such MRACs would give recommendations or use (§ 4110.3–3), development of AMPs participation especially by advice, or suggested that the advisory (§ 4120.2), and other BLM decisions. See representatives of State wildlife council serve as a reviewer of proposed the discussions below on those sections agencies. Others were opposed to decisions of the authorized officer. for additional information. participation by government employees Some commenters raised a concern The Department has concluded that because they believed BLM would about the development and content of the new system will be workable and coordinate with such agencies anyway, the charter, and about evaluation of the neither unwieldy nor excessively and the councils should be for the councils. Others were concerned about expensive. Obtaining input from all government to get public input. the requirement for consensus because interested parties on BLM decisions Some stated that prospective members they thought it would result in a serious early in the process will in the long run should be supported by letters of delay in decisionmaking. reduce objections and appeals. The recommendation from individuals and Some commenters spoke to the Department anticipates that this will not local associations of the area they would jurisdiction of the MRACs and how that only expedite implementation of agency represent. Others specifically were would be determined. A number stated actions, but concurrently will reduce opposed to the requirement for letters of they should be based on BLM districts overall rangeland management expenses recommendation. Commenters said that or on ecoregions. Some objected to the by making the program more efficient. to require letters of recommendation State Director being authorized to For example, the Department does not from ‘‘local interests’’ would prevent the determine the area covered by a council. expect travel expenses to be Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9915 significantly greater than they were for strive to arrive at this outcome during requirements related to the mining or the grazing advisory boards, particularly the appointment of council members. timber industries here. with the addition of a residency Under the rule adopted today, The Department does not agree that requirement. The issue of costs of environmental members will not have to lending institutions should be specified advisory committees is discussed be members of national groups. All as a group to be represented on all further at § 1784.3, Member service. nominees to the RACs will be required RACs. Of course, persons from such The system will not necessarily be a to have letters of recommendation, but institutions could serve on the councils multilevel structure. Under the because the final rule requires residency as representatives of the local public, provisions adopted today, only the in one of the States within which the local elected officials, or other interests RACs themselves will be required. The area to be covered by the council is listed in this section of the final rule. other subgroups will be discretionary. located, the letter need not come from Similarly, academicians are listed as While the groups will be local, in a a local source. These requirements possible members because of their broad sense, the Department believes apply equally to all council members, ability to contribute to technical that providing for diverse participation environmentalists as well as commodity discussion of rangeland issues. through implementation of the interests. Additionally, all members will Therefore, the Department believes it is provisions adopted in this section of the be required to have some expertise or appropriate to limit membership of final rule will ensure that all interests knowledge that will be useful to a academicians, per se, to those involved are fairly represented. Furthermore, the council’s deliberations. in the natural sciences. However, an requirement for consensus, which is The Department agrees that academician with some other specialty retained in the final rule, will ensure representatives of other Federal agencies could participate as a member of the that the three groups represented will should not be members of the RACs. local public, as a representative of one have an equal say in making decisions, Other Federal agencies are normally of the other specified groups. and no one interest will be isolated by consulted about issues that affect them Academicians who are not in the majority vote. through other formal processes and do natural sciences are not prevented from The Department acknowledges that it not need to be provided access through serving on the councils. is the responsibility of BLM to manage the RAC structure. However, under The Department agrees that local the public grazing lands. However, FACA, each council must have one expertise is essential to effective several different statutes, including ‘‘designated Federal official’’ present at councils. The rule adopted today FLPMA, PRIA, and NEPA, call for each meeting. State agencies are a requires that members of RACs, public participation in decisionmaking different matter. While it is true that rangeland resource teams and other processes regarding such programs. A BLM will coordinate on many issues local general purpose subgroups must purpose of these RACs is to facilitate with State agencies, nevertheless the reside in the State, or one of the States, such participation, and their formation Department believes it will be useful, in within the jurisdiction of the council or and structure is fully consistent with some cases and depending on local subgroup. Additionally, the rule those legal requirements. While there circumstances, to include State requires demonstrated knowledge of the may be some initial complications in employees on the RACs. However, in geographic area. The Department does establishing the RACs, the Department the final rule, the Department has not agree that national environmental believes that they are critical to long- revised the discussion of the third group groups should be excluded, but again, term improvements in the management to limit participation of State employees representatives of such groups should of our public grazing lands. For that to representatives of State agencies have local knowledge and meet reason, the Department has decided not responsible for managing land, natural residency and other membership to try them on only an experimental resources, or water. criteria. basis. The Department has carefully The Department believes that the Furthermore, the Department does not considered the structure and functions requirement to have broad agree that all members should have a of the MRACs. In response to the representation from the three groups financial stake in the land or pay user concerns about under representation of specified in this section of the final rule fees. Anyone with a genuine interest in grazing interests, the Department agrees is a reasonably specific provision. It is the management of the public lands, that, to the extent possible, the make-up not feasible to specify in more detail and with expertise to make a of the commodity group on the council exactly what types of persons should be contribution, should be eligible to be should reflect the distribution of selected to ensure such representation. considered for council membership, so commodity interests in the area That is a decision that will have to be long as the person meets other represented by the specific council. For made on a case-by-case basis, depending membership criteria. example, if approximately 3/5ths of the on the nature of the population in an Similarly, the Department does not commodity interests in an area are area covered by a RAC, and on the agree that council members must share grazing operators, 1/5th are timber specific types of interest groups present a primary commitment to improving harvesters, and 1/5th are miners, the in that area. The Secretary, based in part grazing as a land use. While clearly the commodity group on the council should on nominations from the Governors, councils should provide advice on include 3 permittees or lessees, 1 timber will strive to ensure that each RAC is improving the grazing uses of the land, harvester, and 1 miner. Such a fairly representative of those groups. and grazing expertise will be an distribution will ensure that the Certainly, in many cases, tribal important component on the councils, necessary expertise is present to deal representatives should—and will—be many other issues are legitimate with technical issues which might come included on the councils. The concerns, including non-grazing uses of before a council representing that provisions of this section of the final the public rangelands. This is consistent specific geographic area. While the rule allow inclusion of mining, timber, with BLM’s responsibility to multiple Department does not agree that it is and other interests. However, this resources and uses. necessary or desirable to specify this in section deals specifically with the RACs Issues regarding selection of members the text of the rule, since in some cases that will be formed to provide advice on have been discussed at § 1784.2–1, it may be impossible to achieve these the public lands grazing program, and it Composition. The Department believes optimal numbers, the Department will is not appropriate to specify that self-nomination is an appropriate 9916 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations method of identifying individuals with approved by the Office of Management Composition. Additionally, the an interest in the management of the and Budget. Definition of the groups to Department notes that one of the public lands. All nominations must be be represented on each council in the purposes of the RACs is to fulfill the accompanied by letters of reference charters must be consistent with the requirements of section 309(a) of from interests or organizations to be requirements of § 1784.6–1(c). Specific FLPMA, which requires the Department represented. The Secretary will not be operating procedures for each council to form councils of 10 to 15 members. able to appoint to the councils all can be developed by that council and Furthermore, FACA requires that individuals who are nominated, either incorporated into a set of bylaws or councils advising the Federal by themselves or by other groups. other operational instrument. government have a balanced During the selection and appointment Development of the charter and issues membership made up of all groups process, the Department will strive to of the councils giving advice or having an interest in the issue on which establish council membership that recommendations are also discussed the council provides advice. The represents the three groups in a above in § 1784.2–1, Composition. The provisions for membership included in balanced fashion, and that includes only Department rejects the suggestion that the rule adopted today at this section members who meet the requirements to permittees not be bound by the will ensure implementation of those be informed, objective, knowledgeable recommendations of the councils unless statutory requirements. about the local area, and committed to they agree in writing. The councils will The Department agrees that input collaborative decisionmaking. provide recommendations to BLM, not from the Governor is critical to the Issues concerning payment of per directly to the permittees. Furthermore, success of the councils. However, under diem to council members have been the councils provide only advice. They the provisions of FACA, the Secretary discussed at § 1784.3, Member service. do not make decisions. It is the statutory must appoint the members of the The Department believes that the responsibility of BLM, through the councils. The Secretary will carefully requirements for consensus authorized officer, to make final consider nominees sent forward by the decisionmaking and balanced decisions regarding the management of Governors. Furthermore, discussions membership will prevent one group the public rangelands. Permittees and between the State Director and the from dominating the councils. Issues lessees will be bound to follow those Governor will be important in such as rules of operation can be decisions, subject to the administrative determining whether councils will be handled by the individual councils after remedies provisions in subpart 4160. set up on a State, District, or ecoregion they are constituted, as long as they The Department understands that it basis. The Department will develop a fulfill the requirements of FACA and may in some cases be difficult to course of study to ensure that council this rule. The councils cannot legally be achieve consensus, and that the members are fully qualified to make given jurisdiction over the actions of the development of consensus may be a recommendations to BLM concerning Federal land manager. While the time-consuming process. However, grazing management issues. Department expects that the consensus decisionmaking is at the The RAC provisions as proposed recommendations of the councils will heart of improving the grazing differed in some ways from the be carefully considered by local Federal management program. The Department Colorado model. While they were based managers, ultimately the Federal agency is committed to the concept that all to a considerable extent on that model, remains responsible for all decisions groups should work together to develop certain statutory requirements, made. recommendations regarding the BLM is constrained legally in many management of the public rangelands. including the provision in FACA that matters regarding personnel or funding. Decisions reached in this way will be council members be appointed by the The BLM could not be bound by advice owned by all parties involved, and there agency head, in this case the Secretary, from the RACs on such matters. will be significantly less likelihood of dictated that some provisions of the However, some funding matters clearly appeals and disputes, and greater Colorado model be revised. This final can be considered by the councils. For likelihood that effective actions will be rule adopts three RAC models, one of example, expenditure of range identified and implemented. In the long which, Model A, is based largely on the improvement funds will be considered. run, the Department believes that Colorado model. Again, however, By advising the agency on priorities, the consensus-based decisionmaking will certain changes had to be made to RACs may impact the expenditure of actually shorten the time required to accommodate legal requirements and other funds as well. reach a decision and implement it on the goals of this public rangelands The councils cannot appeal to the the ground. management program. Secretary, but they can request In response to the comments on Many of the terms for which Secretarial response, under the jurisdiction, the Department has commenters requested definitions have provisions of § 1784.6–1(i) of the final decided to allow considerable flexibility been discussed in the FEIS. Direct rule. The Secretary’s response will not in the area covered by any one RAC. To interest is discussed at § 1784.2–2, constitute a decision on the merits of that end, and to provide flexibility in Avoidance of conflict of interest. any issue that is or might become the other aspects of the RACs so they can ‘‘Dispersed recreational activities’’ is a subject of an administrative appeal and be constituted to suit local needs, the term used by BLM to refer to recreation will not preclude an affected party’s Department has incorporated into this that takes place outside of developed ability to appeal a decision of the final rule provisions allowing adoption recreational areas. Birding, hiking and authorized officer. of any one of three models. Those hunting are dispersed recreational While any interested person can models allow RACs to be formed on the activities. Definition of the term is provide input to the charters, the basis of State boundaries, BLM districts, outside the scope of these grazing Department will be responsible for or ecoregions. The boundary of the regulations. establishing a charter for the advisory RACs will be determined by the State The Department has corrected any councils. These charters must be Director, in consultation with the confusion resulting from the proposed consistent with the requirements of Governor and other interested parties. rule’s use of the terms council, board, FACA, and must be reviewed by the Size and composition of the councils and committee. This is discussed at General Services Administration and are discussed at § 1784.2–1, § 1784.2–1. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9917 Many of the commenters’ concerns Provisions in proposed paragraph (h) fall within the area for which the team and suggestions could not be reconciled regarding quorums and voting is formed. All nominations for within the framework of the specific requirements have been revised membership would have required letters proposal made on March 25, 1994. In consistent with the flexible models of of recommendation from the local order to be more responsive to those public participation adopted today. interests to be represented. The concerns, the Department has made a Rather than numbers of members being membership provisions were intended number of changes from the proposal in specified, the final provision requires to ensure that rangeland resource teams this final rule. that council charters all contain rules were able to represent key stakeholders The section is retitled, to indicate that defining a quorum and establishing and interests in providing input to the it now specifies those elements of procedures for sending more broadly organized MRACs. advisory councils which will be recommendations forward to BLM, and The proposed rule would have required to implement provisions of that such recommendations require required that all members of rangeland FACA, FLPMA, or the goals of agreement of at least a majority of the resource teams attend a course of improving the rangeland management members of the three groups defined in instruction in the management of program. Optional features are provided paragraph (c). This establishes a rangeland ecosystems that had been at final § 1784.6–2. The word minimum requirement. Each council’s approved by BLM State Director. The ‘‘multiple’’ is eliminated throughout the charter could require higher levels of Colorado Working Group developed a section. agreement. proposal for a ‘‘Range Ecosystem Most significantly, the Department Taken together, the Department Awareness Program’’ that would have has dropped much of the detail believes the provisions adopted today established a basic curriculum regarding RAC requirements from this fulfill the goal of broadening the base of including basic rangeland ecology, section of the final rule, and has public participation in rangeland human resource development, the substituted language that allows a more management decisions, while ensuring relationship of public land resources to flexible structure. Coupled with the that advice provided to the Department private lands and communities, and the provisions adopted in final § 1784.6–2 represents the views of a council which pertinent laws and regulations affecting this will allow a model for public is balanced in its membership, rangeland management. Rangeland resource teams would have participation to be selected for each knowledgeable about the land and had opportunities to raise any matter of State that best suits the State’s own issues, and committed to consensus concern with the MRAC and to request needs. decisionmaking. that the MRAC form a technical review Many of the wording changes in the Section 1784.6–2 Resource Advisory team, as described below, to provide final rule are consistent with the goal of Councils—Optional Features information and options to the council introducing flexibility. References to The proposed section would have for their consideration. rangeland resource teams and technical provided for the formation of rangeland Although no specific provision was review teams have been replaced with resource teams by an MRAC on its own made in the proposed rule, rangeland ‘‘subgroups.’’ Provisions in paragraph motion or in response to a petition by resource teams could have petitioned (a) that would have been specific to local citizens. Rangeland resource teams the Secretary for chartered advisory District based councils have been would have been formed for the purpose committee status. Chartered rangeland eliminated, since this final rule allows of providing local level input and resource teams would have been subject councils to be formed along State, serving as fact-finding teams for issues to the general provisions of 43 CFR part District, or ecoregion boundaries. pertaining to grazing administration 1780 and the provisions of the charter Provisions in paragraph (c) regarding issues within the area for which the prepared pursuant to FACA. membership have been changed to rangeland resource team is formed. Many of the commenters on this eliminate specific numbers of members, They would not have provided advice section opposed the formation of since these can vary under the directly to the Federal land manager. rangeland resource teams. Many reasons provisions of final § 1784.6–2. The Rangeland resource teams would have were given for this opposition. language regarding the membership of a consisted of five members selected by Some asserted that both rangeland local official is adjusted to conform to the MRAC, including two permittees or resource teams and the technical review FLPMA. A provision is added requiring lessees, one person representing the teams would be subject to FACA, unless that council members must reside public-at-large, one person representing they could be sequestered from BLM. A within one of the States within the a nationally or regionally recognized commenter suggested requiring that the geographic jurisdiction of the council. environmental organization, and one subgroups be fairly balanced. Others This wording was selected to person representing national, regional, opposed any requirement for members accommodate those cases where or local wildlife or recreation interests. to be local residents. ecoregion-based councils may cover an Members representing grazing Some other commenters stated that area in more than one State. Provisions permittees or lessees and the local the teams violate the requirement of regarding membership of State public-at-large would have been Section 8 of PRIA to consult, coordinate, employees have been consolidated for required to have resided within the area and cooperate. Many of the same clarity. Other minor revisions have been for which the team would have commenters asserted that the made in this section for clarity. provided advice for at least two years Department cannot change the groups Final paragraph (e) is modified from prior to their selection. The proposed targeted by Section 8. Some commenters the proposal to specify that the letters of rule would have required that at least stated that the teams were not needed, recommendation required of nominees one member of the rangeland resource would not be effective, would be costly, to the councils do not have to be from team be selected from the membership or would slow the planning and a locally based group. Since the of the parent MRAC. implementation process. Department has decided to introduce a Rangeland resource team members Some were concerned about how the residency requirement, as discussed would have had to be qualified by virtue teams would be formed. Some stated above, there is no need to require that of their knowledge or experience of the that they should be created by and letters of nomination also be local. lands, resources, and communities that report to BLM; others suggested that the 9918 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations interested public should be able to the area covered by the specific council environmental, and wildlife or request BLM to form a team; still others is located. The Department believes this recreation interests may not hold said they should be formed by the structure both assures compliance with Federal grazing permits or leases. At RACs. Others suggested that the FACA and encourages local level least one member must be selected from regulations should be flexible enough to participation in the decision-making the membership of the RAC. Members of let these teams consider issues other process. the rangeland resource teams must be than grazing. The development of the training residents of the State in which the area A number of commenters spoke to the course is discussed at § 1784.6–1. covered by the team’s jurisdiction is make-up of the rangeland resource This section, which in the proposal located. teams. Many supported a local was exclusively about rangeland The RAC will be required to select residency requirement for all members, resource teams, now presents three rangeland resource team members from others opposed the emphasis on local alternate models for public nominees who qualify by virtue of their residency. Many stated that all members participation, any of which can be knowledge or experience of the lands, should have a high level of expertise in chosen by a State Director, in resources, and communities that fall rangeland issues. consultation with a Governor and other within the area for which the team is Many different specific suggestions interested persons. Each model provides formed. All nominations must be about team make-up were received. specific details about four attributes of accompanied by letters of Others were concerned that these teams the councils: council jurisdiction, recommendation from the groups or be formed for a limited time, so that membership, quorum and voting interests to be represented. they would not be too expensive or requirements, and subgroups. All members of rangeland resource perpetuate themselves. A number of Model A is based on the work of the teams will attend a course of instruction specific comments were made on the Colorado Working Group on rangeland in the management of rangeland content of courses to be offered to team improvement. It has the following ecosystems that has been approved by members. Another asked how rangeland characteristics: BLM State Director. Rangeland resource resource teams would bring on-going (i) Council jurisdiction. The teams will have opportunities to raise consensus efforts like the Trout Creek geographic jurisdiction of a council will any matter of concern with the RAC and Work Group ‘‘closer to the process.’’ coincide with BLM District or ecoregion to request that BLM form a technical Many of the above concerns about boundaries. The Governor of the review team, as described below, to rangeland resource teams have been affected State(s) or existing RACs may provide information and options to the addressed in the foregoing discussion of petition the Secretary to establish a RAC council for their consideration. § 1784.6–1. As noted there, the for a specified BLM resource area. Technical review teams can be formed Department has decided to make (ii) Membership. Each council will by the BLM authorized officer on the significant changes from the proposal in have 15 members, distributed equally motion of BLM or in response to a this final rule. among the three groups specified in request by the RAC or a rangeland The Department has not adopted the § 1784.6–1(c). resource team to gather and analyze data suggestions on the makeup and (iii) Quorum and voting requirements. and develop recommendations to aid structure of the teams, and has decided At least three council members from the decisionmaking process. to retain the original proposal. However, each of the three groups from which Membership will be limited to Federal as discussed below, the final rule will appointments are made pursuant to employees and paid consultants. accommodate other models of public § 1784.6–1(c) must be present to Members will be selected based upon participation. If the rangeland resource constitute an official meeting of the their knowledge of resource team structure does not suit local council. management or their familiarity with conditions, a different model can be (iv) Subgroups. Local rangeland the specific issues for which the chosen. Similarly, groups such as the resource teams may be formed within technical review team has been formed. Trout Creek Work Group can be the geographical area for which a RAC Technical review teams will terminate incorporated into the process through provides advice, down to the level of a upon completion of the assigned task. the use of another model which allows single allotment. These local teams will Model B is based on the work of the the inclusion of groups of different provide local level input to the advisory Wyoming Steering Committee on the sizes. council. These teams may be formed Management of Federal Lands. It has the Rangeland resource teams or other under the auspices of a RAC on its own following characteristics: subgroups serving similar functions will motion or in response to a petition by (i) Council jurisdiction. The now be optional features under the local citizens. Rangeland resource teams jurisdiction of the council shall be required RACs. The final rule does not will be formed for the purpose of Statewide, or on an ecoregion basis. The provide for chartering of any subgroups providing local level input to the RAC council will promote Federal, State, and under FACA, and such subgroups will on issues pertaining to grazing local cooperation in the management of not advise BLM directly, but will administration within the area for natural resources on public lands, and provide assistance to the chartered which the rangeland resource team is coordinate the development of sound council to improve its ability to function formed. Rangeland resource teams will resource management plans and effectively. All special purpose, short consist of five members selected by the activities with other States. It will term groups will be formed exclusively RAC. Membership will include two provide an opportunity for meaningful by BLM and will be made up of Federal persons holding Federal grazing permits public participation in land employees, whether regular staff or or leases, one person representing the management decisions at the State level contract employees. Regarding public-at-large, one person representing and will foster conflict resolution residency requirements, the Department a nationally or regionally recognized through open dialogue and in the final rule at § 1784.6–1 has environmental organization, and one collaboration. decided to require that all RAC person representing national, regional, (ii) Membership. The council will members and members of general or local wildlife or recreation interests. have 15 members, distributed equally purpose local subgroups must be Persons selected by the council to among the three groups specified in residents of one of the States in which represent the public-at-large, § 1784.6–1(c) above, and will include at Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9919 least one representative from wildlife consultants. Technical review teams conducted fact finding and provided interest groups, grazing interests, will be limited to tasks relating to fact- input to the parent advisory council or minerals and energy interests, and finding within the geographic area and chartered rangeland resource team. established environmental/conservation scope of management actions for which Their function would have been limited interests. The Governor will chair the the rangeland resource team or RAC to specific assignments made by the council. provides advice. Technical review parent council, and been limited to the (iii) Quorum and voting requirements. teams will terminate upon completion geographical management scope of the The charter of the council will specify of the assigned task. MRAC or chartered rangeland resource that 80% or 12 members must be Model C was developed by BLM to team. Technical review teams would present to constitute a quorum and accommodate other structures of public have terminated upon completion of the conduct official business, and that 80% participation, consistent with the or 12 members of the council must vote requirements of FACA, FLPMA, and the assigned task. affirmatively to refer an issue to BLM. goals of this rangeland management Members of technical review teams Formal recommendations require program. It has the following would have been selected by the MRAC agreement of at least three council characteristics: or chartered rangeland resource team on members from each of the three groups. (i) Council jurisdiction. The the basis of their knowledge of resource (iv) Subgroups. Local rangeland jurisdiction of the council shall be on management or their familiarity with resource teams can be formed under the the basis of ecoregion, State, or BLM the issues involved in the assigned task. auspices of the Statewide council, down district boundaries. At least one member of each technical to the level of a 4th order watershed. (ii) Membership. Membership of the review team would have been required These local teams will provide local council will be 10 to 15 members, to be selected from the membership of level input to the advisory council. distributed in a balanced fashion among the parent advisory council or chartered They will meet at least quarterly and the three groups defined in § 1784.6– rangeland resource team. will promote a decentralized 1(c). administrative approach, encourage (iii) Quorum and voting requirements. Some of the commenters on this good stewardship, emphasize The charter of each council shall specify section specifically opposed the concept coordination and cooperation among that a majority of each group must be of technical review teams, saying they agencies, permittees and the interested present to constitute a quorum and would not streamline administrative public, develop proposed solutions and conduct official business, and that a functions, were not needed, would be management plans for local resources majority of each group must vote obstacles to change, and would be on public lands, promote renewable affirmatively to refer an issue to BLM expensive. Other commenters asserted rangeland resource values, develop Federal officer. that any such teams should be formed proposed standards to address (iv) Subgroups. RACs may form local by BLM under the provisions of FACA. sustainable resource uses and rangeland rangeland resource teams to obtain A number of commenters wrote to the health, address renewable rangeland general local level input necessary to make-up and operation of the teams, resource values, propose and participate the successful functioning of the RAC. and asserted that members must be in the development of area-specific Such subgroups can be formed in technical experts and should be local National Environmental Policy Act response to a petition from local citizens residents. documents, and develop range and or on the motion of the RAC. wildlife education and training Membership in any subgroup formed for Most of the commenters’ concerns programs. As with the RAC, an 80% the purpose of providing general advice about technical review teams have been affirmative vote will be required to send to the RAC on grazing administration addressed in the discussions of a recommendation to BLM. should be constituted in accordance §§ 1784.6–1 and 6–2. In response to Rangeland resource teams will not with provisions for membership in commenters’ concerns, the Department exceed 10 members and will include at § 1784.6–1(c). Additionally, BLM may has decided to require that any such least two persons from environmental or form technical review teams as needed technical team be formed exclusively by wildlife groups, two grazing permittees, to gather and analyze data and develop BLM. Because of the requirements of one elected official, one game and fish recommendations to aid the council. FACA, they will be made up exclusively district representative, two members of These teams may be formed at BLM’s of Federal employees, either regular the public or other interest groups, and own option or in response to a request staff or contract employees. Such a Federal officer from BLM. Members from the advisory council. technical teams could be formed under will be appointed for two-year terms by The Department believes that the any of the three models presented in the RAC and may be reappointed. No above three models for public § 1784.6–2, either at the request of a member may serve on more than one participation can be adapted to satisfy chartered committee or on BLM’s own rangeland resource team. the concerns and needs of all areas motion. The Department believes this is In addition, technical review teams which include public lands or other the best way to ensure that the can be established on an as-needed basis lands administered by BLM. by the BLM authorized officer in requirements of FACA are fulfilled, but response to a request by a RAC or Section 1784.6–3 Technical Review that the RACs have available to them rangeland resource team, in response to Teams special expertise to address technical a petition of local citizens, or on BLM’s Under the proposed rule an MRAC issues when needed. own motion. These teams will address could have established technical review Consistent with the above discussion, specific unresolved technical issues. teams, as needed, in response to a and the discussions of final §§ 1784.6– When the team is requested by the RAC petition of an involved rangeland 1 and 6–2, the Department is not or a rangeland resource team, its charge resource team or on its own motion. adopting this provision in the final rule. will be established jointly by BLM and Rangeland resource teams chartered Provisions allowing the formation of the council; membership will be under FACA could also have technical teams by BLM, as needed, are determined by BLM and will be limited established technical review teams. found in final § 1784.6–2. to Federal employees and paid Technical review teams would have 9920 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Part 4100—Grazing Administration— on the communities, not vice versa. rangelands to properly functioning Exclusive of Alaska Some suggested deleting ‘‘dependent conditions, embodies the concept that communities.’’ Some commenters took BLM, in order to fulfill its statutory Subpart 4100—Grazing strong exception to this particular responsibilities to the public Administration—Exclusive of Alaska; objective. They asserted that the rangelands, must renew its efforts to General Department was, with this objective, restore those areas that are not Section 4100.0–2 Objectives singling out the livestock industry for functioning properly. It emphasizes that The proposed rule would have favored treatment. attainment of healthy conditions is a amended the objectives statement for Regarding the objective on enhancing process that requires constant effort; part 4100 by including as objectives the productivity for multiple use purposes, West-wide healthy conditions cannot be commenters offered suggestions that preservation of public land and attained overnight. enhancement for multiple uses should The third objective, to promote resources from destruction and not be allowed to conflict with grazing orderly use, improvement and unnecessary injury, the enhancement of and that enhancing for multiple use development of the public rangelands, productivity for multiple use purposes, purposes must be subject to maintaining is unchanged from the proposal. It is the maintenance of open spaces and a healthy ecosystem. drawn directly from TGA (43 U.S.C. integral ecosystems, and stabilization of Many commenters were concerned 315(a)). It emphasizes that the the western livestock industry and with the references to ‘‘ecosystems’’ and rangelands are to be used and dependent communities. asked for a definition of the term. Some developed, but also that such use and The Department received many asked for a definition of ‘‘integral development must be done in an orderly comments on this section. Many ecosystem’’ while others were way, and that an integral part of the commenters said that the proposed concerned that the term would be used process should be improvement of the objectives statement was vague, to regulate private lands. rangelands. subjective, not achievable, and This final section is substantially The fourth objective, to establish unmeasurable. Others said that it was revised from the objectives presented in efficient and effective administration of antagonistic, and assumed that ranching the proposed rule. The provision as grazing of public rangelands, is based on operations are destructive. Some adopted today includes the following the work of the Colorado Working asserted the statement ignored the objectives: to promote healthy Group. The statement emphasizes that valuable contribution made by livestock sustainable rangeland ecosystems; to BLM’s administration of its program grazing as well as the improvements accelerate restoration and improvement must be both efficient and effective. The ranchers had made on the Federal lands. of public rangelands to properly rules adopted by today’s action are an Some pointed out that proper grazing functioning conditions; to promote important part of the Department’s does not harm the resources. orderly use, improvement and efforts to ensure that objective can be Many commenters suggested development of the public rangelands, achieved. additions to the list of objectives of the to establish efficient and effective The final objective, to provide for a rules. Many of these commenters administration of grazing of public sustainable western livestock industry supported using the objectives rangelands; and to provide for a and communities that are dependent identified by the Colorado Working sustainable western livestock industry upon productive, healthy public Group. It was suggested that the and communities that are dependent rangelands, is a modified version of an objectives should have a greater upon productive, healthy public objective included in the proposal. It emphasis on ecosystem management, rangelands. asserts that BLM has a responsibility to and should include standards and The new statements are based largely recognize the effects its actions may guidelines pertinent to the economic on commenters’ concerns. While all have on the western livestock industry. and social factors which affect the those concerns could not be However, the Department has reworded human environment. accommodated, the Department believes this objective from the proposal because Many commenters objected to the that the final rule represents the best it agrees with commenters’ concerns terms ‘‘destruction and unnecessary summary of the objectives of this that BLM’s program, in and of itself, injury.’’ This objective had been rangeland management program. cannot ‘‘stabilize the western livestock included to highlight the Department’s The first objective, to promote healthy industry.’’ responsibility under Section 315a of sustainable rangelands, is the key Largely as a result of public comment, TGA which requires the Department to component of the Department’s the Department has decided not to ‘‘preserve the land and its resources program. The statement is based on the adopt the proposed objectives from destruction or unnecessary work of the Colorado Working Group concerning preservation of rangeland injury.’’ Others asserted that the view and responds to the Department’s and resources from destruction and that ecosystems are static and can be some commenters’ concerns that the unnecessary injury; maintenance of the ‘‘preserved’’ was out of date. Many objectives should clearly state the public values provided by open spaces commenters spoke to the objective of objective of achieving healthy, and integral ecosystems; and maintaining the public values functional rangelands. It reflects the enhancement of the productivity of associated with open spaces and Department’s intent to make decisions public lands for multiple use purposes integral ecosystems, asserting that this regarding grazing on the public lands by prevention overgrazing and soil was not an appropriate objective for that will promote healthy conditions deterioration. These themes of the grazing regulations. across all the grazing lands. This proposed amendments are sufficiently A number of commenters spoke on embodies the concept that such covered in the more general objectives the objective concerning stabilization of decisions must be made on a adopted in this final rule. The objective the livestock industry and dependent coordinated basis and must consider of the previous regulations pertaining to communities. A typical comment other resource values that contribute to providing for the inventory and asserted that small ranches are often the health of the land. categorization, trends and monitoring of dependent on second jobs in town, and The second objective, to accelerate public lands on the basis of range that actually the ranches are dependent restoration and improvement of public conditions, is omitted as an unnecessary Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9921 statement of BLM’s internal working A definition of Conservation use is Suspension is redefined to reflect the procedures. added to mean an activity on all or a revision of the definition of the term In accordance with the above portion of an allotment for the purpose ‘‘preference.’’ Within this definition the discussion, the Department has adopted of protecting the land and its resources term ‘‘preference’’ is replaced with the objectives statement as amended. from destruction or unnecessary injury. ‘‘permitted use.’’ The term includes improving rangeland A definition of Temporary nonuse is Section 4100.0–5 Definitions conditions and the enhancement of added to refer to permitted use that may The proposal would have removed resource values or functions. be temporarily made unavailable for definitions of ‘‘Affected interests,’’ Consultation, cooperation and livestock use in response to a request by ‘‘Grazing preference,’’ and coordination is redefined to mean a the permittee or lessee. ‘‘Subleasing.’’ It would have amended process for communication between A definition of Unauthorized leasing definitions of ‘‘Active use,’’ ‘‘Actual representatives of BLM and the parties and subleasing is added to mean the use,’’ ‘‘AMP,’’ ‘‘Consultation, involved for the purpose of sharing lease or sublease of a Federal grazing cooperation and coordination,’’ information, obtaining advice, and permit, associated with the lease or ‘‘Grazing lease,’’ ‘‘Grazing permit,’’ exchanging opinions. sublease of base property, to another ‘‘Land use plan,’’ ‘‘Range A definition of Ephemeral rangeland party, without approval of the improvement,’’ ‘‘Suspension,’’ and is added to mean areas of the Hot Desert authorized officer, the assignment of ‘‘Utilization’’; and would have added in Biome (Region) that do not consistently public land grazing privileges to another alphabetical order definitions of produce enough forage to sustain a party without the assignment of the ‘‘Activity plan,’’ ‘‘Affiliate,’’ livestock operation but may briefly associated base property, or allowing ‘‘Conservation use,’’ ‘‘Grazing produce unusual volumes of forage to another party to graze livestock that are preference or preference,’’ ‘‘Interested accommodate livestock grazing. not owned or controlled by the public,’’ ‘‘Permitted use,’’ ‘‘Temporary Typically, these rangelands receive less permittee or lessee on the permittee’s or nonuse,’’ and ‘‘Unauthorized leasing than eight inches of rainfall each year lessee’s public land grazing allotment. and subleasing.’’ This final rule adds and lie below 3,200 feet elevation. This changes the existing definition definitions ‘‘Annual rangelands,’’ and Grazing lease and Grazing permit are which could be read to imply that no ‘‘Ephemeral rangelands.’’ redefined to clarify what forms of use forms of third party lease arrangements The final rule makes changes to the are authorized in leases and permits and could be authorized. proposed definitions of ‘‘affiliate’’ and to clarify that the documents specify a Utilization is redefined to mean the ‘‘consultation, cooperation and total number of AUMs apportioned, the consumption of forage by all animals coordination.’’ It makes minor technical area authorized for grazing use, or both. consistent with the definitions in BLM and clarifying changes to the proposed Grazing preference is redefined to Technical Reference 4400–3 and the definitions of ‘‘conservation use,’’ mean the priority to have a Federal Bureau Manual System for Inventory ‘‘grazing lease,’’ ‘‘grazing permit,’’ ‘‘land permit or lease for a public land grazing and Monitoring. use plan,’’ ‘‘range improvement,’’ allotment that is attached to base The Department received many ‘‘unauthorized leasing and subleasing,’’ property owned or controlled by a comments on this section. Some and ‘‘utilization.’’ It adds definitions of permittee, lessee, or applicant. The commenters wanted original definitions ‘‘annual rangelands’’ and ‘‘ephemeral definition omits reference to a specified left unchanged; others suggested further rangeland.’’ Otherwise, the definitions quantity of forage, a practice that was revisions, still others asked that are adopted as proposed. adopted by the former Grazing Service additional new definitions be added. The following specific actions are during the adjudication of grazing Many comments were received on the taken by this final rule. privileges. Like the Forest Service, BLM definitions of active use, actual use, Active use is redefined to include will identify the amount of grazing use conservation use, grazing preference or conservation use and exclude temporary (AUMs), consistent with land use plans, preference, permitted use, suspension, nonuse or suspended use. in grazing use authorizations to be and temporary nonuse. A number of A definition of Activity plan is added issued under a lease or permit. commenters expressed uncertainty to mean a plan for managing a use, or A definition of Interested public is regarding the concept of conservation resource value or use. An AMP is one added to mean an individual, group or use, some objecting to the inclusion of form of an activity plan. organization that has submitted written conservation use as an active use. Actual use is redefined to clarify that comments to the authorized officer Others indicated that the concept of the term may refer to all or just a portion regarding the management of livestock conservation use may be inconsistent (e.g., a pasture) of a grazing allotment. grazing on specific grazing allotments. with the policy objectives articulated in A new definition of Affiliate is added Land use plan is redefined to remove various statutes. for use in determining whether the implication that all management Other concerns with the concept were applicants have satisfactory records of framework plans will be replaced by that it implied that grazing is harmful to performance for receiving permits or resource management plans. the range, and that permittees applying leases or in receiving additional forage A definition of Permitted use is added for conservation use should pay the that becomes available for allocation to to define the amount of forage in an grazing fee and be required to maintain livestock grazing. allotment that is allocated for livestock improvements. These and other Allotment Management Plan is grazing and authorized for use, or comments on conservation use are more redefined to describe more clearly the included as suspended nonuse, under a appropriately addressed in the focus and purpose of the plan, and to grazing permit or lease. The term discussion of § 4130.2. make clear that an AMP is a form of replaces the AUMs of forage use The Department intends that activity plan. previously associated with grazing conservation use be an active use rather A definition of Annual rangelands is preference. than merely a non-use. Conservation use added to mean those areas which are Range improvement is redefined to is intended to protect the land and its occupied primarily by annual plants include protection and improvement of resources from destruction, improve and which are available for livestock rangeland ecosystems as a purpose of rangeland conditions, or enhance grazing during some years. range improvements. resource values. All of these goals are 9922 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations fully consistent with the requirements addition of the term ‘‘preference.’’ Many appropriate term to describe and of governing statutes. In fact, commenters interpreted the proposed quantify the number of AUMs of forage conservation use includes a variety of changes to mean that preference was being allocated. activities to improve rangeland being abolished. Others were concerned The comments on the proposed conditions. Because the land and the that unless preference refers to a definition of permitted use were similar forage involved are actively being specified quantity of forage, ranching to those relating to preference. Some devoted to accomplishing specific operations would be negatively commenters asked what would happen conservation-oriented objectives, they impacted. They stated that preference, to existing suspended AUMs under the are deemed actively used. The concept tied to a specific amount of AUMs, adds new concept of permitted use. Some of conservation use, and its application value and stability to ranching suggested that the proposed rule would to this program, are discussed more operations, for example, by enhancing limit grazing to what is stated in the fully at § 4130.2. the operator’s ability to borrow money. land use plan, and that this would In general, commenters expressed They also maintained that a preference effectively cancel the grazing some confusion regarding application of is a property right and that the proposed preference. These commenters the concepts of suspension and rule could result in a ‘‘taking.’’ And suggested that the result would be temporary non-use under the proposed some commenters expressed the view significant reductions in grazing, and definitions of these terms. In particular, that the proposed definition excluded that the regulation would thus ‘‘take’’ some commenters were concerned that owners of water or water rights and that the rights of the permittee. the definitions might be used by BLM to such owners deserve priority As they did with respect to restrict active use. consideration. preference, some commenters stated Temporary nonuse and suspension The Department has changed ‘‘grazing that the definition of permitted use remain options under the rule finalized preference’’ to preference or grazing would result in reduced economic today. Temporary nonuse is for the preference because the terms are used stability and would eliminate the convenience of a permittee’s or lessee’s interchangeably and to clarify that the collateral value of grazing permits. They livestock operation and must be term refers only to a person’s priority to expressed concern that the new included as a part of his or her receive a permit or lease, and not to a definition would negatively affect application each year. Therefore, BLM specific number of AUMs. The term property values and would adversely does not believe temporary nonuse ‘‘preference’’ was used during the affect the ability of the permittee to should be considered active use. The process of adjudication of available obtain financing. BLM will authorize changes in forage following the passage of TGA to Commenters further opposed the use temporary nonuse from year to year, but establish an applicant’s relative of the Land Use Plan to determine the temporary nonuse may only be standing for the award of a grazing permitted grazing use. They argued that approved by the authorized officer for privilege. At one time in the evolution these plans are not site specific up to three consecutive years. With of grazing administration preference documents, and that it is arbitrary for regard to changes in use initiated by the was the amount of use expressed in the Department to use them to make site permittee or lessee, the concept of AUMs that any particular permittee may specific decisions. They advocated that temporary nonuse is expected to have made during the ‘‘priority BLM use actual range condition and continue as the common practice used period’’—the four years following trend data on individual allotments to to respond to fluctuations in the passage of TGA. Preference is still make these decisions. Some weather, the livestock market or other defined as the relative standing of an commenters took the position that the factors beyond the control of the applicant as reflected in historic proposed definition of permitted use operator. records. Through time, common usage was contrary to statute. Suspension of grazing use is initiated of the term evolved to mean the number Permitted use is an end product of the by the authorized officer, and may be of AUMs attached to particular base process of renewal or issuance of agreed to by the permittee or be the properties. But this usage dilutes the permits or leases. The land use plan result of a decision by the authorized original statutory intent of the term as provides guidance for allocation of land officer. It results, for example, from an indication of relative standing. The or forage to various uses on a regional situations requiring a reduction of use of term ‘‘permitted use’’ captures the scale. In the context of grazing, the land the rangeland to protect the resource or concept of total AUMs attached to use plan sets the basic parameters by where there has been noncompliance. particular base properties, and use of which permits and leases are issued or See also the discussions of subparts this term does not cancel preference. renewed. The objectives set in the plan 4110 and 4130. The change is merely a clarification of are refined in the permit or lease, and Regarding active use, BLM intends to terminology. Issues of valuation of permitted use is then expressed in continue allowing changes in active use permits are discussed in more detail in AUMs of active use, including both from year to year, depending on the FEIS, and takings are discussed livestock use and conservation use, as conditions. The authorized officer can under ‘‘Takings’’ in the General well as suspended use and temporary adjust active use and other factors under Comments section of this preamble. nonuse during a particular time period. a permit or lease as long as the changes With regard to owners of water or This process and terminology are fully are within the terms and conditions of water rights, the evolution of the term consistent with TGA, FLPMA and PRIA. the permit or lease. If the authorized preference was similar. The status of The land use plan allows adjustment of officer determines that changes in use waters and water rights that have been the AUM amounts and seasons based on must be made outside the terms and recognized as base property would not monitoring, other studies, or where conditions, it will be done in be affected by the rules adopted today. changes in permitted use or terms and consultation with the permittee or Waters recognized as base property conditions are necessary to meet land lessee, the State and other interested would continue to qualify as such. The use plan objectives. Where changes in parties. preference for receiving a grazing permit the situation are major, it may be Numerous comments were received or lease that is attached to base property necessary to amend the land use plan, on proposed changes to the definition of would not be affected. The Department thus re-initiating the process. In the ‘‘grazing preference,’’ including the believes that permitted use is the more absence of a major change in the overall Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9923 situation and where these objectives are can be used both for billing purposes shared. Some permits or leases are being met, changes in permitted use and to analyze the impact of grazing. issued in the name of one person when through BLM initiative are unlikely. Where its intended use is strictly for in actuality there may be other persons This provides a high level of security, billing, the data may be aggregated for closely involved in the management of stability and predictability from year to the entire allotment area and entire the operation. In the final rule, the year. billing period. Where the data are to be Department has not adopted proposed Few comments were received on the used for analytical purposes, it must be provisions referencing percentage of proposed definitions of actual use or broken out by the treatment area ownership and specific relationships utilization. One comment stated that the (frequently a pasture). such as officers and directors. The term proposed definition had changed the Some commenters submitted ‘‘entity’’ includes partnerships, concept from a record of livestock use comments on the definition of activity corporations, associations, and other to a plan for actual use, and that the plan. Most questioned the relationship such organizations. The Department permittee should be able to make good between the concept and the AMP believes that the definition adopted faith changes to protect rangeland by specified in FLPMA. Some asserted that better addresses the affiliate changing grazing schedules to respond since FLPMA uses the term AMP, there relationships typically associated with to weather forces. Others suggested that is no authority for an activity plan, or livestock grazing operations. the Department was exceeding its that activity plans could not relate to The Department does not intend the authority in applying actual use to the grazing and therefore have no place in term ‘‘affiliate’’ to be applied in an over ‘‘number, kind or class of livestock.’’ grazing regulations. Others suggested broad or burdensome manner but rather Still others suggested that actual use narrowing the concept by applying it in a manner that recognizes ordinary must include all animals which specifically to grazing areas and for the business relationships. Normally, consume forage, not just domestic purpose of achieving grazing objectives affiliates will be partners, agents and animals. Many commenters on the in order to maintain desirable range their principals, family members, and proposed definition of utilization conditions. trusts or corporations involving such recommended that BLM link utilization Activity plans have been included in individuals. It is unlikely that ‘‘affiliate’’ to actual use and include use of forage the definitions and the text of this final would include financial institutions. rule because there are efficiencies to be by horses, burros and wildlife. Numerous comments were received The Department has the authority to gained by considering a variety of uses on the definition of Allotment apply the concept of actual use to simultaneously in one planning Management Plan and consultation, ‘‘number, kind or class of livestock.’’ document. The Department disagrees cooperation and coordination. The Under section 315 of TGA, the Secretary that just because FLPMA uses the term commenters stated that the proposed has the authority to specify ‘‘numbers of AMP, the Department has no authority stock and seasons of use.’’ Additionally, for an activity plan. The Secretary has definition of the latter term is contrary under FLPMA, the Secretary has the ample authorities under FLPMA, TGA, to FLPMA, particularly because they authority to establish terms and and PRIA to undertake any planning believed it eliminates consultation, conditions for grazing leases and activities necessary to implement the cooperation and coordination with the permits. The reporting of actual use is grazing program. lessee or permittee. Other commenters necessary to evaluate the effect of Many comments were received on the stated that the definition did not meet grazing practices, and is a fundamental concept of affiliate. Many commenters standards for local involvement under tenet of the science of range stated that the proposal was vague, Section 8 of PRIA, and did away with management. AUMs are a unit of discriminatory against ranch operators a special and contractual relationship measure of forage consumption and and that it will lead to capricious and between permittees and BLM. allocation. Knowing the number of arbitrary enforcement by BLM. Other The Department intended the change animals involved and the duration of commenters stated that ‘‘control’’ was proposed in this definition to simplify grazing in a specific situation is poorly defined and that the concept references to consultative activities and essential to quantifying the AUMs should be applied to other parties such to make usage consistent throughout the consumed and in setting future numbers as the RAC members. regulations. Throughout these rules, the and seasons. Actual use and utilization Some commenters expressed concern Department has specifically increased— or use patterns, when considered either about the liability provisions. They not decreased—opportunities for with the current year’s weather or over stated that because of potential liability interaction with the permittee, lessee, time, provides a very complete picture resulting from this provision, banks and States, and the interested public. of the impact of grazing use on other businesses will be less likely to do However, because of the confusion rangeland resources. The same business with ranchers who have generated by the language in the information also provides significant grazing permits or leases. Moreover, proposal, the Department has decided to insight into opportunities to alter some asserted that ranchers will be less use the term ‘‘consultation, cooperation, management, to improve livestock responsible if they know that they are and coordination’’ as it is used in distribution, plan range improvements not solely liable for their actions. Other existing rules. or to accurately predict the future commenters asked if permittees must A number of comments were received consequences of continuing the current have control of affiliates and if affiliates’ on the definition of interested public. grazing practices. records of performance would be Comments addressed the effects of Actual use, in the context of this final considered when issuing a permit. broadening the public role in land use rule, refers strictly to domestic livestock The purpose behind the use of the decisions, including the need for BLM grazing. However, the Department term affiliate is to promote to make timely decisions. Some concurs that when it is used to evaluate accountability among all parties comments offered more restrictive the effect of a particular grazing involved in the control of a grazing definitions of ‘‘interested public.’’ Other practice, BLM must consider the use operation. The term is commonly used comments supported the change in made by all grazing animals including in business to identify persons having definition and requested that the wildlife and wild horses and burros legal ties to each other where Department clarify in the rule that where they are present. Actual use data accountability is in some manner members of the public are not any less 9924 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations affected by livestock decisions than are improve rangeland. FLPMA directs that encompasses such relationships. The permittees. ‘‘ * * * such rehabilitation, protection, language is also amended by adding The Department does not agree that and improvements shall include all reference to ‘‘applicant’’ as well as the regulations include excessive public forms of range land betterment ‘‘permittee or lessee.’’ Finally, ‘‘is involvement by expanding including but not limited to, seeding, controlled by, or is under common opportunities for input into grazing and reseeding, fence construction, weed control with,’’ is added after ‘‘controls,’’ management to the interested public. control, water development, and fish to clarify what types of relationships are Anyone with a high level of interest in and wildlife habitat enhancement covered by the provision. shaping objectives, planning courses of *** ’’ All uses authorized by FLPMA, A new definition of annual action, and evaluating results associated including improvements to the health of rangelands is added in response to with management of the public lands the rangeland, will remain valid under commenters’ requests. The term means should have an opportunity for this rule. those areas which are occupied involvement. Congress has The Department received a few primarily by annual plants and which acknowledged this interest and makes comments on the definition of are available for livestock grazing during provisions for it in FLPMA, NEPA, unauthorized leasing and subleasing. some years. This is a technical term FACA and the Administrative Commenters stated that the proposed associated with the rangeland Procedure Act (APA). Experience has subleasing definition limited subleasing, management program, and the shown that the greater and more which is necessary to rural economic Department agrees that a definition will meaningful the participation during the health. The Department believes the provide clarity to the application of formulation of decisions and strategies final provisions relating to unauthorized these provisions. for management, the higher the level of leasing and subleasing do not The definition of conservation use is acceptance and thus the lower the discourage subleasing that may be revised to clarify that it can apply to all likelihood of a protest, an appeal or necessary to sustain rural economic or a portion of an allotment. some other form of contest. health. Indeed, the current definition of The definition of consultation, Nevertheless, it will remain the subleasing implies that no subleasing is cooperation, and coordination is revised responsibility of BLM to make timely allowed. This new definition, by to mean a process for communication decisions. These rules do not change addition of the word ‘‘unauthorized,’’ between BLM and parties involved in existing time frames for public comment clarifies that the Department will particular rangeland management or for protests or appeals. approve subleasing under certain decisions. Some comments were received on the conditions. The Department believes A definition of ephemeral rangeland definition of grazing permit or grazing that it is simply good land management is added to mean areas of the Hot Desert lease. Commenters asserted that the for it to know to whom permittees or Biome (Region) that do not consistently definition failed to make adequate lessees have subleased their grazing produce enough forage to sustain a distinction between Section 3 and privileges, and under what livestock operation but may briefly Section 15 allotments. The distinction circumstances. between Section 3 and Section 15 lands In response to concerns raised by the produce unusual volumes of forage to is made at § 4110.2–1(a). commenters, the Department has accommodate livestock grazing. The Department received a few decided to delete provisions requiring Typically, such areas receive less than comments on the definition of land use the payment of a surcharge on 8 inches of rainfall each year and lie plan. Some commenters wanted the subleasing grazing privileges in below 3,200 feet elevation. This is a definition to require BLM planning conjunction with the lease or sublease technical term associated with the documents to conform to State or local of base property. This is discussed in rangeland management program and the land use plans. Other commenters detail in the section of this preamble Department believes that a definition wanted BLM land use plans to give relating to final § 4130.8 (§ 4130.7–1 in will provide clarity to the application of guidance to the designation of lands for the proposed rule). these provisions. grazing. Land use plans provide The Department also received The definitions of grazing lease and guidance on a regional scale and requests that it define de minimus, grazing permit are revised by the allocate resource uses and objectives. biological diversity, ecosystem, addition of the phrase ‘‘the area FLPMA and the subsequent planning environmentalists, ecosystem authorized for grazing use, or both,’’ to regulations provide sufficient authority management, ecosystem management accommodate situations such as to prevent grazing in areas where framework and viable population. Some ephemeral or annual rangeland in grazing would conflict with other commenters suggested that a definition which the area authorized for grazing is objectives. Local and State governments of grazing association be added. A used in place of AUMs to specify will be considered members of the number of commenters requested a permitted use, because of inconsistent interested public and invited to definition of ‘‘substantial compliance.’’ production of forage. The definition of participate in the development of land The Department believes that these land use plan is revised to clarify that use plans. It is not necessary for Federal terms are adequately defined by the term refers to plans developed under plans to conform to local or State plans common usage. 43 CFR Part 1600. in all cases. FLPMA requires the In accordance with the above The definition of range improvement Department’s planning process to be as discussion, the Department has decided is revised to remove the phrase ‘‘or consistent as possible with local or State to adopt the proposed definitions, with provide habitat for’’ to ‘‘to benefit’’ plans, but not to be in conformance with some changes. livestock. This change was made to them. The definition of affiliate is revised to avoid confusion with the concept of A few comments were received on the eliminate references to percentage of wildlife habitat. definition of range improvement. Some ownership and specific relationships The definition of utilization is revised commenters supported the use of the such as being an officer, director, or to clarify that it refers to a ‘‘portion’’ of range improvement fund to benefit controlling fiscal or real property forage consumed, which reflects actual livestock; others sought to expand use of resources. The Department believes the practices. The proposal used the term the fund to support projects intended to definition adopted adequately ‘‘percentage.’’ Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9925 Section 4100.0–7 Cross-References would have meant not having had any § 4100.0–5 Definitions and § 4130.2 This section would have been State grazing permit or lease within the Permits or leases. There was also considerable concern amended to guide the public to the Federal grazing allotment, or any about the requirement that permit applicable sections of the 43 CFR part Federal grazing permit or lease, applicants have a satisfactory record of 4 when considering an appeal of a cancelled within the previous 36 compliance. In particular, commenters decision relating to grazing months, and not being barred from asked how terms such as ‘‘permit administration, and to 43 CFR part 1780 holding a Federal grazing permit or violations’’ and ‘‘satisfactory record of regarding advisory committees. lease by court order. The proposal further discussed the performance’’ would be defined, who No comments were received on this would make the determination of section and it is adopted as proposed. determination of affiliation. It would have provided that in determining satisfactory performance, and whether Section 4100.0–9 Information affiliation, the authorized officer would the provisions would be applied Collection have considered all appropriate factors consistently across BLM administrative boundaries. One comment suggested The proposed rule would have added including, but not limited to, common that BLM and permittees or lessees this section to conform to the ownership, common management, should agree to how terms will be requirements of the Paperwork identity of interests among family defined and applied prior to the Reduction Act (44 U.S.C. 3501 et seq.). members, and contractual relationships. issuance of a new permit, to enable both The section would have disclosed to the This provision would have ensured that all parties who had the ability to control parties to understand their status. public the estimated burden hours Others asserted there was no statutory needed to comply with the information operations on a permit or lease, not just the immediate permittee or lessee, had basis for this provision. Some had a collection requirements in this proposed concern that evaluating compliance was rule, why the information is being a record of good stewardship of the land. unduly burdensome on the agency. collected, and how the information will One comment stated that the basic Additionally, the proposal would be used by BLM. Several comments principle of having a satisfactory record have clarified that mortgage insurers, were received on this section addressing was reasonable because it was ‘‘little natural resource conservation information resources and questions of different than a private landowner organizations, and private parties whose timeliness relating to compliance. refusing to lease to a troublesome primary source of income is not the The intent of this section is to comply individual.’’ The same commenter was livestock business, could meet the with a statutory requirement to disclose concerned, however, that the provision criteria for qualifications for a grazing how much time will be required for gave authorized officers broad permit or lease. regulated persons to comply with the investigative powers that could result in information collection requirements of Finally, the proposal would have an invasion of privacy. Commenters also these regulations. Which sources of required applicants to submit expressed the opinion that only serious information the Department will use to applications and any other information violations of permits or leases should be obtain local input is not a germane requested by the authorized officer to considered in applying the qualification issue, nor is the time required by determine that all qualifications have provisions to prevent arbitrary adverse commenters to comment on these been met. This provision would have action. regulations. clarified that applicants cannot refuse to Some commenters questioned the In accordance with the above provide BLM with information needed validity of considering the historical discussion, the Department has decided to evaluate applications for permits or record of compliance, asserting that to adopt the provision as proposed. leases. current performance is what is relevant. The Department received a substantial Still others stated that the provision did Section 4110.1 Mandatory number of comments on this section. Qualifications not go far enough in conditioning Major themes expressed in the qualification on past performance. For In the proposed rule, this section comments pertained to the Department’s instance, one commenter stated that any would have provided that applicants for rationale and legal authority for the revoked State or Federal lease or permit new or renewed permits or leases and provisions, opposition to finding should be the basis for denying new or any affiliates must be determined by the applicants to be qualified in cases where renewed permits, asserting this authorized officer to have a satisfactory the applicant was not actively involved indicated the permittee is unable or record of performance. The section in the livestock business, concerns unwilling to be a responsible steward of would have discussed what satisfactory about how various terms would be public lands. Some commenters stated record of performance means for both defined and applied in determining that 36 months was too short a time, and renewals and new permits. For qualification, the perceived potential of advocated a five or six year review renewals, the proposal would have the provision to adversely affect permit period. Additionally, it was suggested provided that it means being in tenure, property values, and financing, that willful, repeat violators, reflected substantial compliance with the rules and BLM’s ability to implement the by multiple revocations of Federal or and regulations issued and the terms provisions as worded. state permits, should be permanently and conditions of the existing permit or Many comments opposed allowing barred from grazing Federal lands. It lease for which renewal is sought. In persons not engaged in the livestock was also suggested that the burden of assessing whether an applicant for business to qualify for grazing permits proof should be on the permittee or renewal is in substantial compliance, and leases. Some commenters asserted lessee. the authorized officer would consider that this provision, in combination with Some commenters expressed the number of prior incidents of provisions for conservation use, would opposition to considering performance noncompliance with the requirements result in non-grazing interests acquiring connected with State leases in of 43 CFR Part 4100. The authorized and retiring grazing permits, would determining qualifications, questioning officer can include in this consideration cause deterioration of the land, and the Department’s authority and the the nature and seriousness of any would be inconsistent with TGA. constitutionality of the provision. One noncompliances. For new permits, it Similar comments were also received on comment said that it would discourage 9926 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations permittees from leasing State lands, and discussed in the General Comments Department expects that a finding of in turn would hurt State income. discussion above. noncompliance will be an exception Several comments specific to Neither conservation use nor rather than a common occurrence. It is qualifications for renewals stated that elimination of the requirement that not feasible to require the authorized the concept of denial for noncompliance applicants must be engaged in the officer to investigate applicants to would decrease a permittee’s security of livestock business is inconsistent with identify unrecorded instances of tenure, in turn leading to less TGA. The TGA gives preference to noncompliance, as suggested by several investment in permits and a decreased landowners engaged in the livestock commenters. The resources required to ability to achieve rangeland objectives. business but does not require it. This conduct such a check would not be Some commenters were concerned that change is made necessary by the worth the results. nonrenewal of a permit would decrease increasing number of part time ranchers, The Department disagrees that the value of the permittee’s or lessee’s permits held by financial institutions looking back at an applicant’s history of private property and improvements, and other non-ranching organizations, performance on Federal or State grazing affected their ability to secure financing, and permits where the livestock leases will violate privacy protections. and not renewing the lease constituted operator is in an initial developmental The information used to evaluate a ‘‘taking,’’ and the provision was stage and is not yet ready to run cattle historical performance will be contrary to TGA. Some asserted that on the range. established records that are available to disqualification on the basis of The concepts of ‘‘permit violations,’’ the public. As stated above, the cancellations of other permits and leases ‘‘satisfactory record of performance’’ Department will use records of should extend to renewals, not just new and ‘‘substantial compliance’’ are performance to confirm the ability of the permits. Others suggested that defined in general terms by the text of applicant to be a steward of the public applicants be disqualified when other this final rule. Application on a case-by- land. Although current performance permits or leases are suspended (in case basis will be done by the may indicate stewardship, it does not addition to cancelled permits and authorized officer, within the provide as complete information as does leases) or when not in compliance with framework established by this final rule, the applicant’s longer-term record of other permits and leases at the time of based upon review of the record. For performance. However, consideration of application. renewals, it will extend only to review the record is not without limitation. The There was also some concern about of the permittee’s record on the permit Department chose the 36-month cut off the ability of BLM personnel to or lease for which renewal is sought. On of consideration of applicant and determine affiliation. One commenter new permits, it will include a review of affiliate performance as a fair yet asked whether he would be responsible State and Federal leases within the prior sufficiently rigorous measure of for the actions of someone he sold his 36 months, and of any existing judicial potential stewardship. The 36-month ranch to. An Indian tribe that holds bar on holding a permit. References to look-back applies only to applications permits and subsequently leases the permits cancelled for violations are used for new permits or leases. permits to individual tribal members to distinguish such cancellations from In regards to the comment that willful expressed concern that the tribe would administrative cancellations such as and repeated violations should result in be judged by the behavior of the those that might occur when the land is a permanent debarment, the Department individual permittees under the concept to be devoted to another public purpose. has chosen to reject the of affiliation. Basing qualifications on whether past recommendation as excessively harsh. The statutory basis for these permits and leases have been cancelled Due to the severity of such a penalty it regulations is found in FLPMA and for violation is intended to focus is best left to the judicial system. TGA. FLPMA (43 U.S.C. 1740) attention on those types of violations In essence, where there is a record of authorizes the Secretary to promulgate that justified decisive and substantial prior noncompliance, the burden of rules and regulations necessary to corrective action. As with all decisions proof is on the permittee. The record of implement the requirements of the Act. under 43 CFR part 4100, denial of compliance will be determined based Regarding requirements for first priority permit and lease applications under upon a review of the public record. If for renewal, 43 U.S.C. 1752 requires these provisions is subject to appeal there are any extenuating circumstances among other things that applicants must under subpart 4160. to be considered, it will be the be found to be in compliance with the Consistency in application of the responsibility of the permittee to terms and conditions of the permit and qualification requirements is of concern support them. pertinent rules and regulations. The to the Department. These regulations An applicant’s record on State amendments pertaining to the will assist in achieving standardization, permits is relevant to consideration of disqualification of applicants are as will periodic information bulletins, the applicant’s compliance record for intended to reflect the requirements of instruction memoranda, technical purposes of obtaining new permits. If an TGA and FLPMA that public lands be guides, handbooks and training. The applicant has violated the terms and managed in a way that protects them comment suggesting that permittees and conditions of a State lease to such an from destruction or unnecessary injury BLM seek a mutual understanding of extent that the lease was cancelled, it is and provides for orderly use, these provisions at the time of permit reasonable to assume that person is improvement, and development of issuance is the type of guidance that more likely to violate the terms or resources. The Department believes that may be provided. An appeal process is conditions of a Federal lease than is a the provisions of this section of the rule available under subpart 4160 when the person with a good record of are critical to BLM’s ability to ensure permittee or lessee believes the compliance on State leases or permits. that permittees and lessees are good regulations have been inappropriately This is particularly true since stewards of the land. The provisions interpreted in a specific circumstance. consideration of State leases is limited will benefit good stewards by ensuring Determining compliance with the to the allotment for which a new tenure in the renewal of permits and terms and conditions and rules and Federal permit or lease is sought. The leases and by giving them an advantage regulations at the time of permit Department disagrees that these in the issuance of new permits and renewal stems from a statutory provisions will discourage leasing of leases. Comments on ‘‘takings’’ are provision (43 U.S.C. 1752(c)). The State lands. Only those few persons who Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9927 commit violations that result in the In accordance with the above The Department received comments cancellation of their State permits will discussion, the Department has decided on this section ranging from those who be affected. to adopt the rule as proposed, with the questioned the justification for The requirement of applicants for text subdivided and redesignated and implementing the concept that base renewal to be found to be in compliance headings added for clarity. property be capable of supporting with terms and conditions and the Additionally, the word ‘‘relevant’’ is livestock use to those who questioned pertinent rules and regulations on the added to paragraph (d) to modify how the Department would determine permit or lease for which renewal is ‘‘information’’ to clarify that the what was capable of supporting sought is not new; it stems directly from authorized officer is authorized to livestock and what was not. Others FLPMA (43 U.S.C. 1752(c)). While request information from the applicant questioned whether base property must disqualification from obtaining a new that is relevant to the application be contiguous. permit or lease or a renewal of a permit process, not just any type of The Department has introduced the or lease under this provision may in information. concept of ‘‘capability’’ of base property some instances affect financing or other to support livestock in order to a) Section 4110.1–1 Acquired Lands aspects of ranch economics, the recognize that not all private land principal objective of these provisions— The proposed rule would have holdings are of sufficient size and encouraging and recognizing revised this section to clarify that BLM character to support a livestock stewardship—is consistent with the will apply the terms and conditions of operation, and b) provide for situations long-term stability and economic existing grazing permits on leases on where persons or organizations other viability of a ranch operation. newly acquired lands in effect at the than traditional livestock operators, The Department does not agree that time of acquisition of the lands. This such as insurers, financial suspensions, in addition to change was proposed to make clear that organizations, or conservation cancellations, should serve as a basis for terms and conditions of permits and organizations, acquire a ranch but may disqualifications. Suspensions may be leases in effect at the time land is not at the moment be in the livestock imposed for a wide range of problems. acquired will be honored subject to the business at that location. The While some may be serious enough to provisions of the transfer of ownership Department believes this is in the public warrant denial of additional permits, (statute, title, etc.). Mandatory interest. As long as the base property is others may not be. If a person continues qualifications will not apply to such capable of supporting a livestock to perform so poorly that BLM suspends permits or leases until the expiration of operation, the property should be one or more permits, the authorized their current term. eligible to be considered a base of livestock operations. The provision is officer has the discretion to take the The Department received very few not intended to remove the requirement next step, cancellation. In that case, the comments on this section. Some for permit applicants to have base person would become ineligible for a expressed concern that this provision property, nor is the provision intended new permit for the next 36 months. would mean that lands grazed at the to circumvent BLM’s authority to decide In regards to difficulties in time of acquisition might later be turned whether public lands should or should to conservation use. determining affiliation, the Department not be grazed. does not intend that such a It is true that, under this provision, The Department does not believe it is determination will require an in-depth lands which were grazed at the time of necessary for the base property to be investigation. Rather, the authorized acquisition could, with the expiration of supporting a livestock operation at officer will rely on readily available the permit, be turned to conservation present to be eligible to be considered information and material provided by use. However, the commenters should base property. The proposal would the permittee or lessee through the keep in mind that conservation use will allow for the acquisition or retention of normal permit or lease application be issued only at the request of the a grazing permit or lease during periods process. permittee, and will be required to be when cattle are not actually being Once an individual has sold his ranch consistent with applicable land use grazed, as long as it were possible to and a permit has been transferred, the plans. Additional information on conduct grazing operations. For original owner will not be considered conservation use can be found in this example, an operation could be in a responsible for it. The concept of preamble in the discussion of § 4130.2. start-up phase, planned to last for affiliate is intended to take into account The Department has decided to adopt several years, prior to actually placing those persons who actually have the this provision as proposed. cattle on the land. While some ability to control the manner by which Section 4110.2–1 Base Property permittees may not intend to initiate a a grazing operation is conducted. The grazing operation, under the proposal Department does not believe this Under the proposed rule, this section any extended conservation use would extends to buyer-seller relationships would have been amended by clarifying be allowed by BLM only if in unless as a result of the transaction the that base property is required to be conformance with approved land use seller retains some interest in the capable of serving as a base for livestock plans or other activity plans and operation, such that it meets the operations but it need not be used for standards and guidelines. definition of ‘‘affiliate.’’ livestock production at the time the The Department disagrees that The concern of the tribal government authorized officer finds it to be base contiguous property should is well founded. If the tribe receives property. automatically be considered capable, or permits and in turn leases them to A provision would have been added that only contiguous properties should individual tribal members, the to clarify that the permittee’s or lessee’s be considered capable of serving as a Department assumes that the tribe’s interest in a base water previously base. In some cases, there is more than relationship to the tribal members meets recognized as base property would still one contiguous property, and a decision the definition of control. Through the qualify as base property following must be made as to which would serve terms of the leases, if by no other means, authorized reconstruction or best as base property. Also, some the tribe can exercise control over its replacement required to continue to contiguous properties may not actually members. service the same area. be capable of supporting grazing 9928 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations operations, due to their size or The Department has decided to adopt years. In particular, the redefinition character. For example, some may have the proposed provision, with several eliminates the shorthand jargon of been so sub-divided that they could no clarifying changes to reflect the initial ‘‘preference AUMs’’ that has developed longer support such operations. Finally, intent of the proposed rule. Reference to to refer to the number of AUMs statutory provisions in TGA clearly authorizing use ‘‘where livestock use is included in a permit or lease offered to allow non-contiguous property to be authorized based upon forage a holder of grazing preference. considered base. availability’’ is moved to modify In response to commenters’ Under the final rule adopted today, ‘‘ephemeral rangeland.’’ This clarifies suggestions, definitions of annual and property merely has to be capable of that it is ephemeral rangelands where ephemeral rangelands are added to this supporting an operation. Property use must be determined based on actual final rule. They can be found in currently serving as base property forage availability. The word § 4100.0–5. Regarding permitted use for would in all likelihood be found to be ‘‘authorized’’ is replaced by ‘‘permitted’’ annual rangelands, the Department has capable of serving as a base of livestock in the third sentence for consistency made some minor wording changes in operations. with other provisions in this final rule, this final rule for clarity. The Department intends the provision including the first sentence of this The provisions pertaining to regarding water to recognize that in paragraph. The phrase ‘‘activity plan, or ephemeral ranges address designated some cases base waters need to be decision of the authorized officer’’ is ephemeral ranges—specific areas that redeveloped, and the holders of those added after ‘‘land use plan’’ to clarify have been recognized through BLM’s base waters should not lose base that such plans or decisions may be the provisions for ephemeral grazing. There property status just because they had to basis for determining permitted use. are some smaller areas scattered redevelop the water. Finally, the word ‘‘occasional’’ is throughout the desert southwest and For the reasons discussed above, the deleted in two places. While ephemeral Great Basin that produce amounts of Department has decided to finalize the rangelands are used only occasionally, forage sufficient for livestock grazing provision as proposed, with one minor due to lack of forage availability under only occasionally and that are included change. The words ‘‘would utilize’’ is normal conditions, annual rangelands in perennially-grazed allotments. These substituted for ‘‘utilizes’’ for consistency are generally available for grazing. Since generally isolated areas can be with the concept that base property this provision refers to both types of recognized at the time livestock carrying rangelands it is inaccurate to use the need only be capable of supporting a capacity is determined and can receive term ‘‘occasional’’ to refer to forage grazing operation; no operation need be further protection through the standards availability. and guidelines that will be developed as in existence at the time the property is The Department has considered the a result of this final rule. determined to be suitable as base suggested wording changes and has property. determined that the proposed language Section 4110.2–3 Transfer of Grazing Section 4110.2–2 Specifying Permitted best represents the intent of this section, Preference with the exceptions noted. The new Use In the proposal, this section would definition of the term ‘‘preference’’ is In the proposed rule, this section considered at § 4100.0–5. have been amended to reflect the new would have been renamed ‘‘Specifying The final rule does eliminate the requirements of § 4110.1 that applicants permitted use’’ replacing the existing concept of ‘‘preference AUMs’’ and for new or renewed permits or leases title ‘‘Specifying grazing preference.’’ It replaces this term with the term and any affiliates must be determined would also have been amended by ‘‘permitted use.’’ Permitted use is not by the authorized officer to have a replacing the term ‘‘grazing preference’’ subject to yearly change. Permitted use satisfactory record of performance. It with ‘‘permitted use’’ because the latter will be established through the land use would also have been amended by the is more appropriate terminology to planning process, a process which addition of a new paragraph (f) describe and quantify the number of requires data collection and detailed requiring that new permits or leases AUMs of forage being allocated in a analysis, the completion of appropriate stemming from the transfer of base permit or lease. Also, the section would NEPA documentation, and multiple property be for a minimum period of have been amended to clarify that levels opportunities for public input. three years. The Department proposed of grazing use on ephemeral or annual Establishing permitted use through this this provision to enhance the protection ranges are established on the basis of the planning process will increase, not and improvement of rangelands and to amount of forage that is temporarily decrease, the stability of grazing reduce the administrative work of available pursuant to vegetation operations. The rule clearly defines processing transfers. The section would standards prescribed by land use plans preference to be a superior or priority also have been amended by the or activity plans. position for the purpose of receiving a substitution of the term ‘‘permitted use’’ The Department received a number of grazing permit or lease. Therefore, the for the term ‘‘grazing preference’’ where comments concerning the proposal to Department does not anticipate there the reference pertains to an amount of substitute ‘‘permitted use’’ for ‘‘grazing will be a decrease of financial stability livestock forage. This change is preference’’ and the corresponding for grazing operations. discussed at § 4110.2–2. change in policy in the concept of There is no need to eliminate the Most of the comments submitted on preference being limited to a priority concept of ‘‘grazing preference’’ totally. this proposed section addressed the 3- position for the purpose of obtaining a The concept of assigning first priority to year limitation on transfers, which some grazing permit or lease. Comments certain persons is well-established in viewed as arbitrary and without rational ranged from those who felt the TGA and is an appropriate way to basis. Others read the proposal to mean amendment was a good idea to those contribute to the stability of dependent that three years was an upper limit on who believed the change would lead to livestock operations and the western transfers, and suggested that a 10-year financial insecurity for grazing livestock industry. The redefinition of term was needed to provide stability to operations. Others asked for definitions preference is intended to resolve the the ranching operation, and to assist in of the terms ‘‘annual rangelands’’ and confusion and misinterpretation of the obtaining operating capital from ‘‘ephemeral rangelands.’’ concept that has developed over the lenders. Others questioned the accuracy Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9929 of the cross-reference in the proposed Section 4110.2–4 Allotments expense associated with boundary language. In the proposed rule, this section changes. The Department disagrees that the 3- would have been expanded to clarify As noted above in the discussion of year minimum for transfers stemming that the authorized officer’s existing § 4100.0–5, because of the confusion from base property leases is arbitrary authority to designate and adjust caused by the proposed deletion of and without rational basis. This allotment boundaries included the ‘‘cooperation and coordination’’ the minimum is intended to reduce authority to combine or divide Department has decided to use the full administrative burden and to promote allotments when necessary for efficient phrase ‘‘consultation, cooperation and good stewardship of the land. The TGA management of public rangelands. The coordination’’ in cases where broad requires the Department to ensure proposal also would have specified that based input in agency deliberations are ‘‘orderly use, improvement, and modification of allotments must be done encouraged. development of the range.’’ Rapid through agreement or decision of the The Department believes that turnover of permit and lease holders is authorized officer. These two changes inclusion of the interested public is not consistent with this requirement. were intended to provide administrative important because the public is a Persons who hold preference on an clarity to the process. The proposal also stakeholder in the administration of the allotment but who sublease their public would have added a requirement public lands. Additionally, decisions land grazing privileges to short term expanding consultation to the State regarding designation and adjustment of occupants rather than using the having lands or responsible for allotment boundaries are subject to allotment for grazing cattle are not managing resources in the area, and the NEPA, and the public must be involved making productive use of the land nor interested public, as well as the affected in decisions subject to the NEPA promoting the stability of the livestock grazing permittees or lessees. Finally, process, because of the requirements of industry. consistent with the change in definition that statute. Currently, BLM notifies all The Department does not envision of consultation, cooperation, and affected interests of actions such as that the 3-year minimum for transfers coordination discussed in § 4100.0–5, allotment boundary changes. The will impact the normal transactions in the proposal would have eliminated the Department does not expect there will the livestock business. It will not words ‘‘cooperation and coordination.’’ be significant changes in current BLM interfere with the sale of private lands The final rule adopts the language of procedures to accommodate the or with the subsequent transfer of the the proposed rule except that the requirements for consultation with the permit or lease to the new owner. The terminology ‘‘consultation, cooperation, interested public, beyond including any provision does not encumber private and coordination’’ is included in the interested persons in such routine lands—it only affects the privileges final rule. notifications. Thus, the Department associated with a grazing permit or Most of the comments on this does not anticipate any increased lease. The effects of the 3-year limit on proposed section addressed two issues: uncertainty or decreased incentive to transfers on a public lands rancher’s deletion of the terms ‘‘coordination and maintain improvements. While RACs equity has been addressed in detail in cooperation’’ and inclusion of States might be consulted in certain cases, the FEIS. The final rule provides for and, particularly, the interested public such as a controversial adjustment or transfers of less than three years in in the consultation process. Deletion of where significant funding is required, specified circumstances, for example the terms ‘‘coordination and the Department does not believe it is where base property changes cooperation’’ was viewed by some feasible to involve RACs in every ownership. Transfers are allowed for up commenters as a violation of the intent routine action. to 10 years. Three years is a lower limit. of Section 8 of PRIA which would The Department envisions that most Regarding qualifications for a permit, prevent affected interests from adjustments in allotment boundaries transferees should be expected to meet exercising their right to consult, would have little effect on ranch units. the same qualification criteria as other cooperate, and coordinate. Typically, such adjustments are to public land permittees or lessees. Upon Some commenters objected to the realign boundaries to be consistent with the completion of a transfer the inclusion of the interested public in the actual use of the allotment. For instance, transferee will become the permit or consultation process on changing an allotment boundary may be adjusted lease holder. Given that some short-term allotment boundaries because they to allow an adjacent ranch to make use transferees may be less motivated to believed that it would interfere with of public lands that because of natural manage for the long-term health of the currently established boundaries, create physical barriers are not readily rangelands, ensuring that transferees uncertainty for operators, and decrease available to the current permittee. have a history of compliance is of great the incentive to maintain Adjustments in allotment boundaries importance. improvements. Other comments will in no way affect the ownership of The cross reference is intended to suggested that consultation on allotment private lands. ensure that transferees meet the boundary changes should be with the The Department does not believe that mandatory qualifications and own or RAC, not the interested public. this provision would involve any control base property. While the Few comments were addressed ‘‘takings’’ issues. Permits and leases to language in the proposal, referring to specifically to the provision allowing graze public lands within grazing general § 4110.2 is not incorrect, more the authorized officer to combine or allotments do not constitute property specific references to the provisions divide allotments. Commenters asked rights. Adjustments in allotment which the transferee must meet, those in how deeded lands within allotment boundaries that result in a transfer of §§ 4110.2–1 and 2–2, may be more boundaries would be handled, and grazing preference will be subject to the useful. The final language is modified stated that adjusting allotment provisions of § 4120.3–5 pertaining to accordingly. boundaries was a taking of private the assignment of range improvements The Department has decided to adopt property. Others asked who would bear and corresponding compensation for a final version of the proposed rule with any expenses associated with boundary such improvements. Takings issues are only one minor change, which reflects changes. Still others raised takings addressed further in the General the new cross reference. issues, and asked who would bear the Comments discussion in this preamble. 9930 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Decisions on who should bear the monitoring data. Other valid sources of consultation. Also, reference to a expense of constructing fences made information include direct observation, permittee’s or lessee’s demonstrated necessary by adjustments in allotment ecological site inventory and trend data. stewardship would have been added to boundaries will be made on a case-by- There is no sound scientific reason to factors to be considered in allocating case basis. Depending on the limit the authorized officer’s flexibility available forage. circumstances, BLM, the grazing by restricting him or her to one source The final rule adopts the text of the permittee or lessee, or others may bear of information or to place specific proposed rule, except that the final rule the costs. For instance, an adjustment to timeframes for monitoring in the requires that ‘‘consultation, cooperation, an allotment boundary made at the regulations. and coordination’’ take place prior to request or for the benefit of a permittee Changes in permitted use are subject the apportionment of additional forage may be made subject to the permittee’s to consultation with permittees, States under paragraph (c). acceptance of fencing costs. Where a having lands or managing resources in The largest group of comments on this fence is to be constructed to enhance the the area, and interested publics. section asserted that the interested establishment or re-establishment of, for Furthermore, permittees and lessees can public should not be involved in BLM’s example, bighorn sheep, BLM or State appeal final decisions regarding changes decisions to increase forage temporarily. wildlife management agency may in permitted use (See §§ 4110.3–1 and Others expressed concern about assume the costs. 4110.3–2 and subpart 4160). Given these involvement of State agencies or that In accordance with the above constraints, the Department does not increases should be subject to local discussion, the Department has decided agree that the authorized officer has too government land use plans. Other to adopt the provision as proposed, with much latitude. commenters stated that considering one change. The terms ‘‘cooperation and The Department agrees that other demonstrated performance and coordination’’ are included in the resource uses should be evaluated in compliance made decisions to increase opening sentence. calculating permitted use. At the permitted use uncertain. Others stated present time, wildlife and wild horse that increases should be processed using Section 4110.3 Changes in Permitted and burro utilization levels are used in the established consultation, Use the calculations of permitted use within coordination and cooperation This section would have been an allotment. procedures including Section 8 amended by replacing the term ‘‘grazing In accordance with the above consultation. preference’’ with ‘‘permitted use.’’ This discussion, the Department has decided The Department believes that it is change is discussed at § 4110.2–2. The to adopt the rule as proposed, with the appropriate to involve the public in the section would also have clarified that following minor changes. The phrase management of the public rangelands. changes in permitted use must be ‘‘assist in’’ is added before the words Similarly, State and local governments supported by monitoring, field ‘‘restoring ecosystems to properly will be given an opportunity to observations, ecological site inventory, functioning condition.’’ These words comment on such decisions. This is or other data acceptable to the have been added to emphasize that the consistent with Section (202)(f) of authorized officer. This change would Department does not expect that FLPMA. Thus, any decisions to increase have broadened the sources of rangeland health will be restored as a or decrease permitted use or forage information that could be relied upon result of single grazing management within a grazing allotment will include by BLM as a basis for changing decisions, such as changes in permitted not only the permittee but also the permitted use. use on one permit. Rather, restoration of interested public and the State having The Department received a number of rangeland health will result from a lands or managing resources in the area. comments on this section. The majority series of decisions and actions over However, the BLM authorized officer of the comments dealt with the time, including actions pertaining to will retain the authority and information that BLM would use to uses other than grazing, all of which responsibility to make final decisions on establish permitted use. Other will work together to establish increased permit usage. commenters added that BLM should significant improvements in the Additional forage available for consider the vegetation impacts that condition of the rangelands. livestock grazing on a sustained yield come from other resource uses in Further, the phrase ‘‘to conform with basis is first apportioned to permittees calculating permitted use. Some land use plans or activity plans’’ is or lessees in proportion to their commenters stated that no grazing added as one objective of changes in stewardship efforts which resulted in should be permitted until an accepted permitted use to clarify that, under 43 increased forage production. Any monitoring plan is carried out or that CFR Part 1600 and provisions in subpart additional forage (AUMs) following this permitted use in riparian areas should 4120 of this final rule, BLM is required apportioning could be available to other be evaluated every three years and to conform with decisions made in the permittees/lessees or outside interested adjusted as needed. land use plans or other activity plans. applicants, assuming they are qualified The Department agrees that Where grazing use does not conform under § 4110. professionally accepted and scientific with such plans it must be modified. Record of performance and information is needed to justify changes compliance are criteria for adjudicating in permitted use. Many factors affect the Section 4110.3–1 Increasing Permitted conflicting applications, not for type of information needed, the Use allocating additional forage, unless the appropriate level of detail, and the time The proposed rule would have grazing allotment is a community span over which such information revised this section by requiring that a grazing allotment involving several should be acquired—resource permittee, lessee or other applicant be different permittees/lessees. Any final conditions, resource values, climate, determined to be qualified under decision by the agency can be appealed local environmental conditions, etc. The subpart 4110, in order to be apportioned under the procedures set forth in BLM can obtain information from a additional forage under subsection (c), subpart 4160. number of sources in evaluating the by substituting the term ‘‘permitted use’’ The Department agrees that increases need to change permitted use, in in place of ‘‘grazing preference,’’ and by should be done with consultation, addition to the traditional source, clarifying the requirements for coordination, and cooperation, and the Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9931 final rule makes this change. For further This regulation is not inconsistent use,’’ to make this provision more discussion, see § 4110.0–5. Otherwise, with statutory requirements. A consistent with the definitions included the provision is adopted as proposed. discussion pertaining to legal in this final rule. authorities and requirements is Section 4110.3–2 Decreasing Permitted Section 4110.3–3 Implementing presented under ‘‘General Comments.’’ Use The BLM authorized officer will make Reductions in Permitted Use The proposed rule would have a determination on a case-by-case basis The proposed rule would have amended this section by revising the as to what corrective actions are renamed the section and removed heading to change the term ‘‘active use’’ appropriate. In some cases the existing paragraph (a) and other to ‘‘permitted use.’’ This change would corrective action may not result in a requirements for phased-in reductions have been consistent with the proposed reduction in permitted AUMs. For in grazing use. This proposal was definitions of these two terms, as instance, a change in use periods or a intended to provide the authorized discussed at § 4100.0–5. Paragraph (b) temporary suspension in use may be officer more flexibility to deal with also would have been amended to determined to be the appropriate action. situations in which immediate action provide that when monitoring and field In other instances, data may show that was necessary to protect rangeland observations show grazing use or other uses of the public lands need to resources; phase-in periods for patterns of grazing use are not be modified. The Department believes reduction in grazing use could still have consistent with the fundamentals of that it would be inconsistent with its been available if determined by the rangeland health (titled ‘‘national mandate to manage the public authorized officer to be appropriate. requirements’’ in the proposed rule) or rangelands to allow an allotment to The proposal would also have standards and guidelines or are continue to deteriorate while prolonged redesignated existing paragraph (b) as otherwise causing an unacceptable level monitoring studies are conducted in paragraph (a) and amended it by or pattern of utilization, the authorized those instances where other reliable removing the requirements to phase-in reductions in use over a five year officer must reduce permitted grazing measures of rangeland health indicate a period. The proposal also would have use or otherwise modify management need for action. removed the terms ‘‘consultation, practices. Paragraph (b) would also have BLM uses a variety of accepted coordination and cooperation,’’ and added ecological site inventory and methodologies and available data to ‘‘suspension of preference’’ and added other acceptable methodologies to determine carrying capacities of grazing in their place the terms ‘‘consultation’’ monitoring as ways of estimating allotments and to identify unacceptable and ‘‘reductions in grazing use,’’ rangeland carrying capacity as the basis levels or patterns of use. Typically, respectively. These changes would have for making adjustments in grazing use. findings of one form of data collection been consistent with changes in Subsequent adjustments could be made are corroborated with other data before definitions discussed at § 4100.0–5. It as additional data were collected and making reductions in livestock use. The BLM Technical Reference 4400–5 would also have provided, by reference analyzed. (Rangeland Inventory and Monitoring to § 4110.3–2, for the application of the Paragraph (c) would have been Supplemental Studies) describes fundamentals of rangeland health and deleted to remove the provision acceptable methodologies for estimating standards and guidelines and the use of requiring the authorized officer to hold forage production. Additionally, BLM other methods, in addition to those AUMs comprising the decreased intends to develop rapid assessment monitoring, for determining the need for permitted use in suspension or in techniques that can be used to evaluate an initial reduction. nonuse for conservation purposes. rangeland health as represented by Existing paragraph (c) would have Existing paragraph (a) of this section, established standards and the guidelines been redesignated as paragraph (b) and which was not proposed to be changed, to be followed in meeting standards and amended to remove the word would continue to provide for the the fundamentals of rangeland health. ‘‘temporary’’ because that term implies temporary suspension of active use due (See subpart 4180.) that protection would be needed for to drought, fire, or other natural causes, Although in some cases reductions only one season. In actuality, the or to installation, maintenance, or made under this section of the rule may influences of natural events such as modification of a range improvement. be carried in temporary suspension, the drought could significantly affect Some commenters stated that the Department does not believe that it vegetation health and productivity for proposed language is inconsistent with serves the best interests of either the several months or years after a drought legal requirements. Some commenters rangeland or the operator to continue to has passed. Other minor amendments stated that the term ‘‘corrective action’’ carry suspended numbers on a permit, would have clarified action to be taken is ‘‘vague and subjective.’’ unless there is a realistic expectation by the field manager and made the Numerous commenters stated that it that the AUMs can be returned to active language concerning provisions for is necessary for the authorized officer to livestock use in the foreseeable future. making decisions effective when determine the cause of range problems Should additional forage become necessary to protect the resource before decreasing permitted use and available there are provisions at consistent with language on that questioned whether methods other than § 4110.3–1 to address increases in provision in proposed subpart 4160. monitoring would be suitable for permitted use. Decisions resulting in a Language would have been added determining carrying capacities. Some decrease in permitted grazing use are specifying that such decisions would of these comments suggested correcting subject to the administrative remedies have remained in effect pending any other uses, such as wild horses and outlined in subpart 4160, including a appeal of the decision, unless a stay wildlife, before permitted use is right of appeal. were granted by the OHA. The overall reduced. Some commenters expressed In accordance with the above intent of the changes in this paragraph concerns on the monitoring and discussion, the Department has decided was to provide the authorized officer inventory methodologies BLM would to adopt the provision as proposed, with with the authority needed to implement use. Others stated that reductions one minor change. The term decisions to close allotments or portions should be placed in suspended use ‘‘authorized grazing use’’ in paragraph of allotments or modify authorized rather than eliminated. (b) is changed to ‘‘permitted grazing grazing use when immediate action was 9932 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations necessary to protect rangeland ecological site inventory or other livestock grazing. Compensation is not resources. acceptable data. The final rule at required for the reduction or loss of A number of commenters stated that 4110.3–2(b) covers adequate monitoring available livestock forage due to a the phase-in of reductions should not be and documentation necessary to change of use, which would include eliminated because it promotes industry implement reductions. The Department cases of use being reduced to protect the stability and gives livestock operators a believes that the language in the rule rangelands. This provision is not being chance to adjust their operation. Others expanding the sources of information changed. suggested that the authorized officer that the authorized officer can use to The final rule has removed ‘‘suspend’’ should restrict access for a temporary implement such changes is desirable to and ‘‘suspension’’ because it does not period of time rather than making provide flexibility to the process and to serve the best interests of either the reductions in ‘‘emergency’’ situations. ensure that the authorized officer can rangeland or the operator to continue to Commenters also objected to removal of take immediate action to protect the carry suspended numbers on a permit the terms ‘‘coordination and resource, including making decisions unless there is a realistic expectation cooperation’’ in redesignated paragraph effective immediately or on a specific that the AUMs can be increased due to (a) as being a violation of PRIA. Others date, when conditions require it. increased forage availability. If such objected to involvement of the While in some specific circumstances numbers are carried, the permittee or interested public. a RAC may be involved in a decision to lessee may have an unrealistic Numerous commenters raised reduce permitted use, the Department expectation for increases in AUMs in concerns over the lack of documentation does not believe it is feasible to consult the future. In cases where the acreage is required to implement reductions in the councils for every grazing being reduced, it is not likely that such grazing use, and stated that prolonged management decision. an increase will occur. Therefore, there monitoring should be required. Others In accordance with the above appears to be no good reason to refer to stated that ‘‘full force and effect’’ discussion, the Department has decided suspended AUMs in the regulation provisions should not apply to to adopt the provision as proposed, with covering decreases in land acreage. If reductions and that the RACs should be the following changes. The term rangeland conditions improve to the consulted prior to reductions and ‘‘cooperation and coordination’’ is extent that increased usage is possible, emergency closures. added back into paragraph (a). In the provisions of § 4110.3 can be used The Department will implement any paragraph (b), the phrase ‘‘when to increase permitted use accordingly. increase or decrease as outlined in the continued grazing use poses a All decisions pertaining to a grazing final rule by documented agreement or significant risk of resource damage from permit or lease will involve consultation by decision of the authorized officer. these factors’’ is amended to read ‘‘when with the affected permittee and affected These documents may include a continued grazing use poses an interests. All final decisions of the provision for a phase-in period. imminent likelihood of significant authorized officer will be subject to the However, in some situations, immediate resource damage.’’ This clarifies that administrative remedies discussed in action is needed to protect rangeland modifications in grazing use and notices subpart 4160, including the right of resources, including wildlife and of closure can be implemented where appeal. riparian areas, because of conditions continued grazing use poses an In accordance with the above such as drought, fire, flood, insect imminent likelihood of significant discussion, the Department has decided infestation or other conditions that resource damage. Such decisions may to adopt the provision as proposed. present an imminent likelihood of be placed into effect upon issuance or significant resource damage. The on a specified date and will remain in Section 4120.2 Allotment Management Department has concluded that in these effect during any appeal unless a stay is Plans and Resource Activity Plans situations immediate corrective action is granted. The proposed rule would have warranted, without the constraints of a amended this section by revising the phase-in period. Of course, even where Section 4110.4–2 Decrease in Land heading and by adding reference to a decision is implemented immediately, Acreage other activity plans that may prescribe an adversely affected party would retain The proposed rule would have grazing management. This provision the ability to petition the OHA for a stay amended paragraph (a) by removing the was intended to reflect BLM’s belief that of the decision. words ‘‘suspend’’ and ‘‘suspension’’ and activity plans that provide direction for The Department disagrees that the by changing the term ‘‘grazing the major resources and uses of a provisions of this section are preference’’ to ‘‘permitted use’’ particular area are more effective inconsistent with any statutory consistent with other changes management tools, and are more requirements. These issues are covered throughout the proposal. As a result, consistent with an ecosystem approach, more fully above in the General decreases in public land acreage than are single source planning Comments section of the preamble. The available for grazing would no longer documents. words ‘‘cooperation and coordination’’ have associated forage allocations The proposed rule would have have been added to paragraph (a). As carried on a permit or lease as clarified that draft AMPs, or other draft noted at § 4100.0–5, the Department has suspended use. activity plans, could be developed by decided to use the phrase ‘‘consultation, The major concerns commenters other agencies, permittees or lessees, or cooperation, and coordination’’ in cases raised with respect to this section interested citizens. This provision was where broad based input into agency involved compensation for lost range intended to broaden the base of deliberations is sought. The Department improvements and AUMs and the participation in the planning process, believes that such input is critical to elimination of the terms ‘‘suspend’’ and and to provide interested parties, effective management of public ‘‘suspension.’’ The existing regulation including interested citizens, an rangeland. provides for compensation to the opportunity to facilitate the planning The authorized officer will make permittee for his or her contribution in process through such participation. decisions about implementing the permanent range improvements Another proposed provision would reductions in permitted use based on developed within areas that are being have clarified that AMPs or other monitoring, field observations, devoted to a public use that precludes activity plans, including those prepared Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9933 by other parties, would not have become streamline administrative processes by retains this provision. The concept of effective until approved by the allowing BLM to combine NEPA more integrated resource activity plans authorized officer. This provision is analysis with the activity plan process. better meets the statutory requirements consistent with authority granted to the Additionally, the provision assists the of FLPMA and NEPA, provides a more Secretary by 43 U.S.C. 1752. grazing permittees and lessees by efficient way to plan for the Paragraph (a) would have been clarifying that decisions regarding management of a specified area, and amended by replacing the reference to AMPs can be appealed through the allows more complete analysis of public district grazing advisory boards with standard appeals process specified in comment and cumulative effects. RACs and including State resource subpart 4160. Activity plans that serve as the management agencies in the activity The Department received a number of functional equivalent of AMPs will meet planning process. This change would comments on this section. Most frequent the FLPMA definition of AMPs (43 have been made for conformance with comments reflected perceptions that the U.S.C. 1702(k) and 1752(d)) by the proposals on subpart 1780, and with proposed rule would eliminate the addressing the specific conditions of the Department’s intent to broaden the requirement that BLM ‘‘consult, rangelands within the grazing base of participation in the grazing coordinate and cooperate’’ with the allotments covered by such plans. management process. permittee. Many stated that to allow The Department does not intend that Another amendment would have participation by the interested public standards and guidelines will changed the existing provision would severely delay the process. automatically be incorporated into plans regarding the flexibility granted to Others said some provisions, such as upon the effective date of this rule. permittees or lessees under an AMP to using resource activity plans to serve as Rather, standards and guidelines will be specify that it would be determined on the functional equivalents of AMPs, are incorporated into individual plans as the basis of demonstrated stewardship. outside the Secretary’s jurisdiction. the need for modification of the plans is The requirement for earning flexibility Some respondents raised questions such identified. Subpart 4180 directs the was intended as an incentive for grazing as whether development of the AMP authorized officer to take action no later operators to manage for the was discretionary, and whether than the start of the next grazing year to improvement of rangeland conditions. standards and guidelines would be initiate significant progress toward Additionally, it was intended to imposed retroactively on existing plans. rangeland health in cases where the recognize that permits and leases A number of other comments were authorized officer determines that operated by good stewards require less received on various details of the existing management practices are administration. process and scope of AMPs and other failing to ensure significant progress The proposed rule would have activity plans. These comments will toward meeting the standards or toward clarified that the inclusion of other than prove useful in developing subsequent conforming with the guidelines. Under public lands in an AMP or other activity guidance for BLM’s field management this provision, terms and conditions of plan is discretionary. The use of ‘‘shall’’ staff. existing permits could be revised, under in the existing regulation could have The proposed rule included the term the procedures specified in new been read to require inclusion of such ‘‘consultation, cooperation and § 4130.3–3, to incorporate new terms lands. coordination’’ in the requirements for and conditions to address resource The amendment would also have preparing AMPs and other activity plans condition issues. Such decisions by the specified that a requirement of under paragraph (a) but used the term authorized officer will be subject to conformance with AMPs be ‘‘consultation’’ in paragraph (e) rights of appeal under subpart 4160, as incorporated into the terms and pertaining to revising and terminating will decisions to adopt, terminate or conditions of the grazing permit or such plans. In the rule adopted today, modify an AMP or its functional lease. This proposal would have the term ‘‘consultation, cooperation and equivalent. changed a provision in existing coordination’’ is substituted for In accordance with the above paragraph (c) which required that the ‘‘consultation’’ in paragraph (e) and discussion, § 4120.2 is adopted as plan itself, rather than a requirement to remains as proposed in paragraph (a). proposed with the exception of minor conform with the plan, be included in The Department disagrees that edits, the addition of the explicit the terms and conditions of the permit involvement of the interested public reference to other activity plans serving or lease. This provision was intended to will delay the final outcome of the as the functional equivalent of AMPs, conform with existing practice regarding planning process. While at some stages, and the substitution of the term how AMP decisions are reflected in involvement of the interested public in ‘‘consultation, cooperation and permits and leases. AMPs may slow the process, their coordination’’ for the term Proposed paragraph (c) would have involvement also will result in fewer ‘‘consultation’’ in paragraph (e). been a new provision. It would have drawn-out protests and appeals and provided that the authorized officer give more rapid implementation on the Section 4120.3–1 Conditions for Range an opportunity for public participation ground. The Department intends that Improvements in the planning and environmental interested parties will be involved in all The proposed rule would have analysis of proposed AMPs affecting the levels of planning, including the amended this section by inserting a new administration of grazing and give development of land use plans and the paragraph (f) specifying that range public notice concerning the availability preparation of site-specific management improvement projects would be of environmental documents prepared activity plans such as AMPs. It remains reviewed in accordance with NEPA as a part of the development of such the responsibility of BLM to make requirements, and that the decision plans, prior to implementing them. It timely decisions. These rules do not document issued as a result of that would also have provided that the change existing time frames processes review would be considered the decision document following the such as protests or appeals. proposed decision for purposes of environmental analysis would be The provision allowing resource subpart 4160 of this part. considered the proposed decision for activity plans to serve as the functional This provision would not have the purposes of subpart 4160 of this equivalent of AMPs is not outside the introduced any new requirement. part. This provision was intended to Secretary’s authority, and the final rule Rather, it would have clarified in these 9934 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations regulations requirements that already improvements constructed on public temporary structural range exist under NEPA. The provision would lands. The proposed section would have improvements, as that paragraph also have ensured that the same provided that title to temporary grazing- duplicates requirements in final document would have been used to related improvements used primarily for § 4120.3–3, Range improvement satisfy NEPA requirements and to livestock handling or water hauling permits. provide a final—and appealable— could be retained by the permittee or Finally, a statement is added to clarify decision to a permittee or lessee. This lessee. This change would have that any contribution made by a would have prevented duplication of conformed with the common law permittee or lessee to such a permanent effort on the part of the agency or the practice of keeping title of permanent improvement will be documented by permittee or lessee. improvements in the name of the party BLM to ensure proper credit for the In effect, the provision that the NEPA holding title to the land, and with purposes of § 4120.3–5, Assignment of decision document would have served existing Forest Service policies. The range improvements, and § 4120.3–6(c), as the proposed decision of the amendment would not have changed Removal and compensation for loss of authorized officer for purposes of any agreements currently in effect. range improvement. subpart 4160 would have directed The Department received many The Department disagrees that this appeals of those decisions through the comments on this section. Some provision will result in fewer range administrative remedies process commenters expressed concern that the improvements and declining range provided in that subpart. Under the provisions would lead to fewer range values, range conditions, and wildlife proposal, that subpart would have improvements and declining ranch populations. The Forest Service’s provided an opportunity for a field values, range conditions and wildlife experience does not support this hearing on the facts of the case by an populations. Others questioned if contention. Improvements add to the administrative law judge, rather than reconstructions were considered new management effectiveness and the value requiring the appeal to go directly to the improvements and whether existing of the ranch operation. Any Interior Board of Land Appeals. This improvements would be affected by the contributions the permittee makes to would have streamlined the appeals requirement that the United States range improvements are recognized and process. retain title to improvements. Many documented. The incentive for a The Department received few stated that the provision could afford permittee to invest in range comments on this section. Most environmental groups the opportunity improvements is that it is in his or her expressed concern that following the to take control of range improvements financial interest to improve use of the NEPA process would result in and felt livestock operators should be grazing allotment. unnecessary delay in approving consulted if improvements are planned. Reconstruction within the bounds of environmentally sound range Others raised takings questions. the original range improvement permit improvement projects, or would The Department has adopted a will not require a new agreement. discourage such improvements from modified version of the proposal. The However, work that is outside of the being made. title of the final rule is changed to original range improvement permit or The Department has decided to adopt clarify that the section affects authorization will be considered a new this provision as proposed, with one cooperative range improvement improvement. Determinations as to minor change. The term ‘‘range agreements. Paragraph (b) is revised by whether a particular instance is a improvement’’ is added between the adding examples of types of permanent reconstruction or a new construction words ‘‘cooperative’’ and ‘‘agreement’’ range improvements that will be will be made on a case-by-case basis. in paragraphs (b) and (e). This term was authorized by cooperative range The Department disagrees that this added for consistency with other improvement agreements. The existing provision will allow other parties to provisions in the final rule. This change language of §§ 4120.3–2 and 4120.3–3 of take control of range improvements. clarifies that the cooperative agreements the current rule has long stated that the New permanent range improvements being referred to are range improvement title of nonremovable improvements will be issued by cooperative range agreements, not cooperative agreements shall be in the name of the United States improvement agreement with the permit between BLM and the States, or any and the title of removable range holder, and will be in the name of the other type of cooperative agreement. improvements shall be in the name of United States, regardless of who the The Department does not expect that the permittee or lessee, or shared in permittee is. Responsibilities of each the NEPA review process will unduly proportion to the amount of cooperator, the grazing permit holder delay implementation of range contribution, in the case of situations and the United States will be improvement projects. The rule retains covered by § 4120.3–2. This final rule documented in the cooperative range the NEPA requirement. Following the clarifies further these provisions improvement agreement. NEPA process is a requirement of law regarding temporary and permanent The provision does not limit the and is current practice; it is not just a improvements. The United States will Secretary’s authority to cooperate with requirement of this regulation. have title to new permanent range other agencies and organizations to improvements. The rule conforms BLM plan, develop, and maintain Section 4120.3–2 Cooperative Range policy with the common law practice of improvements on the public lands to the Improvement Agreements keeping title of permanent benefit of other public land resources. In the proposed rule, the heading of improvements in the name of the party Where such developments may affect this existing section would have been holding title to the land, and with livestock operations, permit holders will revised to clarify that this section deals current Forest Service administrative be consulted. Decisions to determine the with cooperative range improvement provisions. need for range improvements will not be agreements as opposed to ‘‘cooperative Additionally, the adopted language affected by this provision. The rule agreements’’ with other Federal or State clarifies that the provision applies to continues the policy that range agencies. The proposed rule would have cooperative range improvements improvement needs may be identified amended this section to specify that the agreements after the effective date of the by the operator, BLM, or interested United States would have title to all rule. The final rule does not adopt members of the public. The new permanent grazing-related proposed paragraph (c), regarding responsibility for cost to be borne by the Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9935 respective cooperators in new range improvements and facilities by the had a policy of retaining title to improvement projects will be described operator who has an authorization for permanent improvements and has not in the cooperative range improvement temporary grazing use; the authorized observed that private contribution has agreement, and will be determined on a officer may resolve questions been discouraged. Similarly, financial case-by-case basis. concerning compensation. Where a institutions, in reviewing loan For discussion of takings issues, see settlement cannot be reached, the applications, consider the value of the the General Comments section of this authorized officer would issue a range improvement in terms of how the preamble. temporary grazing authorization to improvements will affect the Section 4120.3–3 Range Improvement compensate the preference permittee or profitability of the ranch operation. Permits lessee. The intent of this proposal was This rule affects the title of to protect the interest of the permittee Paragraph (a) of this section would improvements authorized after the or lessee in range improvements in effective date of this rule. Title to have been amended to change existing those infrequent cases where a third provisions authorizing permittees or currently authorized improvements will party makes use of the allotment. not be affected. lessees to apply for a range Many commenters questioned improvement permit to install, use, whether the proposal was within the The provisions pertaining to the use maintain, or modify range improvement authority of TGA. They also stated that of range improvements by parties projects. Two changes would have been the provisions pertaining to title of temporarily authorized to use an made to this provision. First, the range improvements would remove allotment would not have established reference to permanent improvements incentives for permittees to make new policy toward the issuance of would have been deleted. This change improvements, would make it difficult nonrenewable permits. Proposed would have been consistent with the to obtain financing, would adversely paragraph (c) would merely have made proposed revisions to § 4120.3–2 above, affect wildlife and local economies explicit how the renewable permit or which would have consolidated all because fewer improvements would be lease holder’s interests in range provisions regarding permanent built, and could jeopardize existing improvements would be protected in improvements in that section. Secondly, ‘‘Section 4’’ (TGA) permits. those instances where another party is the phrase ‘‘within his or her designated Other commenters were concerned authorized to graze within the allotment allotment,’’ which referred to that the Department would require on a temporary nonrenewable basis. improvements needed to achieve permittees or lessees to construct range In accordance with the above management objectives, would have improvements at their expense. Some discussion, the Department has decided been changed to ‘‘established for the commenters asked what requirements to adopt this section as proposed, with allotment in which the permit or lease there would be for maintenance. They one major change. In the rule as is held.’’ This change was intended to also expressed concern about whether adopted, the Department has removed provide clarity to the provision and to there would be a problem of access to reference to permanent water remove the gender references in the improvements to which they did not developments from this section. The existing text. have title. provision dealing with water Existing paragraph (b) would have Commenters expressed opposition to improvements and their authorization been amended to add a list of types of provisions in proposed paragraph (c) through cooperative range improvement improvements the Department considers because, in their view, it seemed to be agreements is moved to final § 4120.3– to be temporary. The amendment would a new provision to allow nonpermittees 2, thus consolidating all provisions have clarified that permanent water to graze within another’s grazing regarding permanent improvements in improvement projects would be allotment. that section. authorized through cooperative range Under the provisions adopted here, improvement agreements consistent livestock operators may hold title to The existing language of §§ 4120.3–2 with existing Department policy. The removable and temporary improvements and 4120.3–3 of the current rule has proposed rule would have clearly authorized under range improvement long stated that the title of established that title to permanent range permits. Such improvements are largely nonremovable improvements shall be in improvements authorized after the funded by livestock operators. the name of the United States and the effective date of the rule would be held The Department disagrees with the title of removable range improvements by the United States. It would also have assertion that the provisions of this shall be in the name of the permittee or added a companion provision section are outside the Secretary’s lessee. This final rule clarifies further specifying that a permittee’s or lessee’s authority as established in TGA. Section these provisions regarding temporary contribution to an improvement would 4120.3–3, as proposed and adopted in and permanent improvements. Because have been documented by the this final rule, implements the the discussion of permanent authorized officer, to ensure proper provisions of TGA found at 43 U.S.C. improvements no longer occurs in this credit for purposes of §§ 4120.3–5 and 315. The Department also disagrees with section, the provision regarding 4120.3–6(c). the contention that the title provisions documentation of a permittee’s or The proposed rule would have will significantly affect either the lessee’s contributions to such removed existing paragraph (c). The amount of permittee and lessee improvements is no longer pertinent to proposal would have created a new contributions to range improvement or new range improvement permits. paragraph (c). This paragraph would their ability to secure financing for However, the provision for documenting have provided that the permittee or range improvement. The installation of contributions is added to § 4120.3–2. lessee must cooperate with other range improvements will remain in the Two other minor changes were made operators that may be temporarily permittee or lessee’s interest as long as in the final language. The surplus word authorized to use forage. Furthermore, the improvement assists in the ‘‘established’’ is not included in final this new provision would have management of the livestock operation paragraph (a). For clarity, the specified that a permittee or lessee or results in an improvement in the Department has added ‘‘structural’’ as a would be reasonably compensated for condition and long-term productivity of modifier of ‘‘temporary improvements’’ the use and maintenance of the range. The Forest Service has long in final paragraph (b). 9936 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Section 4120.3–8 Range Improvement statutory authority, that all funds, not public rangelands. However, all uses Fund just a portion, should return to the authorized by FLPMA will remain valid The proposed rule would have added District or State from which they came under this rule including improvements a new section to this part that addressed and that all funds should go to that primarily benefit livestock the distribution and use of the range construction, not to planning or projects management. FLPMA does not specify in what betterment funds appropriated by not directly related to livestock proportions the funds should be spent. Congress through Section 401(b) of production. Others stated that all funds The Department believes that the FLPMA for range improvement should be used for ecosystem provision, adopted today, providing the expenditure by the Secretary. The enhancement projects or supported the maximum flexibility allowed by law in proposed amendment would have concept that some funds should be spent on projects to rehabilitate the the distribution and use of these funds, provided for distribution of the funds by range and distributed on the basis of will improve the effectiveness of the the Secretary or designee; one-half of priority needs. program and result in increased overall the range improvement fund would Commenters also stated there should improvement to the public rangelands. have been made available to the State be requirements to spend funds in a Grazing advisory boards received an and District from which the funds were cost-effective manner. Some supported accounting of the fund expenditures. It derived, the remaining one-half would involvement of the RACs and the is anticipated that RACs will be afforded have been allocated by the Secretary or interested public in the decisionmaking the same information. designee on a priority basis. All range process on expenditure of the funds. Because under the rule as adopted the improvement funds would have been Other commenters asserted that the Department will be able to expend some used for on-the-ground rehabilitation, change will result in fewer funds on a priority basis, rather than protection and improvements of public improvements being constructed, and returning 100% of the funds to the State rangeland ecosystems. Current policy that BLM should not require permanent or District of origin, the distribution of requires the return of all range range improvements be constructed at range improvement projects may shift improvement funds to the District from the expense of a permittee or lessee as somewhat. However, this does not mean which they were collected. The BLM a requirement to obtain or hold a permit that the total number of projects will has found this prevents use of the funds or lease. decline. The BLM will not require in areas where they are most needed The Department’s authority for this livestock operators to fund the and results in some offices experiencing provision is found in Section 401 of construction of range improvements. difficulty expending available funds FLPMA, which directs that 50% of the Operators’ participation in the efficiently. The proposed amendment monies put in the range betterment development of range improvements would have corrected the imbalance by account be authorized to be will be voluntary. However, there may ensuring that the funds are distributed appropriated and ‘‘* * * made be some cases where BLM will have to on a priority basis. available for use in the district, region, alter grazing use in the absence of The proposed rule would have or national forest from which such needed improvements. clarified that range improvement monies were derived * * *’’ It further In accordance with the above includes activities such as planning, provides that the remaining 50% discussion, the Department has decided design, layout, modification, and ‘‘* * * shall be used for on-the-ground to adopt the rule as proposed. monitoring/evaluating the effectiveness range rehabilitation, protection, and Section 4120.3–9 Water Rights for the of specific range improvements in improvements as the Secretary Purpose of Livestock Grazing on Public achieving resource condition and concerned directs.’’ While it has been Lands management objectives. Maintenance of common practice for the Secretary to range improvements and costs return the discretionary 50% to the Today’s action adopts with one associated with the contracting of range District of origin in recent years, that is addition this section of the proposed improvements was added to the list of not required in FLPMA. The rule which provides that the United activities for which range improvement Department intends to allocate the States will acquire, perfect, maintain, funds may be used. Maintenance was an discretionary 50% on a priority basis to and administer water rights obtained on allowable use of range improvement better meet BLM management objectives public land for livestock grazing on funds prior to a policy change made in and respond to resource condition public land in the name of the United 1982. concerns. States to the extent allowed by State The proposed rule would have FLPMA also provides that funds can law. This section is prospective, required consultation with affected be expended on projects other than clarifies BLM’s water rights policy for permittees, lessees, and the interested those directly related to livestock- livestock watering on public lands, and public during the planning of range oriented projects. The act specifies that makes BLM policy consistent with that development and improvement ‘‘* * * such rehabilitation, protection, of the Forest Service. programs. RACs would also have been and improvements shall include all The section does not create any new consulted during the planning of range forms of range land betterment Federal reserved water rights, nor does development and improvement including but not limited to, seeding, it affect valid existing rights. The programs, including the development of and reseeding, fence construction, weed provisions of this final rule are not budgets for range improvement and the control, water development, and fish intended to apply to the perfection of establishment of range improvement and wildlife habitat enhancement water rights on non-Federal lands. Any priorities. The provisions are adopted as ** *’’ FLPMA also allows the right or claim to water on public land proposed. expenditure of funds for activities for livestock watering on public land by The Department received a few necessary to put projects on the ground or on behalf of the United States remain comments on this section. Most such as project planning, design, layout, subject to the provisions of 43 U.S.C. concerns were about how funds would modification and monitoring. An 666 (the McCarran Amendment) and be expended. Some commenters important goal of the Department in Section 701 of FLPMA (43 U.S.C. 1701 asserted that the proposal was expending the range betterment fund note; disclaimer on water rights). inconsistent with the Department’s will be to improve the health of the Finally, the proposal does not change Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9937 existing BLM policy on water rights for regarding livestock watering on public assessments. Regulations dealing with uses other than public land grazing, lands should not have a negative impact impact assessment require consideration such as irrigation, municipal, or on adjacent property. The provision of socio-economic impacts. industrial uses. does not address water rights on non- Section 4120.5–1 Cooperation With Some States, such as Wyoming, grant Federal lands. The language adopted State, County, and Federal Agencies public land livestock grazing water today also does not change existing rights in the name of the landowner but BLM policy on water rights for uses This section would have recognized also, in situations where the grazing other than public land grazing, such as existing cooperation with State cattle lessee or permittee of State or Federal irrigation, municipal, or industrial uses. and sheep boards, county and local public land applies for a water right on The Department has concluded that noxious weed control districts, and that land, automatically include the wildlife and range conditions will be State agencies involved in State or Federal landowner as co- benefited by clarifying BLM water environmental, conservation, and applicant. After consideration of public policy. It is the Department’s intent in enforcement roles related to these comment and further analysis, we have adopting the language of this section to cooperative relationships. The TGA, determined that co-application or joint promote the use of the public lands on Noxious Weed Control Act, FLPMA, ownership will be allowed where State a sustained yield basis for multiple use PRIA and other statutes and agreements policy permits it; for example, the purposes. require cooperation with State, county Wyoming policy is consistent with this and local governments, and Federal final rule. Section 4120.5 Cooperation in agencies. Some comments questioned whether Management Many commenters wanted the the language violates State or Federal The proposed rule would have added Department to strengthen the language law. Some commenters questioned a new section on cooperation in requiring cooperation with local and whether the language would deny management to recognize and regulate county governments and their land use permittees the full use of water and cooperation with, among others, State, planning efforts. Other commenters what the impact would be on county, Indian tribal, local government wanted the list to include private land transferring the point of use of water entities and Federal agencies. The owners, only groups that can prove an from or to public lands. Some provision is adopted as proposed. affected interest in the livestock commenters suggested that the Very few comments were received on business or only individuals who have regulation should state that BLM will this section, and most commenters invested as much money as the not have special priority in water combined their comments with livestock operators. Many commenters adjudications and that the regulation comments on § 4120.5–1. Some requested that the Department strike does not affect water on private lands. commenters requested that ‘‘coordinate references to the Wild Free-Roaming The Department’s intent in adopting and consult’’ be added after ‘‘cooperate’’ Horse and Burro Act and expressed that this section is to provide consistent and that the Department remove Animal Damage Control and similar water policy guidance to BLM references to ‘‘institutions, predator control agencies should be personnel. It is not the Department’s organizations, corporations, listed as a cooperating partner. intent to create any new Federal associations, and individuals.’’ Others Other commenters wanted the reserved water right, nor does it affect asked that the Department give special Department to show greater deference to valid existing rights. It has been BLM’s consideration to the customs, culture State wildlife agency decisions on policy to seek water rights under State and economic impact of projects on critical range for wildlife species, to substantive and procedural existing local communities. strengthen cooperation on noxious requirements; the language adopted The Department will ensure public weeds, and to use its authority to reduce today does not alter that policy. involvement and cooperation, in the the spread of noxious weeds by The language adopted today clarifies management of the public lands to the requiring certified weed free forage and that the United States will acquire, maximum extent possible. All citizens by spending more rangeland perfect, maintain, and administer water have a stake in the management of the improvement funds on weed control. rights obtained on public land for public lands. FLPMA is very specific as The Department believes that the livestock grazing on public land in the to the requirement for cooperation with provision as proposed adequately name of the United States to the extent local land use planning. It requires the addresses its legal responsibilities and allowed by State law. Questions such as Secretary to coordinate land use its desire to cooperate with State, qualified applicants, what constitutes planning and management activities county and Federal agencies, and has beneficial use, and quantity and place of with State and local land use planning adopted it with no changes. use are addressed through State and management programs and directs This section requires cooperation in procedural and substantive law. Thus, that land use plans shall be consistent management. It does not deal with the the Department is not attempting, with State and local plans to the Department’s responsibilities to consult through the language adopted today, to maximum extent possible under Federal with permittees or lessees or other prejudge the outcome of proceedings law and the purpose of the Act. private parties. The section derives in under State water law. For the same The section deals with the part from the statutory provision in reason, the Department has not adopted requirement for cooperation in section 315h of TGA, which requires the suggestions to include language relating management. There is no basis to add Secretary to provide, by suitable rules, to priority of rights or water rights on the terms ‘‘coordinate and consult.’’ for cooperation with local associations private lands. These matters are Section 315 of TGA specifically calls for of stockmen, State land officials, and addressed by State substantive and ‘‘cooperation’’ with agencies engaged in official State agencies engaged in procedural requirements. conservation or propagation of wildlife, conservation or propagation of wildlife Other comments questioned whether local associations of stockmen, and interested in the use of the grazing the provision would have a negative State land officials. districts. While other authorities would impact on adjacent private property, All proposed project and planned allow the Secretary to expand the reach wildlife, and range conditions. actions undertaken to implement these of this provision, under TGA the Clarification of BLM water rights policy regulations will require more local level Secretary could not limit it to those with 9938 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations an ‘‘affected interest.’’ That terminology Section 4130.1 Applications the criteria to include the applicant’s relates to different statutory provisions, A new title, Applications, is added at history of compliance. Others inquired and is not germane here. § 4130.1, to improve the logical about additional definitions. Additionally, FLPMA is very specific The Department declines to accept the structure for the subpart. as to the requirement for cooperation commenters’ suggestions to define with local land use planning. It requires Section 4130.1–1 Filing Applications additional terms because they are the Secretary to coordinate land use (Formerly Section 4130.1) defined by common usage in rangeland planning and management activities In the proposal, there would have management or law. with State and local land use planning Although TGA does not specifically been two minor changes in this section and management programs and directs deal with competing applications, the from the existing rule. ‘‘Conservation that land use plans shall be consistent Department does not believe that use’’ would have been substituted for with State and local plans to the Congress, in passing TGA, intended the ‘‘nonuse’’ in the parenthetical phrase to maximum extent consistent with Department to issue grazing permits to clarify that such use must be specified Federal law and the purpose of the Act. documented violators of statutory The Department will ensure public in the application. Another new phrase provisions related to grazing use. involvement and cooperation, including would have specified that applications Additionally, improvement of the State wildlife agency input, in the for annual grazing authorizations, which rangeland under a specific permittee or management of the public lands to the in the proposal included active grazing lessee’s livestock management is a valid maximum extent possible. However, it use and temporary nonuse, also had to factor to be considered, when evaluating is not appropriate to single out wildlife be filed with BLM. conflicting applications. Furthermore, agencies for greater deference in these The Department received very few this review should extend to all persons regulations. On a case-by-case basis, comments on this section. The few who control a permit or lease, not just such deference may be appropriate. comments that the Department did the specific applicant. The specifics of noxious weed receive concerned the concept of In accordance with the above programs are not germane to this ‘‘conservation use.’’ This term is discussion, the Department has decided section. It is the intent of this rangeland discussed at § 4130.2. to adopt this section as proposed. management effort to improve the Upon further consideration, the Department’s ability to address such Department believes that substituting Section 4130.2 Grazing Permits or issues, including through increased ‘‘conservation use’’ for ‘‘nonuse’’ may be Leases (Section Number Remains the cooperation with State agencies confusing, because conservation use is Same) responsible for weed control. actually a subcategory of active use. Under the proposed rule, permits and Furthermore, the meaning of the other leases would have continued to be Subpart 4130—Authorizing Grazing Use phrase proposed to be added to this offered for 10-year terms except in Many sections of subpart 4130 have section can be covered by existing specified circumstances. The proposed been redesignated from the existing CFR language. Accordingly, the Department rule would have clarified that all section identifiers. These changes are has decided not to finalize the proposed grazing permits and leases issued, intended to put the various sections into changes to this section. However, to including the transfer or renewal of more logical groupings. The following improve the structure and logic of the permits and leases, would have table shows the relationship between subpart, and to clarify the purpose of included terms and conditions section numbers in the existing rules this section, it is retitled, ‘‘Filing addressing the national requirements and section numbers in the rule adopted Applications.’’ and standards and guidelines proposed today: Section 4130.1–2 Conflicting under subpart 4180, as well as terms and conditions establishing allowable Old CFR section Final rule Applications (Section Number Remains section the Same) levels, seasons and duration of use, and other terms and conditions that would 4130.1 ...... 4130.1±1 The proposed rule would have assist in achieving management 4130.1±1 ...... 4130.4 amended paragraph (b) of this section to objectives, provide for proper range 4130.1±2 ...... 4130.1±2 expand the criteria used in evaluating management, or assist in the orderly 4130.2 ...... 4130.2 conflicting applications to include the administration of the public rangelands. 4130.3 ...... 4130.5 applicant’s ability to provide for proper The proposal also would have 4130.4 ...... 4130.6 use of rangeland resources. When two or 4130.4±1 ...... 4130.6±1 clarified the requirements for 4130.4±2 ...... 4130.6±3 more otherwise qualified applicants consultation with interested parties 4130.4±4 ...... 4130.6±4 apply for the same permit or lease, such prior to the issuance or renewal of 4130.5 ...... 4130.7 considerations are legitimate methods of grazing permits and leases. The 4130.6 ...... 4130.3 determining which applicant should be proposal also would have clarified that 4130.6±1 ...... 4130.3±1 selected. the provision prohibiting the offer or 4130.6±2 ...... 4130.3±2 The new criteria would have grant of permits and leases when the 4130.6±3 ...... 4130.3±3 promoted BLM’s ability to award applicant refuses to accept the terms 4130.7 ...... 4130.8 permits to good stewards of public lands 4130.7±1 ...... 4130.8±1 and conditions of the offered permit or 4130.7±2 ...... 4130.8±2 in cases where there were competing lease would have applied to applicants 4130.7±3 ...... 4130.8±3 applicants by taking into account the for renewals and new permits and 4130.8 ...... 4130.9 applicant’s ability to manage the land. leases. The criteria included the applicant’s The proposed rule also would have In addition to changes in many section history of compliance with the terms clarified the granting of conservation numbers, the headings of several of the and conditions of Federal and State use and temporary nonuse. sections have been revised to provide grazing permits and leases. Conservation use would have been more descriptive titles. The following The few comments that the established as one of the allowable uses discussion will use the new numbers Department received on this section a permittee or lessee may be granted, and cross reference the old numbers. addressed primarily the expansion of when in conformance with applicable Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9939 land use plans, activity plans and changed to ‘‘consultation, coordination, adequate to make conservation use standards and guidelines. Finally, the and cooperation.’’ Some commenters decisions. Conservation use will only be proposed rule would have provided that believed that public input should only approved when it is found to be in forage made available as a result of be made part of NEPA analysis and conformance with land use plans and temporary nonuse may be authorized for planning efforts affecting grazing. when it is determined it will promote temporary use by another operator, Others stated that authorized officers resource protection or enhancement. although forage used for conservation should be able to issue or renew permits This determination may require purposes would not be available to to permittees who demonstrate good additional data in a few cases but the other livestock operators. stewardship without input from the Department anticipates that available The Department received numerous public. data and input from the permittee or comments on this section. Major themes Some commenters held the lessee and others will usually prove expressed in the comments were perception that the proposed rule would sufficient. In addition, allotments objections to conservation use, concern significantly affect the term of permits placed in conservation use will be that expanded public involvement and were concerned that decisions to monitored in a fashion similar to other would negatively affect applicants for issue permits and leases for terms of less allotments to determine whether such permits and leases, and opposition to than 10 years could be subjective and use is consistent with standards and what was perceived as provisions to unfair. Others asserted that terms of less guidelines, and established resource limit permit and lease tenure. than 10 years would be contrary to management objectives. These Many commenters expressed FLPMA while still others suggested that requirements, as well as the 10-year objections to the proposal for only five-year permits and leases should limit on permits specifying conservation conservation use, asserting that be offered to poor stewards. Still others use, will discourage persons from conservation use would hurt rangelands suggested that permits should be made obtaining permits for the sole purpose of and should only be allowed where available for competitive bid at the end placing them in conservation use. scientific data demonstrates that rest of the 10-year term. Conservation use is requested by the from grazing will benefit the land. Many A number of respondents suggested permittee and approved by the held the perception that conservation provisions pertaining to temporary authorized officer based on the use would be required by the authorized nonuse should be more flexible, that provisions in the applicable land use officer. Others thought the proposal decisions to not make livestock use plan. The BLM will not impose would remove the requirement for base should be left to the ranchers, and that conservation use on an unwilling property, would jeopardize water rights, leaving forage placed in nonuse permittee. Conservation use must be would result in inadequate maintenance available to other applicants would included as part of an application by a of range improvements, would reduce discourage good stewards from resting permittee or lessee and must be found tax revenues, should require payment of areas (i.e., others would reap the to be consistent with the land use plan. grazing fees for conservation use, would benefits of the range the permittee Appropriate terms and conditions will lead to reduced fees available for protected). be attached to permits that specify rangeland improvements, would Some concern was expressed about conservation use, and permittees will be adversely affect operators on isolated or the provisions allowing the authorized subject to all applicable requirements scattered public lands, and would result officer to deny permits and leases to under the grazing program rules. This in purchase of permits for conservation applicants who refuse to accept terms includes the requirement for base purposes. Others asserted that and conditions. Some commenters property. See discussion of § 4110.2–1. conservation use was a closing of the believed this provision would result in Whether placing all or portions of range that would require following ‘‘arbitrary’’ terms and conditions. Some allotments in conservation use will certain notice and comment commenters suggested a one year affect water rights will depend on the requirements of FLPMA, while still continuance of a permit where a applicable State laws. However, resting others thought conservation use should permittee or lessee seeking renewal grazing land is a commonly accepted be offered for a term of greater than 10 refuses to accept proposed terms and grazing practice. Permit and lease years. Some commenters thought that conditions in order to provide time to holders possessing rights to water, as allotments that are not being grazed reach agreement. well as BLM, will need to consider should be retired or reallocated rather Some reviewers suggested a review to potential effects on water rights in than placed in conservation use. determine ‘‘suitability’’ of the range to deciding to apply for or approve Finally, some comments were support livestock grazing should be conservation use. concerned that conservation use would required prior to permit or lease With regard to maintenance and be severely limited by existing land use issuance and offered criteria to be operation of range improvements where plans because the concept is new and followed. Some commenters asserted the forage has been devoted to has not been considered in past that issuance of 10-year permits requires conservation use, the Department planning efforts. NEPA compliance and should be subject intends that in most, if not all, cases, Considerable concern was expressed to administrative appeal, and that permittees will be required to maintain about the addition of public annual authorizations to be made in the improvements during the term of the involvement prior to the issuance or absence of approved activity plans conservation use. Requirements for renewal of grazing permits and leases. should be subject to administrative maintaining range improvements will be Some commenters opposed the appeal. made a condition of any permit expansion of public input opportunities Many comments received in this specifying conservation use. on the grounds that such opportunities section that pertained to the definition Occasionally, where an existing are not part of making decisions in other of ‘‘temporary nonuse’’ are addressed at improvement enhances neither the goals resource programs and that grazing § 4100.0–5. of conservation use nor the goals of decisions would be unduly delayed to The Department disagrees with grazing use or any other multiple use, the detriment of the permittee and assertions that conservation use will be maintenance may not be required. lessee. Others suggested that the detrimental to the health of the land. Depending upon the circumstances, requirement to consult should be Existing data should generally be specific activities to improve range 9940 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations conditions might also be incorporated in land use plans don’t consider The provision that applicants who the terms or conditions of a permit. conservation use specifically, it is not a refuse to accept the terms and Significant reductions in tax revenues requirement that conservation use be conditions of the offered permit or lease or available range improvement funds explicitly addressed in plans. Rather, it will be denied will not result in are not expected to result from must be found to conform with the land arbitrary terms and conditions. The conservation use. While grazing fees use plan. The Department believes that general requirements of the previous will not be collected for conservation conservation use will conform with land rule for determining appropriate terms use, since no forage is being consumed, use plans in most cases. and conditions have been retained in the Department considers that the For responses to general comments this rule. Also, should the applicant benefits to be derived by the concerning public involvement please believe terms and conditions are not conservation use will offset the see §§ 1784.0–5 and 4100.0–5. Analysis appropriate, the applicant may appeal relatively minimal decrease in grazing of permit or lease issuance currently the decision of the authorized officer receipts. The FEIS analyzes the requires NEPA compliance which in under subpart 4160. If, after economic effects of the various turn provides for broad public input. In communication with the involved management alternatives considered in addition, issuance or denial of an parties, the decision to deny or approve arriving at this final rule. application constitutes a decision of the an application is appealed, the Concerning the perceived problems authorized officer and, as such, is authorized officer would have the associated with scattered intermingled protestable and appealable under option to issue a temporary public lands, conservation use is at the subpart 4160. Careful consideration of nonrenewable permit pending option of the permittee or lessee subject public input early in the process for resolution of the appeal. to approval of BLM. If intermingled issuing or renewing permits should The Department has chosen not to lands create a problem for the minimize the time spent in resolving incorporate suggestions pertaining to permittees or lessees, they may decide protests and appeals. In response to suitability determinations prior to not to apply for conservation use. comments, consultation, coordination, permit or lease issuance. FLPMA sets The Department disagrees that and cooperation is inserted in the forth specific factors BLM must consider conservation use constitutes a ‘‘closing language adopted today. in connection with land use planning of the range’’ that is subject to notice and use authorizations. A rigid Concerning the comments that and comment requirements of FLPMA. suitability review is not specifically expressed concerns over permit tenure, Presumably the commenter was required by FLPMA. Moreover, the the proposed rule and the rule being referring to requirements involved when process associated with land use adopted today vary little from the a major use is eliminated from very planning and decisions on use existing rule. The principal change large tracts of public land (43 U.S.C. authorizations, including NEPA pertaining to permit tenure that was 1712); however, this statutory provision compliance and application of proposed was establishing permit and does not pertain to conservation use standards and guidelines, adequately which does not constitute an exclusion lease terms to coincide with the terms address concepts of suitability. The of a major use. Conservation use is a of any base property leases. The fundamentals of rangeland health, grazing management practice and does authority for this and other tenure guiding principles for State or regional not constitute a permanent retirement of provisions is clearly established by standards and guidelines, and the a grazing allotments. Decisions to retire FLPMA (43 U.S.C. 1752(b)) which states fallback standards and guidelines, grazing allotments are considered permits and leases may be issued for presented in subpart 4180 of this final through BLM’s land use planning terms less than 10 years when rule, will focus on attaining and process. determined to be ‘‘* * * in the best maintaining healthy rangelands. The 10-year limitation on interest of sound land management.’’ The use of suitability determinations conservation use is consistent with the Decisions to approve or deny a permit was considered in the FEIS under the statutory requirements for permit or lease application are appealable alternative titled Environmental limitations. As adopted today, under subpart 4160. The Department Enhancement. Readers are encouraged conservation use could be approved for does not agree with the suggestions to to review the discussion of suitability in up to 10 years. FLPMA (43 U.S.C. end preference for renewal in favor of that document. 1752(a)) requires that grazing permits or competitive bidding. Given the This rule will not change existing leases be issued for a term of 10 years intermingled patterns of some public NEPA implementation procedures. As or, in circumstances specified at 43 lands, statutory provisions pertaining to stated above, decisions under this U.S.C. 1752(b), less. This limit also renewal of permits, and administrative section are appealable under subpart recognizes that conservation oriented obstacles, competitive bidding would 4160. Appealable decisions include the objectives may be met or revised and the not serve as a viable option in many issuance or denial of permits and leases forage may then be re-allocated for use instances. Competitive bidding for and modification of terms and by livestock. This also is the rationale permits and leases was analyzed in the conditions. As explained at § 4130.4, for why the grazing privilege is not FEIS. annual ‘‘authorizations’’ are merely cancelled or ‘‘retired’’ or why the area The rule as proposed and adopted validations that the requested use falls is not closed to livestock grazing. today provides a great deal of flexibility within the terms and conditions of the To clarify how a permittee can change to permit and lease holders in terms of permit or lease. Normally, they do not back to active use, the final rule is temporary nonuse. Under this rule, require further NEPA analysis or public modified from the proposal to include applications for temporary nonuse will input. However, issuance of a grazing conservation use in § 4130.4(b), generally be approved. Where the permit or lease, even a one-year or ‘‘Approval of changes in grazing use limitations placed on temporary nonuse nonrenewable permit or lease, does not within the terms and conditions of (maximum of three years and open to all under the provisions of the new permits.’’ other applicants) prevent the permittee § 4130.4, and would therefore be subject In regards to the comment that the or lessee from meeting their needs, the of NEPA analysis, consultation ability to authorize conservation use option of applying for conservation use requirements, and the right of protest will be severely limited because current remains. and appeal. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9941 In accordance with the above The standards and guidelines will be through monitoring, then grazing should discussion, the Department has decided made part of the terms and conditions not be allowed. to adopt this section as proposed except of the permit in accordance with Use of other sources of information for replacing ‘‘consultation’’ with § 4130.3. Levels of permitted use are besides monitoring are discussed above, ‘‘consultation, cooperation and subject to adjustment, depending in part principally at § 4110.3 and also at coordination’’ in reference to obtaining on resource condition concerns, in § 4110.3–2. Carrying capacity for the public input, replacing proposed accordance with § 4110.3–2. Livestock allotment is set by the permit or lease. language pertaining to issuance of operators are required to get approval Changes in permitted use, including the permits and leases for a period of less from the authorized officer before requirement that they be supported by than 10 years with wording taken making use of any resource beyond the monitoring, field observations, directly from FLPMA (43 U.S.C. 1752), uses of public resources directly ecological site inventory or other data is and adding to the requirement that associated with livestock grazing, as addressed at § 4110.3. The methods to temporary nonuse and conservation use provided in their permit or lease. be used are more appropriately dealt be in conformance with plans, Monitoring schedules may become part with under subpart 4110 rather than standards, and guidelines a requirement of the terms and conditions of some being included as a parenthetical for conformance with the fundamentals permits and leases, especially where statement in § 4130.3–1. of rangeland health presented in activity plans have been completed for The fallback standards and guidelines § 4180.1. the allotment. are reasonable and achievable. Field In accordance with the above testing during development of this Section 4130.3 Terms and Conditions discussion, the Department has decided proposal showed significant (Formerly, Section 4130.6) to adopt the provision as proposed. conformance between fallback standards This section would have required that and guidelines and existing land use permits and leases incorporate terms Section 4130.3–1 Mandatory Terms plans. Regional standards and and conditions that ensure conformance and Conditions (Formerly, Section guidelines will be developed with full with the national requirements and 4130.6–1) public participation (including grazing established standards and guidelines. This section would have been permittees and lessees) and in This requirement would have amended to remove reference to consultation with the RAC. This level of established that terms and conditions of acceptable methods for determining public involvement will help ensure permits and leases are the principal carrying capacity and to remove the that the regional standards and vehicle for implementing the standards cross references for those sections of the guidelines developed will be realistic and guidelines and thereby the precepts rule that detail how stocking levels are and achievable. Issues relating to the of ecosystem management. adjusted. This change was made to standards and guidelines are discussed A few commenters stated that the recognize the use of methods other than more fully at subpart 4180. national requirements and established monitoring in determining carrying Reference to ‘‘monitoring’’ was standards and guidelines and are not capacity and to streamline the wording eliminated from this section not because linked to livestock grazing, are of the mandatory terms and conditions the Department does not intend to unattainable due to their lack of site- by removing unnecessary cross monitor range conditions, but because specific analysis and contradict references. Other provisions in the other sources of information are Congressional intent. proposal, such as § 4110.3, would have legitimate means for BLM to evaluate Other commenters asserted that broadened the sources of information range conditions and because this maintenance of national standards and that could be relied upon by BLM as a section does not establish the practices guidelines should be made a condition basis for making decisions about to be followed in estimating carrying of the permit and that livestock permitted use, carrying capacity, and capacity (See §§ 4110.3–1 and 4110.3– operators should have to get approval other factors. The section would have 2). from the authorized officer before been further amended by adding a In accordance with the above making use of any resource beyond their paragraph (c) that would have required discussion the Department has decided permitted forage such as water, wildlife, that standards and guidelines be to adopt the provision as proposed, with etc. and that permits should include a reflected in the terms and conditions of one change. The words ‘‘the national schedule for monitoring. permits and leases. This provision requirements, standards, and guidelines The fundamental requirements, would have ensured that individual pursuant to’’ have not been included in guiding principles and fallback permits or leases contribute to the the final rule. Actual achievement of standards are all linked directly to maintenance or enhancement of healthy national requirements, (which have livestock grazing. Developing standards rangelands and is the principal been modified from the proposed rule and guidelines at the local level, with mechanism for implementing standards and are now reflected in fundamentals heavy reliance on public involvement and guidelines. of rangeland health), standards, and through the RACs, will assure that they Many commenters asserted that guidelines may not be immediately are attainable and consistent with local monitoring should be retained as a possible but rather may depend on a conditions. The fundamental requirement for determining carrying series of actions taken over a period of requirements and guiding principles are capacity and that the Department time. based upon ecological principles. The should add a requirement that the level Department believes this is consistent of use should only be part of the terms Section 4130.3–2 Other Terms and with the intent of Congress which has and conditions if accepted uncontested Conditions (Formerly, Section 4130.6–2) mandated the Secretary in FLPMA to by the affected permittee or lessee. Paragraph (f) of this section would protect the quality of scientific, scenic, Commenters also asserted that have been amended to allow terms and historical, ecological, environmental, conformance with the national conditions to provide for temporary air, and atmospheric, water resources, requirements, standards, and guidelines changes in livestock use for the and archaeological values and to assure would be impossible. Other commenters improvement of riparian area functions the proper use of the public land stated that if the agency cannot afford to and for protecting other rangeland resources to assure sustainability. protect the public lands used for grazing resources and values consistent with 9942 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations applicable land use plans. The or lessees and the agency to manage opportunities for input during the amendments would have been rangelands properly. In cases where preparation of reports that evaluate consistent with the themes of BLM is unable to obtain permission to monitoring and other data used as a protection, improvement, and cross private lands to perform necessary basis for making decisions to change restoration of the rangelands to increase administrative functions on public grazing use or terms and conditions. overall productivity, and would have lands, BLM may not be able to allow These changes were intended to enhanced multiple-use management as grazing or other use. enhance opportunities for input by required by applicable laws. A discussion regarding ‘‘takings’’ can permittees, lessees, States, and the Furthermore, the amendments would be found above in the General interested public in decisions regarding have allowed responsive action in Comments section of this preamble. the management of the public preventing damage that could result This provision does not pertain to rangelands. from grazing during nontypical natural public access across private lands. The The Department received a few conditions (such as delaying spring need for public access is typically comments on this section. Commenters turnout during extreme drought). considered through the land use objected to the deletion of the terms Additionally, the section would have planning process. Efforts are made ‘‘cooperation and consideration;’’ to use been amended by the addition of a new through agreement and acquisition of of land use plan objectives as a test of paragraph, (h), allowing terms and easements to acquire access where whether grazing is being properly conditions to specify that BLM shall appropriate. managed; and to the involvement of have administrative access across the Paragraph (f) of the proposed rule was nongrazing interests in making forage permittee’s or lessee’s owned or leased intended only to provide for temporary allocation decisions. Some were private lands for purposes of delays, cessation, or modification of concerned that the authorized officer administering the public lands. This livestock grazing, not permanent would use land use plan objectives as a provision would have addressed actions. The word ‘‘temporary’’ is reason to reduce grazing use without attempts to prevent BLM from moved in the final rule adopted today evidence that a problem was caused by performing functions such as range use to make clear that paragraph (f) does not such use. Others supported an annual supervision, compliance checks, and provide for permanent changes in public review of allotments to trespass abatement that are needed to livestock use. In all cases the permittee determine whether they are in administer the Federal grazing permit or or lessee will be given reasonable compliance with the land use plan. lease. notice, subject to the limitations that The rule as adopted today includes This section attracted a number of result from unforeseen natural factors the terms ‘‘cooperation and comments. Many of the comments such as drought or flood. coordination.’’ This decision is expressed concern over the proposed The Department disagrees with the discussed at § 4100.0–5. Conformance language of paragraph (h). Comments commenters’ assertions that provisions with land use plan objectives is a ranged from opposition to paragraph (h) of paragraph (f) pertaining to riparian reasonable test of whether livestock on the grounds that a requirement for areas are vague. The importance of grazing is being properly managed. Land administrative access was an riparian areas in the stabilization of use plan objectives form the basis for all ‘‘unwarranted intrusion’’ to asserting soils, maintenance of water quality, management decisions within the area that such a condition on a permit would reduction of flood hazard and provision covered by the plan. Should actions constitute a ‘‘taking.’’ of habitat have been well established. taken on a given allotment not lead to Other commenters recognized a need Although the standards for proper achieving those objectives it is for BLM to conduct administrative functioning conditions for specific incumbent upon the authorized officer functions on the public land. They riparian sites are not provided in this to take appropriate action to assure that stated that the rule needs to make it rule, the basic factors of healthy riparian they do. In the final rule adopted today, clear this provision can only be used by areas are presented in subpart 4180 and language is added to clarify that this BLM personnel to conduct ‘‘BLM will be addressed in the development of section relates to the ‘‘active use or business on the Federal lands.’’ State or regional standards and related management practices.’’ This Commenters also expressed concerns guidelines. The development of these specifies that the authorized officer can that paragraph (f) would allow for standards and guidelines will involve modify terms and conditions of a permit ‘‘permit cancellation’’ without notifying public input and consultation with the or lease when the grazing use is the or consulting the permittee. Other RAC, which will help ensure that they cause of a failure to meet land use plan commenters viewed the riparian are reasonable and implementable. objectives. Additionally, decisions to improvement provisions of paragraph (f) In accordance with the above increase or decrease the grazing use or as vague. discussion, the Department has decided to change the terms and conditions of a The provisions of paragraph (h) to adopt the provision as proposed. permit or lease must be based upon regarding administrative access refer to monitoring and other data. access across private lands to reach Section 4130.3–3 Modification of The final rule requires the authorized public lands in order for agency staff to Permits or Leases (Formerly, Section officer to provide the public with the perform necessary resource management 4130.6–3) opportunity for review and comment activities on the public lands. These The proposed rule would have and to give input during the preparation include such activities as monitoring of amended this section to provide for of reports that evaluate monitoring. The resource conditions, range use consultation with States and the Department believes that providing the supervision, and evaluating the interested public concerning maximum opportunity for public input conditions of or the need for range modification of permits or leases. It assures that all factors are adequately improvements. Land management would also have added lack of considered by the authorized officer agencies, like any landowner, need conformance with the national when he/she is making allocation appropriate access to the lands they requirements or the standards and decisions. administer. Efficient access to guidelines as a reason to modify terms The Department does not agree that allotments is needed and is consistent and conditions of a permit or lease. the rule should require an annual with the partnership between permittees Finally, it would have broadened evaluation of all allotments to determine Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9943 if they are in conformance with the land expanded to ‘‘consultation, coordination are the activation of previously use plan, AMP, or other activity plan. and cooperation.’’ approved temporary nonuse or Frequency of monitoring and evaluation Some commenters were confused by conservation use, placing permitted use should be dictated by local conditions this section and asked what would in temporary nonuse or conservation rather than by general rule. happen if changes greater than 25 use, changes in dates and class, and the In accordance with the above percent were needed and how the use of forage temporarily available on discussion, the Department has decided provision affected temporary nonuse ephemeral or annual ranges. On other to adopt the provisions, with some and permitted use. than established ephemeral range, use of changes. The only substantive change is Some reviewers had concerns with forage in amounts greater than the addition of the phrase ‘‘active use or how ephemeral grazing would be permitted use that has temporarily been related management practices’’ as affected by the provision and expressed made possible by factors such as above- clarification that the basis for modifying the opinion that grazing should not be normal precipitation would require the terms and conditions of permits or permitted in the hot desert biome. It was issuance of a separate nonrenewable leases when management objectives are suggested that this provision exclude permit under § 4130.6–2 of this final not being met is use related to grazing. areas receiving less than 10 inches of rule. The title of the final section is changed rainfall annually. Decisions pertaining to permitting Based largely on the comments on to ‘‘Modification of Permits or Leases’’ ephemeral grazing use and the this section, the Department has retitled to further clarify the intent of the establishment of terms and conditions the section and removed references to section. of use are not governed by this section limitations of 25 percent or 100 AUMs of the rules. These types of decisions Section 4130.4 Authorizations within and the authorized officer requiring typically require NEPA compliance and the Terms and Conditions of Permits increases or decreases in use. The public involvement. The concerns of and Leases (Formerly, Section 4130.1–1 changes made in this final rule are commenters about authorizing Changes in Grazing Use). intended to clarify how proposed ephemeral grazing use are best changes in grazing use in any given year In the proposed rule, this section addressed in the planning and NEPA may be approved when the changes would have provided for field managers analysis processes. requested by the permittee or lessee are to make temporary changes in In accordance with the discussion consistent with the terms and authorized use, either increases or above, the rule adopted today will conditions of the permit or lease. provide that the authorized officer may decreases, not to exceed 25 percent of Changes in use under this provision the authorized use or 100 AUMs, approve requested changes in grazing would constitute the authorized officer’s use when the changes fall within the whichever is greater, following ministerial validation that the specific consultation with the affected terms and conditions established in the kind and numbers of livestock, the dates grazing permit or lease. permittees or lessees and the State of use, and other conditions of use having land or responsibility for requested by the permittee or lessee fall Section 4130.5 Free-Use Permits resources management within the within the terms and conditions of the (Formerly, Section 4130.3) allotment. This would have provided permit. This process ensures that use is This section was originally proposed latitude to the authorized officer for consistent with resource management as part of § 4130.7–1, however it is authorizing minor or incidental objectives and that operators and BLM moved to the newly redesignated adjustments in grazing use without have documented how use will be made § 4130.5 to consolidate provisions extensive consultation, simplifying day- for the upcoming grazing year for concerning free-use permits. This to-day administration. purposes of maintaining use data and section would have provided for free- The Department received a few supervising use. (Application for use under three specified comments on this section. Most grazing use outside of the terms and circumstances. commenters were concerned about the conditions of the permit or lease would The Department received a few 25 percent or 100 AUMs limit on be considered under other provisions of comments on this provision. increases or decreases in grazing use. this final rule. (See, for instance, Commenters stated that free use should Some stated the limits were §§ 4110.3–2, 4110.3–3, and 4130.3–3.) be allowed only for scientific research unreasonable, especially in respect to Consultation is not required under this projects. Commenters also stated it ephemeral ranges. They stated that in section because (a) the request under should not be authorized to control some areas occasional very wet years consideration will come from the noxious weeds, since overgrazing might produce great amounts of forage, permittee or lessee, and (b) in the future facilitated the spread of noxious weeds so that use could reasonably be consultation will have taken place at the in the first place. increased by much more than the 25 time the permit or lease was issued (see The Department foresees that this percent limitation. A few cited potential § 4130.2) and at any time the terms and provision will be used only when it is impacts of the provision such as conditions of the permit or lease are a desirable means of accomplishing a foregone employment associated with modified (see § 4130.3–3). particular task. It will also give on-the- higher use levels and increased fire This provision for validation of ground managers an additional tool to hazard if forage is not harvested. Some requested grazing use when such use meet resource objectives. For example, commenters suggested changes in use falls within the terms and conditions of there are some circumstances where should only be limited by the terms and the permit or lease does not apply to the carefully managed grazing can be used conditions of the permit or lease. issuance of permits or leases. Issuance to control noxious weeds. Often, Some commenters opposed the of permits or leases, including short- management prescriptions can be provision that the authorized officer term permits or leases, constitute direct developed within existing permits and could impose such a change without the Federal actions that are subject to NEPA leases. However, there are some permittee’s consent. A few held analysis as well as the provisions of occasions where a free-use permit could concerns that the consultation § 4130.2 of this final rule. be a valuable alternative. provisions would be burdensome, while Examples of the types of changes that In accordance with the above others thought consultation should be would be considered under this section discussion, the Department has decided 9944 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations to adopt the final rule language as achieve allotment objectives as well as requirements of this section is a proposed with the exception of its maintenance requirements are reasonable compromise which will relocation from the proposed §§ 4130.7– addressed in allotment plans and permit address the vast majority of cases and 1 to 4130.5 of the final rule. terms and conditions and are not has chosen not to extend the exclusion affected by an exchange of use to other family members or private Section 4130.6–1 Exchange-of-Use business partnerships. Grazing Agreements (Formerly, Section agreement. In accordance with the above The Department believes it is 4130.4–1) discussion, the Department has decided necessary to have all four conditions of This proposed section would have to adopt the provision as proposed with approval for granting the exclusion. The included requirements that agreements the exception of a modification to Department believes that if livestock for exchange of use must be in harmony clarify that the lands subject to the owned by sons and daughters exceeds with management objectives, and exchange-of-use agreement must be 50% of the total number authorized compatible with existing livestock within the applicant’s BLM grazing then consideration should be given to operations. The agreements would have allotment. issuing the permit in the name of the been required to address the fair sharing person owning the majority of the of maintenance and operation of range Section 4130.6–3 Crossing Permits livestock. improvements and would have been (Formerly Section 4130.4–3) In accordance with the above approved for the same term as any The proposed provisions would have discussion, the Department has decided leased lands that are offered. clarified that crossing permits are a form to adopt the provision as proposed with The Department received comments of temporary use authorization for the exception of modifications to clarify expressing a desire that all non-Federal grazing, and that the terms and the language that was originally lands which are unfenced and conditions must be contained in the proposed. intermingled with public land be temporary use authorization. Section 4130.8–1 Payment of Fees covered by an exchange-of-use The Department received very few (Formerly Section 4130.7–1) agreement and that lands must be comments on this section. Commenters located within the permittee’s area of suggested that the proposed changes The fee portion of the proposed rule use and not in another permittee’s area would slow down the approval process generated numerous diverse and of use in order for the carrying capacity and create legal risks. conflicting public comments. As noted of the non-Federal lands to be credited The Department has adopted the in the August 1993 advance notice of to the permittee without charge. Other provision as proposed. The provisions proposed rulemaking, there are a commenters objected to unnecessary adopted today are consistent with number of alternative base values and requirements or restrictions on current practice in the field. These alternative fee formulas that could be agreements and possible impacts to procedures have not resulted in unusual used to set fees for grazing public lands. private and state trust lands. delay or legal risk. There have been numerous studies and The Department disagrees that all much public debate concerning what is non-Federal lands should be covered by Section 4130.7 Ownership and a reasonable, fair, and equitable fee for an exchange-of-use-agreement. It is Identification of Livestock (Formerly, grazing Federal rangelands. necessary for the authorized officer to Section 4130.5) The draft EIS for Rangeland Reform have the flexibility to deal with local This section would have been ’94, published in May 1994, analyzed situations and use exchange of use amended to make it clear that, before seven fee alternatives: PRIA or No where appropriate. The Department grazing livestock owned by persons Action, i.e., the current fee; Modified agrees that the lands involved in an other than the permittee or lessee, the PRIA; BLM-Forest Service Proposal; exchange-of-use-agreement should be permittee or lessee is required to have Regional Fees; Federal Forage Fee within the allotment. This is current an approved use authorization and have Formula; PRIA with Surcharges; and, BLM practice and will not be altered by submitted a copy of the documented Competitive Bidding. Each was this rule. agreement or contract that includes analyzed in conjunction with The Department disagrees that the information required for BLM’s management alternatives. only restriction should be that such administration of permits and leases The preamble to the proposed rule agreements not exceed grazing capacity. and management of rangeland published in the March 25, 1994 Grazing capacity is a critical factor to resources. This generally does not create Federal Register described the pros and achieving management objectives; a new requirement. Many field offices cons of adopting an increased grazing however, it is not in the Department’s are currently requiring the information fee. The formula set forth in the interest to enter into agreements which to document the legality of the pasturing proposed rule would have addressed the are not in harmony with management of livestock owned by persons other disparity between rates charged for objectives and compatible with existing than the permittees. livestock forage on private and State grazing operations. The proposed rule would also have lands versus the rate charged for Federal Exchange of use agreements are added an exemption from some of the lands. initiated at the permittee’s request. requirements for ownership of livestock The preamble acknowledged that Lands voluntarily included in an for sons and daughters of permittees or some permittees and lessees that are exchange of use agreement would be lessees in specified circumstances. highly dependent on Federal forage, do subjected to the terms and conditions of The Department received a few not have off-ranch income, and have the permit or license. comments on the section. Many heavy debt loads, might be required to The requirement that an exchange of commenters wanted grandchildren and make financial adjustments. These use agreement contain provisions for the other family members or private adjustments, in some circumstances, equitable sharing of operation and business partnerships to be covered by might have included sale of the ranch. maintenance of range improvements the exemption and for the restrictions to However, it was expected that such will not result in the maintenance of be modified or removed. sales would occur in only limited improvements that are of no value. The The Department believes that circumstances. It was further noted that necessity of range improvements to excluding sons and daughters from the such sales occur now and could be Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9945 expected to continue even if the fee field and in Washington following professional skills, conformance of proposal were not adopted. However, release of the proposed rule. terms and conditions with effective the preamble noted that the economic Correspondence from Members of management practices such as those impact on western communities was Congress through the process has embodied in the fundamentals of expected to be localized and, in most suggested the need for Congressional rangeland health and the standards and areas, not significant because the involvement and possible action. A few guidelines of subpart 4180 of this final portion of the local economy dependent Members of Congress commented that rule and timely and appropriate upon the use of Federal forage is some increase in grazing fees is needed responses to conditions of resource relatively minor. while others indicated that the proposed deterioration that are essential to The rule proposed March 25, 1994, fee would have a heavy negative impact improving rangeland health. Based on discussed the criteria identified by BLM on public lands ranching. Some the historical data cited above, and the Forest Service by which a new Congressional commenters suggested management practices and market fee proposal should be measured: alternative methods of setting fees and conditions have a greater impact on 1. The fee charged for livestock leasing land. rangeland health than does the specific grazing should approximate market Some commenters opposed the fee level. value. Using market value helps assure proposed fee formula asserting that it The Department has concluded that, that the public receives a fair return for would promote poor resource use and due to the great amount of comment use of publicly owned resources. would not reflect a fair return for the received against the fee (either because 2. The fee should not cause public. Some public comments it was being changed too much or too unreasonable impacts on communities suggested a link between the fee formula little), significant Congressional interest, that are not economically diverse or to and overgrazing. Analysis of the and the severability of the fee and livestock operations that are greatly relationship between livestock grazing management portions of the proposed dependent on public land forage. use on BLM lands and the fee indicates rule, it is appropriate to retain the 3. The grazing fee should recover a that there is little correlation between current fee structure at this time. This reasonable amount of government costs the two at the current fee level and the will provide an opportunity for involved in administering grazing fee levels considered by the proposed Congress to consider the need to permits and leases and should provide rule. First, the amount of livestock legislate a fee increase. increased funds to improve ecological grazing allowed on Federal lands is set Other proposals also are not adopted conditions. by BLM and is independent of the fee. in the final rule. The surcharge 4. The fee system should be Second, even within the allowed limits, associated with base property leases and understandable and reasonably easy to there is no indication that the proposed multiple year billing provisions have administer. fee would have reduced livestock not been adopted. As many commenters Public comments on the proposal grazing on Federal lands. From 1982 to pointed out, authorized subleasing is a regarding payment of fees addressed 1983, while the fee decreased by 25 long-standing practice that provides how the fee formula should be derived, percent, livestock use did not increase impacts of an increase, differences at all, but instead decreased by three benefits to both the rancher and the between Federal and private lands rates, percent. While the fee remained the public. First, it helps facilitate the entry non-fee costs associated with Federal same in 1985, 1986 and 1987, livestock of new ranchers into the livestock lands, fair market value for public land use decreased by nearly seven percent business in Federal land areas. Second, grazing, fair return to the public for from 1985 to 1986 and increased about unlike Forest Service lands, many BLM livestock grazing use on public lands, seven percent from 1986 to 1987. lands are intermingled with private recovery of costs for BLM’s range Moreover, from 1992 to 1993 when the lands, and therefore are affected by and program, whether the fee represents a fee decreased, livestock grazing use affect the management of intermingled subsidy for public lands ranchers, and decreased also, instead of increasing. private land and improvements. The funds for range improvements. Therefore, it appears that even within Department has decided that the Commenters recommending no the allowable limits of livestock grazing proposed surcharge on the transfer of change to the existing fee formula use, the fee level does not have a Federal permits and leases resulting anticipated that an increase in fees dominant effect on livestock use. from base property leases would have would have adverse effects on Apparently other factors such as had negative effects that would have individual operations and rural western livestock prices, livestock inventories, outweighed the benefits of the counties. Some commenters suggested cost of production, drought, availability surcharge, and has not carried this form that other factors be considered in of other forage and market conditions of surcharge forward into the final rule. setting fees, including regional play a substantial role in determining However, the final rule adopts the economic differences and resource livestock grazing use. proposed provision that when the lease conditions. Based on the above statistics, it or permit is transferred to the base The final rule will not include the fee appears that as long as the Federal property lessee, it must be issued for a provision, thus giving the Congress the forage is not priced above market value period of not less than three years. Such opportunity to address appropriate fees the forage will continue to be used, if a lease of the base property constitutes for grazing on public lands. In the FY94 not by the current permittee, then by a a substantial long-term commitment of Interior Appropriations bill, the Senate new permittee. The grazing fee analyzed resources thus reducing the potential for voted for a moratorium on the in the preferred alternative was not large short-term windfall profits, as completion of the rangeland reform above the market value for Federal identified by the General Accounting regulations. Although the House later forage. Therefore, it would not have Office (RCED–86–168BR) and the Office approved grazing reform by a vote of significantly affected the amount or type of the Inspector General (92–1–1364), 314 to 109, the Senate did not approve of grazing use or, in turn, rangeland and helping to ensure good stewardship. the measure. health. The authorized officer has the discretion Subsequently, the Department Other factors, such as proper planning to approve a transfer for a shorter period resumed this rulemaking. Five and grazing management based on when consistent with management and Congressional hearings were held in the sound technical and scientific data and resource condition objectives. 9946 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Other changes proposed in § 4130.7– reasonable rate of return, and will aid in violations of Federal or State laws or 1 also are adopted in this final rule. In ensuring good stewardship. Sons and regulations concerning animal damage the proposed rule, these changes would daughters of permittees or lessees will control, application or storage of have amended § 4130.7–1 to make clear be exempt from the surcharge, as set pesticides, herbicides or other the definition of billing unit, to provide forth in the final rule. hazardous materials, illegal alteration or for assessing a surcharge in certain A number of comments were also destruction of stream courses, pollution instances for the public landlord’s share received on free use, which was of water resources, illegal take, of authorized livestock pasturing originally proposed in this section. Most destruction or harassment of fish and agreements associated with Federal land of the comments expressed concern that wildlife resources, or illegal destruction grazing, to clarify that grazing use that the provision would lead to numerous or removal of archeological resources. occurs before a bill is paid is an free use grazing permits. This provision Further provisions would have been unauthorized use and may be dealt with is intended to provide for the use of added to clarify that attempted payment under the settlement and penalties grazing, at the discretion of BLM, for by a check that is not honored by the sections of these rules, and that limited scientific and vegetation bank does not constitute payment and noncompliance with terms and manipulation objectives. For example, would result in unauthorized use. conditions may result in the loss of intense grazing by goats may serve as an (However, § 4140.1(c) specifically after-the-grazing-season billing effective method for the control of provides for civil penalties only where privileges. These provisions are adopted weeds such as leafy spurge. payment with insufficiently funded as proposed. The proposed provision to The Department has decided to adopt checks is repeated and willful.) The provide for free use where the primary the provision with the changes proposal also would have provided for objective of livestock use is to benefit discussed above. reclamation of lands, property or resource conditions or management, resources when damaged by such as scientific study or the control of Section 4130.8–3 Service Charge unauthorized use or actions. noxious weeds, is moved to § 4130.5 in (Formerly Section 4130.7–3) The proposed rule also would have the final rule. Section 4130.7–3 would have been added reference to the types of The Department received comments amended by redesignating the section as violations of Federal and State laws and that were both supportive and critical of section 4130.7–4, and by adding to regulations concerning pest or predator the proposed pasturing agreement applications that are made solely for control and conservation or protection surcharge. Commenters criticized the temporary nonuse or conservation use. of natural and cultural resources or the approach to calculating the surcharge The service fee would offset the costs of environment that would be prohibited because they believed it did not reflect processing such applications. acts subject to penalty under subpart the regional differences in forage value. The Department received very few 4170 where public lands are involved or Other commenters opposed absolutely comments on this section. Accordingly, affected. any pasturing on BLM lands because, the Department has decided to adopt the The Department received many comments on this section. A number of they maintained, it results in large final rule language as proposed with the the comments revealed some confusion windfall profits from sale of public exception of a minor clarifying change. resources. Still other commenters as to the interaction between § 4140.1, asserted that permittees are entitled to Subpart 4140—Prohibited Acts prohibited acts, and subpart 4170, the profit from pasturing other operators’ Section 4140.1 Prohibited Acts on penalties section of the grazing rules. cattle on their Federal grazing permits Public Lands Section 4140.1 provides a list of or leases. prohibited acts. Specifically, § 4140.1(a) The Department believes pasturing As proposed, paragraph (a)(2) of this lists prohibited acts for which agreements have a potential for short- section would have been amended to permittees and lessees might be subject term windfall profits and do not provide clarify that approved temporary nonuse, to civil penalties; § 4140.1(b) lists an appropriate incentive for good conservation use, or temporarily prohibited acts for which all persons stewardship. Therefore, the provision suspended use would be excepted from using the rangelands might be subject to for a surcharge on pasturing agreements the requirement to make substantial use, civil and criminal penalties, and new has been adopted in this final rule. and, therefore would not have been § 4140.1(c), which incorporates what However, the calculation of the subject to penalty action under § 4170.1. was proposed as § 4170.1–3, lists surcharge is changed to reflect the Other proposed amendments to this additional prohibited acts and regional differences in forage value section would have clarified paragraph establishes the conditions that must be using State private grazing land lease (b)(1) to establish that grazing bills for fulfilled before the Department may rates, as calculated by NASS. The which payment has not been received impose civil penalties on those consideration of the private grazing land do not constitute authorization to graze. committing these prohibited acts. lease rate for each State, rather than an Paragraph (b)(9) would have been Sections 4170.1 and 4170.2 set forth the average of all States, is intended to amended to make it clear that the penalties, both civil and criminal, for reflect the value of the Federal forage permittee is responsible for controlling committing prohibited acts. involved in a more equitable and livestock so they do not stray on to Many commenters objected to efficient manner. After consideration of ‘‘closed to range’’ areas where grazing is including violations of State and private land lease rates in the western prohibited by local laws, such as Federal statutes related to water states, the Department has decided that formally designated agriculture districts pollution, wildlife protection, and other 35 percent of the difference between the or municipalities. To be consistent with matters, as prohibited acts. Some private grazing land lease rate in each the Forest Service this section would commenters asserted that this provision respective State and the Federal grazing have restored two provisions that exceeded the Secretary’s authority, and fee represents a reasonable balance that existed in this subpart prior to 1984. violated Section 302(c) of FLPMA (43 will allow the permittee or lessee to These provisions would have made U.S.C. 1732(c)). In particular, these cover costs that may arise from subject to penalty permittee or lessee commenters contended that FLPMA pasturing other livestock operators’ violations of the Wild and Free Roaming provides only for the revocation or cattle, will provide the government a Horse and Burro Act of 1971 and suspension of authorizations for the use, Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9947 occupancy, or development of public the types of violations and the three this provision affects Department of lands on the basis of violations of State conditions that must be met before a Agriculture or State agencies’ predator or Federal acts or regulations applicable violation of State, Federal, and local control activities. However, the to air or water quality. Furthermore, laws and regulations constitutes a Department has no authority to prevent these commenters asserted that Section prohibited act. This reorganization of human trespass on private lands. 302(c) of FLPMA provides for the the provisions from proposed §§ 4140.1 Trespass is governed under the State suspension, revocation, or cancellation and 4170.1–3 into final § 4140.1 laws in each State. of authorizations to use, occupy, or improves the clarity of the final rules by Stray livestock are a serious problem develop public lands only when eliminating cumbersome cross- on public lands. In addition to being an violations of terms and conditions occur references. unauthorized use of forage, stray on public lands in connection with the A number of commenters expressed livestock present hazards to vehicles exercise of rights and privileges of the concerns about procedural protection in and public land users, carry a potential use authorization. Others were connection with the imposition of to transfer disease from sick to healthy concerned that penalties would be penalties. Under this final rule, stock, disrupt other animals, and cause imposed for even de minimus enforcement of the penalty provisions is undesired breedings and unplanned violations. subject to the same Departmental appeal mixtures of livestock gene pools. Although Section 302(c) of FLPMA procedures as other types of appeals. It is the responsibility of the permittee contains specific references to Federal These procedures are detailed in to control his or her livestock. However, and State air and water quality regulations of the Department’s OHA, in evaluating violations, the authorized standards, its language is expansive. It Title 43 of the Code of Federal officer can consider factors beyond the allows enforcement of terms and Regulations, Part 4, Subpart B. These control of the permittee or lessee. For conditions, ‘‘including, but not limited provisions provide adequate procedural example, the authorized officer could to, terms and conditions requiring safeguards, set conventional burdens of consider the fact that a third party, compliance with regulations under Acts proof and provide fair enforcement of without any knowledge on the part of applicable to the public lands * * *.’’ the rules. Therefore, the Department has the permittee, had destroyed the The Department has concluded that not modified the rule language in permittee’s fence and as a result these provisions of FLPMA would response to these concerns. livestock had strayed from authorized encompass the activities prohibited in There was also considerable comment areas. In contrast, repeated incidents of § 4140.1 of this rule. Moreover, the about prohibited acts regarding transit apparently incidental strays could Department has concluded that good between public and private lands, signify a more serious problem of range stewardship of the public lands, as well trespass, straying, and gate closure. management. In such cases, the as the intent and specific language of Commenters expressed concern about authorized officer needs authority to FLPMA, are served by expanding the whether the provisions affected the penalize the permittee or lessee for the prohibited acts section to include ability of landowners to protect private problem. violations of State and Federal laws property or range improvements from Some commenters expressed the view related to natural resources, and that trespass and vandalism. Others were that conservation use should not be expanding the list of prohibited acts concerned that the provisions would exempted from the prohibition against provides the regulated community and affect Department of Agriculture or State failing to make substantial grazing use. the public with improved notice of the agency predator control activities. Commenters’ concerns about prohibited acts. Nothing in these rules prohibits conservation use are discussed The final rule as adopted provides landowners from protecting private elsewhere in this preamble, especially at penalties where violations are more property from trespass or vandalism, or § 4130.2. Failure to make substantial use than de minimus and concern, in a more prohibits the landowner from keeping is discussed at § 4170.1–2. than remote way, the use of the public their gates closed to protect private Some commenters asked whether the lands. The Department has addressed property. The final rule regarding gates rule prohibited alteration of stream commenters’ concerns that the is clarified by the addition of the words courses that might be needed as part of provisions should be restricted to ‘‘during periods of livestock use.’’ The the maintenance of improvements. The violations of terms and conditions that Department does not intend this proposed and final language indicates occur on public lands and in connection provision to apply to situations where that customary maintenance of with the exercise of rights and privileges gates are left open to give cattle access diversion points is an authorized of the use authorization by adding to to forage and water. Closing a gate and activity. Others were concerned about § 4140.1 the list of conditions formerly consequently denying cattle access to the provision specifying that attempted included under § 4170.1–3. Under needed forage or water could be covered payment by a check that is not honored § 4140.1(c) of this final rule, violations by the provisions in § 4140.1(a)(5). does not constitute a grazing of other State or Federal laws or Nothing in this rule is intended to authorization. In response, the language regulations will not constitute prevent legitimate use of gates to move at final § 4140.1(b)(9) has been revised prohibited acts unless public land and control livestock. The provision of to specify that payment with administered by BLM is involved or § 4140.1 relating to public access merely insufficiently funded checks on a affected, the violation is related to reiterates existing requirements. The repeated and willful basis is a grazing use authorized by a permit or intent of the provision is to prevent prohibited act. lease issued by BLM, and the permittee individuals from interfering with lawful Other commenters were concerned or lessee has been convicted or uses of the public lands. about the provisions on leasing and otherwise found to be in violation of The provisions in subpart 4140 apply subleasing. Nothing in this provision any of these laws or regulations by a to BLM’s administration of the grazing prohibits authorized leasing or court or by final determination of an program on the public lands, and subleasing. The final rule has been agency charged with the administration nothing in the subpart prevents the amended to clarify that only of these laws or regulations, and no landowner from placing signs on private unauthorized leasing or subleasing is a further appeals are outstanding. This property to prevent trespass and prohibited act. The Department consolidates in one section the list of destruction. Furthermore, nothing in understands that transactions that 9948 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations include the leasing or subleasing of base that this regulatory reform will improve where fees could be waived for property and pasturing agreements can the consistency of rangeland unintentional incidental trespasses in a be a necessary component of a grazing administration throughout the Bureau. fair manner. The authorized officer operation. However, the Department Consistency will be enhanced further could have made a nonmonetary also believes that it has a responsibility through additional information and settlement only under the following to ensure that sublessees are qualified training. conditions: the operator is not at fault, and will be good stewards, that It is not appropriate to limit liability an insignificant amount of forage is appropriate base property is available, to cases where violations are repeated consumed, no damage occurred, and and that livestock grazed pursuant to and willful, because in some cases a nonmonetary settlement is in the best pasturing agreements must be under the single violation can be considerably interest of the United States. The control of the permittee or lessee. damaging to the public lands. However, method for determining the settlement Subleasing will be permitted if the the final rules provide for nonmonetary amounts would have been amended to authorized officer determines the above settlement of nonwillful violations in base the value of forage on the monthly criteria are met. some cases. Similarly, the Department rate per AUM for pasturing livestock on In accordance with the above does not believe it is appropriate to private, nonirrigated land in each of the discussion, § 4140.1 of the proposed limit penalties to the cost of correcting 17 western States. Other proposed rule is adopted as final with the the problem. The availability of amendments would have reduced the exception of adding the conditions penalties is a common enforcement potential for abuse of discretion by formerly provided at § 4170.1–3 to mechanism that acts as a deterrent to clarifying when a nonmonetary § 4140.1, addition of the phrase violations and an incentive to comply. settlement for nonwillful violations may ‘‘repeated and willful’’ to paragraph In accordance with the above be made. (b)(9), and making minor edits for discussion, § 4150.1 is adopted as The Department received very few clarity. Comments on the provisions proposed. comments on this section. Nearly all commenters supported the basic proposed as § 4170.1–3 are discussed Section 4150.2 Notice and Order to also at that section. principle of nonmonetary settlement but Remove suggested alternatives for Subpart 4150—Unauthorized Grazing In the proposal, this section would implementation. Commenters also Use have been amended to grant the sought additional definition or Section 4150.1 Violations authorized officer authority to suggested that nonmonetary settlement determine if a nonwillful violation is should be excluded from the record to Under the proposal, this section incidental in nature, to outline a process prevent every violation from being would have been reorganized for clarity for doing so, and to clarify actions for appealed. and would have added the requirement expeditious resolution of these innocent The Department believes that the that the authorized officer shall or unintended trespasses. The ability to proposed conditions under which the determine whether a violation is close areas for a period of up to 12 nonmonetary settlement would be used nonwillful, willful, or repeated and months to specified class and kinds of are defined in sufficient detail and are willful. livestock for the sole purpose of abating appropriate. The specific circumstances The Department received a few unauthorized use was also proposed, as of each case vary greatly and will have comments on this section. Commenters was a provision that would have to be evaluated in view of the expressed concerns about the definition allowed such decisions to be effective conditions in the rules by the of violations and penalties to be upon issuance or on a specified date, authorized officer to make a imposed, and about the process to be and to remain in effect pending a determination of nonmonetary followed by the authorized officer in decision on an appeal. Reference to the settlement. making decisions about violations and agents of livestock owners would also The Department does not agree with penalties. A typical concern was the have been added to allow the authorized some commenters’ suggestions that investigation of violations. Related officer to notify an agent of a nonwillful nonmonetary settlements should be concerns included how the authorized and incidental violation. excluded from the record. The purpose officer would determine if a violation The Department received very few of the provision is to ease the had occurred. comments on this section, most of administrative burden for the agency Other comments included suggestions which related to the administrative and relieve the financial burden for the that violators not be held liable unless burden of pursuing incidental violations operator. While nonmonetary settlement violations were repeated and willful, and land closures. The Department may be appropriate under the terms of that damages should be limited to that agrees that pursuing violations for this rule, unauthorized use should be actually sustained, and that various incidental unauthorized use increases documented in the record. words be defined. the workload for BLM and has provided The Department has decided to revise The Department has decided not to for relief by making final the provision the provision of the proposed rule that adopt any specific definition for terms of the proposed rule that allows for would have based the settlement fee for that are legal standards and are not nonmonetary settlement of nonwillful unauthorized use on the average of unique to BLM rules. trespass under specific conditions. private grazing land lease rates in the 17 The rule adopted today requires that In accordance with the above western States as reported annually by BLM follow a fair, orderly process when discussion, the Department has adopted the Department of Agriculture’s investigating violations and assessing § 4150.2 as proposed except for minor National Agriculture Statistics Service. penalties. An appeal process is available changes to eliminate redundancy This provision would have provided for under subpart 4160 when the violator between § 4150.2 and § 4150.1. an unauthorized use settlement that believes the rules have been would have been uniform across all inappropriately interpreted. The Section 4150.3 Settlement public lands administered by BLM as Department acknowledges that in any Under the proposed rule this section well as western National Forest System regulatory program there is a potential would have been amended to provide lands. Also, the settlement fee would for inconsistent decisions, and intends guidelines for nonmonetary settlements have been based on the same data set Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9949 that would have been used to calculate process. Under the existing rules drought, fire, flood, insect infestation, or the forage value index included in the ‘‘affected interests’’ were notified of when continued grazing use poses an proposal to amend the grazing fee proposed decisions on permits and imminent likelihood of significant formula, which has not been carried leases. Today’s change provides for resource damage. There continues to be forward in this final rule. The notification to the ‘‘interested public.’’ a provision to consult with the affected Department has decided to base The Department expects that by permittees or lessees, the interested settlement of unauthorized use on the involving the interested public early in public, and the State having lands or average private grazing land lease rate, the decision making process on such responsible for managing resources reported annually by the National issues as permit issuance, renewal and within the area. The authorized officer Agriculture Statistics Service, for the modification, increasing and decreasing will have developed a record prior to individual State in which the permitted use, and development of taking action which will allow unauthorized use occurs rather than on activity plans and range improvement permittees and lessees, the interested an average across the 17 States. This programs, there will be fewer protests public, and the affected State the change will provide for a more fair and appeals because parties will have a opportunity to provide pertinent settlement across all affected States. better understanding of the final information and to discuss the impacts In accordance with the above decision and the factors considered in of adopting a final decision without a discussion, the proposed rule is adopted reaching the decision. The protest period. The changes being made as final except for the noted change determination of whether a person has preserve the rights of appeal and the from the average private grazing land ‘‘standing’’ to appeal a final decision of ability to seek a stay by those affected lease rate for all 17 western States to the the authorized officer has not been by BLM’s decisions. Clarifying the average private grazing land lease rate changed. Any person whose interest is existing provision and practice should for each individual State. ‘‘adversely affected’’ by a final decision not create uncertainty for lending of the authorized officer may appeal the institutions nor lower property values Subpart 4160—Administrative decision. The OHA determines if a party and thus the local tax base. Nor should Remedies is ‘‘adversely affected’’ and thus has it raise concerns with security of tenure Section 4160.1 Proposed Decisions standing to bring an appeal. The or remove incentives for settling Department did not adopt the appeals. The Department’s intent in The proposed rule would have suggestion to send decisions to only adopting this provision is to clarify that amended this section to provide affected public land users and parties the authorized officer does not have to clarification that a final decision may be showing a concrete and particular injury issue a proposed decision prior to a issued without first issuing a proposed from the decision since this would have final decision where the authorized decision when action under § 4110.3– the affect of limiting public officer has made a determination in 3(b) of this part is necessary to stop participation. accordance with §§ 4110.3–3(b) or resource damage, or when action is Comments were received on the 4150.2(d). taken under § 4150.2(d) to close an area proposed clarifying amendment to allow Other comments recommended a to unauthorized grazing use. It would the authorized officer to forgo issuance notification period for violations, sought have served to expedite the decision of a proposed decision prior to a final an expansion of the protest time period, process where immediate action is decision where the authorized officer and suggested a definition of repeated necessary and would have clarified has made a determination in accordance willful violations. The Department is what information must be contained in with § 4110.3–3(b) or § 4150.2(d). Some not adopting these suggestions because a proposed decision. The provision is comments were supportive of the existing early communication provides adopted as proposed. change. Others indicated that the sufficient notification and time for A number of comments objected to change was not needed because BLM protest. Regarding the willful violation the use of the term ‘‘interested public.’’ currently has the ability to place suggestion, the Department has Comments indicated a concern that the decisions in effect on issuance or on a concluded that it is more effective to use of the term broadens public date specified in the decision without retain discretion to consider each participation which may result in delays issuing a proposed decision. Other violation of the grazing rules due to administrative appeals and thus commenters asserted that the provision individually to determine the uncertainty for permittees. Comments raises procedural questions, does not appropriate action. questioned whether the ‘‘interested provide security of tenure, impacts Section 4160.3 Final Decisions public’’ would have an interest in the private and State lands, removes matter they appeal and whether the incentives to settle appeals, creates Under the proposed rule, this section ‘‘interested public’’ would automatically uncertainty for lending institutions, and would have been amended to clarify the have ‘‘standing’’ to challenge the final lowers property values and thus the process for filing an appeal and a decision of an authorized officer. One local tax base. petition for a stay of a final decision. commenter suggested that decisions The changes adopted today clarify Decisions would have been should be sent to affected public land that in the case of determinations under implemented at the end of a 30-day users, and any party showing a concrete § 4110.3–3(b) or § 4150.2(d), the appeal period except where a petition and particular injury from the decision. authorized officer does not have to first for stay has been filed with OHA, in The term ‘‘interested public’’ replaces issue a proposed decision. The which case OHA has, under § 4.21 of the term ‘‘affected interest’’ in the Department is making this change to this title, a period of 45 days from the existing rules. The definition of the term clarify what had been implicit in the end of the appeal period in which to ‘‘interested public,’’ adopted by today’s existing rules. This is consistent with decide on the petition for stay. A stay, action, appears at § 4100.0–5. One of the the interpretation in the existing BLM if granted, would have suspended the goals in adopting the changes to this Manual. effect of the decision pending final section is to clarify that the ‘‘interested These changes clarify that the disposition of the appeal. Under the public’’ will be notified of all proposed authorized officer may act quickly to present grazing administration appeals decisions in order to involve the public arrest damage to rangeland resources process, decisions other than those in an early stage of the decision making resulting from conditions such as pertaining to situations where 9950 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations immediate action was required are general appeals process to put decisions imminent damage to rangeland automatically stayed upon the timely in place in a timely manner unless OHA resources or to abate unauthorized use. filing of an appeal. grants a stay. The amendments adopted The amendments adopted today may The amendment also would have by today’s action preserve the ability to result in an increased number of stay clarified how the Departmental rule at file an administrative appeal and a petitions, but this is balanced by the § 4.21 would have been applied and the petition to stay a final decision. The stay benefits of making the grazing appeals amount of grazing use that would be provision allows OHA to determine if it process consistent with the general allowable when a decision has been is appropriate to stay all or a portion of Departmental process. stayed. Where an appellant had no a final decision. authorized grazing use the preceding The rule adopted today provides for Section 4160.4 Appeals year, the authorized grazing use would two separate mechanisms for the Under the proposed rule, this section have been required to be consistent with issuance and appeal of decisions: (1) would have provided instructions the decision pending a final Making decisions effective at the end of regarding the filing of appeals and determination on appeal. Appellants a 30-day appeal period and, if a petition petitions to stay decisions. When a final affected by this provision would have for stay is filed, upon any denial of the decision is issued, all parties whose included persons that are applicants for petition but not later than 75 days from interests have been adversely affected permit or lease transfers. Where a the date of the decision, or (2) making would have been able to file an appeal decision proposed to change the amount decisions effective upon issuance or on and a petition for stay of the decision of authorized grazing use, the permitted a date specified in the decision to stop within 30 days from the date of receipt grazing use would not have exceeded or prevent imminent damage to of a final decision, or 30 days from the the appellant’s previously determined resources, in accordance with the date a proposed decision becomes final permitted use during the time an appeal standards set forth in §§ 4110.3–3(b) and in the absence of a protest. Under the is pending. Reference to ephemeral use 4150.2(d). The first mechanism is process of § 4.21 of this title, the OHA would have been added to the expected to serve as the usual way in is allowed 45 days from the end of the amendments which would have which decisions will be made. Making appeal period to review the petition and pertained to levels of use pending decisions effective during the 30 day issue a determination. Under the determination on appeal. This appeal period will be reserved for proposal, a decision would not have amendment would also have provided situations where immediate action is been in effect during the consideration for making decisions effective upon needed to protect rangeland resources or of a petition for stay unless it were made issuance or on a date specified in the to abate unauthorized use, in effective for reasons under § 4110.3–3(b) decision when necessary to protect the accordance with the standards set forth or 4150.2(d). The provision would have rangeland resources or to facilitate herein. included a requirement for prompt abatement of unauthorized use by The rules governing the consideration transmittal by the authorized officer of closing an area to grazing use under of petitions to stay a decision pending appeals and petitions for stay to the §§ 4110.3–3 and 4150.2 of this part. appeal are provided at 43 CFR 4.21(b)(i) OHA. These provisions are being These provisions are being adopted as through (iv), and are not changed by this adopted as proposed. proposed, with minor changes to add rulemaking. The standards are (i) the Comments filed on this section references to annual rangeland and relative harm to the parties if the stay is suggested alternative time limits and OHA and to clarify that the proposed granted or denied; (ii) the likelihood of questioned if the amendments would term ‘‘previously permitted use’’ means the appellant’s success on the merits; encourage appeals by the interested ‘‘authorized use in the last year during (iii) the likelihood of immediate and public. Commenters also inquired which any use was authorized.’’ irreparable harm if the stay is not whether there should be a presumption Many comments addressed the granted; (iv) whether the public interest of grazing use when an applicant had no proposed change to conform the grazing favors granting the stay. As it does grazing use the preceding year. appeals process with the general currently, BLM will make available to The Department has not adopted the appeals provisions of the Department. involved persons the required suggestion that the time for appeal or Some comments supported the changes, components of an appeal and petition to OHA review of petitions for stay should while others reflected the same concern stay a decision at the time a final be expanded or limited. Past experience expressed in response to § 4160.1, decision is issued. A party will not have with the timing periods for appeals and above. Responses to those comments are to choose between a hearing or seeking stays has indicated that these timing not repeated here. a stay. A hearing before an requirements are reasonable. A Some commenters questioned if the administrative law judge will review the permittee or lessee will almost always change would provide sufficient facts associated with an appeal, while be aware of impending implementation procedural protections for the permittee OHA will consider stay petitions of a decision before the final decision is or lessee, and add to the number of stays consistent with the standards at 43 CFR issued. In addition, except for some sought from OHA. Other commenters 4.21(b)(1). cases that require that decisions be questioned the authorized officer’s In the case of decisions under placed in immediate effect, the discretion to make a decision effectively §§ 4110.3–3(b) and 4150.2(d), the permittee or lessee is provided with a immediately; whether stay provisions Department has concluded that the rule proposed decision, which may be would apply; whether the stay process and BLM Manual provide sufficient protested, at least 15 days before a final was in conflict with the factual hearing guidance to the authorized officer. For decision is issued. It is the Department’s process; and whether decisions should this reason, the Department has not intent in involving the interested public be placed in immediate effect only if adopted the suggestion to place at early stages to reduce the number of ‘‘required for the orderly administration decisions in effect immediately only if protests and appeals because all of the of the range or for the protection of ‘‘required for the orderly administration parties will have an understanding of other resource values.’’ of the range or the protection of other the factors considered in issuing a It is the Department’s intent in resource values.’’ As discussed above, decision. making the grazing appeals process the Department has concluded that this The Department has not adopted the consistent with the Department’s authority is needed to stop or prevent view that applicants without grazing use Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9951 the preceding year should not be discussed in this section apply administrative expenses. Experience in allowed to graze livestock at the levels specifically to unauthorized leasing and resolving cases of livestock trespass has allowed by a decision that is under subleasing. Leasing or subleasing shown a need for a gradient of penalties appeal. This provision is consistent agreements are oral or written that can be specific for certain with the basic concept of subpart 4160 contractual arrangements between nonwillful, willful, and repeated willful and 43 CFR 4.21 that the decision of the permittees or lessees and third parties, offenses. In the Department’s authorized officer will be put into effect even though the grazing privileges determination, unauthorized pasturing unless a stay is granted. The Department obtained by Federal permittees or or other unauthorized subleasing will intends that this concept apply lessees is not transferrable or assignable constitute a willful violation of the rules consistently throughout the rules without approval. Such arrangements pertaining to grazing and will be pertaining to livestock grazing. are willful actions. The authorized discouraged by the penalty of twice the officer must produce competent private rate plus administrative Subpart 4170—Penalties evidence to support a finding that the expenses. Should such violations be Section 4170.1–1 Penalty for permittee has in fact violated repeated, other enforcement Violations § 4140.1(a)(6). This section does not mechanisms are available. Others stated that the proposal does The proposed rule would have been alter the procedural rights of permittees not take into account use upon amended to provide for a penalty for under this part. It merely establishes the intermingled private land maintenance unauthorized leasing and subleasing in penalty for unauthorized grazing of livestock owned by persons other than of improvements, or suggested that the amount of two times the private the permittee or lessee or their sons and some sort of penalty should be available grazing land lease rate for the 17 daughters as provided in this part. It to the authorized officer to penalize a western States as supplied annually by does not apply to authorized base permittee, short of cancelling a permit. the National Agricultural Statistics property leases or subleases or Differing land ownership patterns could Service, plus all reasonable expenses authorized pasturing agreements. Other make these provisions more difficult to incurred by the United States in penalties set forth elsewhere in these enforce. However, the provisions detecting, investigating, and resolving rules do pertain to public land users adopted do provide for authorizing the violation. This penalty would have who enter public lands without grazing of public lands by livestock been more consistent with the penalties authorization and remove publicly- owned by persons other than the provided for unauthorized use and owned assets or damage public lands. permittee or lessee. Penalties for simpler to administer than the penalty Some commenters suggested that violations of the subleasing or pasturing provided in the existing rules. This payment of expenses should be limited provisions would be limited to the would have facilitated consistent to specific legal costs, and that payment public land forage AUMs consumed. application of the provisions by BLM. of salaries of Federal personnel should The authorized officer does have The Department has adopted the not be included. Others stated that none discretion to use lesser sanctions than provision as proposed, with minor of the statutes listed by BLM provide for permit cancellation when warranted. clarifying changes. The Department revocation of permits as a permissible Others asserted that the penalties received few comments on this section. penalty. The Secretary has adequate were not serious enough to be effective, Some suggested that penalties should be legal authority to provide for penalties and suggested that there should be a based on public land AUM values, not for such violations. The penalties debarment provision. The penalty private land values. Others stated that adopted in this section are fair and established in the final rule is intended the rate suggested in the proposal was consistent with other similar programs, to serve as a strong deterrent to punitive. The concept of assessing and contribute to BLM’s effective unauthorized pasturing of livestock penalties upon ‘‘value of forage’’ enforcement of the grazing program. owned by other than permittees, lessees, removed is not new. Under PRIA and Pricing Federal forage at market rates or their sons or daughters. Setting the the existing Federal grazing fee formula can be a very effective deterrent to the penalty at two times the private grazing (from 1985 to present), BLM has use of unauthorized grazing of livestock land lease rate plus administrative assessed penalties for unauthorized use owned by persons other than the expenses will ensure that there is no on that basis. permittee or lessee except for sons and financial impetus for committing such a Others stated that using twice the daughters of permittees and lessees. violation, i.e. an effective penalty must average private rate of all 17 states A typical comment discussed the fact result in a cost greater than the reward. would be a bargain in some cases, or that the proposal imposes the same The provisions adopted today ensure that BLM should use the private rate for penalty for unauthorized subleasing as this by using the private land rate, each area. The Department agrees that for willful trespass, and suggested that which in itself should generally exceed the private rate for each State should be this was excessive since the livestock the cost of public land forage, and then used to calculate the fee. The final involved with the subleasing were doubling that figure. Administrative language of the rule is revised to clarify probably included in an existing costs to be added to the penalty merely this point. authorized permit and therefore a serve as a further disincentive to violate Some commenters stated that permittee subject to a penalty for the provision and highlight the violations should not be penalized subleasing would have paid the grazing expenses to the public that result from unless they were willful. One common fee for authorized use plus the penalty. the detection and resolution of comment suggested that penalties The Department believes that violations of the provisions. should apply to other public land users, individuals who have violated the In accordance with the above not just grazing permittees. Others subleasing provisions should be discussion, the Department has decided suggested that the authorized officer penalized to the same extent as those to adopt the provision as proposed, with should have the authority to cancel a who have trespassed. In some cases, a few changes. The phrase ‘‘for the 17 lease or permit, but not be required to trespass violations determined to be western States’’ is revised to ‘‘in each do so. repeated and willful will result in a State’’ and is moved to modify the Regarding commenters’ concerns penalty of three times the private phrase ‘‘required to pay’’ to provide a about willful violations, the penalties grazing land lease rate, plus penalty that is tied to the private land 9952 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations lease rate in each individual State. This Conservation use is an active use, and situation extends into the second year, responds to commenters’ suggestions therefore provisions regarding failure to then BLM will consider cancelling and makes the penalty more use do not apply. Issues regarding whatever amount of permitted use the proportionate to the benefit received conservation use are discussed at permittee or lessee has failed to use, as from the unauthorized use. § 4130.2. provided in this section of the final rule. Some comments asserted there should Regarding specific requests for Section 4170.1–2 Failure To Use be no penalty for using a permit less definitions, the Department believes the This section would have been than the permitted use, and that fees use of the term ‘‘substantial use’’ is amended to clarify the consultation collected should be based on actual sufficient without definition for requirements imposed on BLM when an AUMs used. Others asserted that the purposes of national rules. The meaning authorized officer is considering taking proposed changes eliminate any of the word ‘‘substantial’’ in a legal action to cancel, in whole or in part, a incentive on the part of BLM to reach context has been well-established in the permit or lease in response to failure to an agreement with the permittee, and courts. use. This section also would have suggested limiting cancellation to In accordance with the above clarified that failure to make substantial situations where the permittee or lessee discussion, the Department has decided grazing use as authorized means failure has failed to maintain use without to adopt the substance of the provision to make active grazing use as approved reason, has unreasonably failed to as proposed, with editorial changes for on a grazing use authorization. Failure maintain or use base property or to clarity. The language in the final section to make authorized use may result in install or maintain range improvements. is rewritten to clarify the meaning of the monitoring studies providing false There is no penalty for using less than ‘‘2 consecutive grazing fee years’’ information which can cause decisions permitted use provided that the provision. to over-obligate the forage resource of authorized officer has approved either Section 4170.1–3 Federal or State the rangeland. temporary nonuse or conservation use. Animal Control and Environmental Permittees and lessees would have The Department does not believe that Protection or Resource Conservation been required to apply and receive the provisions will be a disincentive to Regulations or Laws approval for nonuse or conservation reach an agreement. The provision does use. Failure to apply for conservation not displace the cooperative processes The proposed rule would have use or nonuse prevents BLM from set out in FLPMA, as amended by PRIA. amended this section to make subject to having an opportunity to determine if Parties to be consulted are limited to penalty under § 4170.1–1 violations of conservation use or nonuse is in permittees and lessees because any Federal or State regulations or laws that conformance with the rules at 43 CFR action taken in response to failure to are listed as prohibited acts under 4130.2(g) and applicable planning make use will be a ministerial action § 4140.1 and that pertain to predator documents. addressing a requirement of the rule and animal and pest control, wild free- The proposal would also have permit or lease. roaming horses and burros, natural and included failure to maintain or use Other commenters asked what cultural resources, resource water base property in the grazing ‘‘failure to maintain or use water-based conservation, or the environment. The operation as a type of failure to use. property in the grazing operations for heading of this section would have been Providing for the use of such waters is two consecutive grazing fee years’’ amended to reflect the change in scope. critical to the effective administration of meant. ‘‘Failure to maintain or use These changes were proposed to grazing within an allotment. Water water-based property. . . for two conform with similar amendments in property is crucial to the proper use and consecutive grazing fee years’’ means § 4140. The types of violations that may operation of livestock grazing in water that the permittee has not had cattle on result in the withholding, suspension or base areas. If base property waters are the range for two consecutive years, has cancellation of a permit or lease under not kept in serviceable condition, not allowed livestock to use the base § 4170.1–1(a) would have been livestock are forced to overuse the water, has neglected to conduct expanded to include violations of service areas of the remaining waters. necessary repair and maintenance regulations and laws that pertain to the BLM received very few comments on activities of the base water for two protection of the environment and this section. The Department has consecutive years, or a combination of conservation of natural and cultural decided to adopt the substance of the these three. In response to the resources where public lands are provision as proposed, with editorial commenters’ concerns, the final rule as involved or affected, the violation is changes for clarity. The most common adopted is revised to clarify this point. related to grazing use authorized by the issue raised was what readers viewed as One commenter stated that the permit or lease, and the permittee or an exemption from the ‘‘substantial use’’ provision assumes the permittee has the lessee has been found to be in violation provisions for conservation use. Some funds to purchase livestock or maintain by the relevant court or other authority commenters who specifically supported base property. The commenter was and no appeals are outstanding. cancellation for non-use objected to the concerned that if the permittee could Principal users of the rangelands should exemption for conservation use. Others not get funding, BLM might place a lien be expected to comply with such laws stated this was a double standard, and on the permittee’s base property, thus and regulations. The proposed that it made no difference to the reducing its collateral value. The amendments would have adopted resource if someone with grazing use Department does assume that the language of the grazing administration simply did not use the permit or if permittee has the funds necessary to regulations that existed before 1984. someone had conservation use. Still maintain a grazing operation, including Today’s action adopts the provision others stated that permittees with the purchase or lease of livestock and with minor clarifying changes, and also conservation use should be subject to the maintenance of base water facilities. moves the entire provision to § 4140.1(c) the cancellation provisions for failure to The BLM will not place liens on base for clarity. maintain or use water base property. property. If a permittee cannot afford to Commenters on this section were The Department disagrees that make use of, or maintain, base water in strongly divided on its provisions. Some conservation use is an exemption from any one year, there will be no penalty asserted, as they had on § 4140.1 of the the substantial use standard. under thus provision. However, if the proposal, that inclusion of other statutes Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9953 in the penalty provisions of the grazing penalties affecting the grazing permit or alternative fines provisions of Title 18 program was outside the Secretary’s lease under this provision. However, the U.S.C. section 3571, which was enacted legal authority, which they asserted rule as adopted will not affect how after enactment of FLPMA. This action applies only to public lands governed violations of State or Federal law or would have strengthened the protection by a grazing permit. Others asserted that regulations are dealt with initially by of natural or cultural resources under the provisions placed too much the various enforcement or regulatory the grazing program. Other language emphasis on other values, that under agencies. changes consistent with similar changes this program only grazing values should Others stated that the provisions were to § 4170.2–1 regarding willful be considered. too narrow, and should apply to commission of acts prohibited under Section 2 of TGA directs the additional statutes addressing natural § 4140.1(b) would also have been made. Department to preserve public resource protection. One specific The Department received very few rangeland and its resources from suggestion was the American Indian comments on this section. The major destruction or unnecessary injury and to Religious Freedom Act. Some of these theme of the comments was that the provide for the orderly use, commenters suggested that penalties for establishment of civil and criminal improvement, and development of the violation be nondiscretionary. Other sanctions are outside the authority of range to ensure that the public grazing comments suggested omitting paragraph the Secretary, but rather are within the lands are administered in a reasonable (c) altogether on the basis that there is exclusive jurisdiction of the legislature. and orderly fashion. The Department no legal argument to support such a The Department disagrees that the believes that the language of this section limitation on the Department’s provisions of this section are outside the represents a reasonable and practical responsibility under FLPMA and TGA authority of the Secretary. The Secretary balance between those responsibilities to promulgate and enforce its own has full authority to enforce provisions and limitations placed on it by resource regulations. of FLPMA, TGA and other statutes, and and other practical considerations. As stated in the preamble to the has authority to promulgate rules to The Secretary has full authority to proposed rule, a list of relevant laws implement FLPMA and other statutes establish terms and conditions for will be made available to grazing pertaining to public lands (43 U.S.C. grazing permits to ensure compliance permittees and lessees. No State or 1740). Section 4170.2–2 establishes the with the laws affecting public lands. Federal statutes were added to the list penalty provision for criminal acts. Consideration of natural and cultural presented in the preamble to the resource values is fully consistent with Subpart 4180 Fundamentals of proposed rule. Rangeland Health and Standards and the Department’s responsibility for In accordance with the above Guidelines for Grazing Administration multiple resource management under its discussion, the Department has decided (Titled ‘‘National Requirements and statutory authorities. The Department to retain the substance of § 4170.1–3, as Standards and Guidelines for Grazing cannot condone violations of other proposed. However, in response to Administration’’ In Proposed Rule) statutes and expects that principal users comments on §§ 4140.1 and 4170.3, the of public lands, such as grazing Department has moved the entire Under the proposed rule, this subpart permittees, will comply with these section establishing conditions limiting would have been added to establish statutes in the conduct of their when violations of certain laws and national requirements for the activities. These related statutes do have regulations would constitute prohibited administration of grazing on public separate enforcement provisions that acts for the purposes of grazing lands. It would also have included a would be unaffected by this rule. administration to § 4140.1(c). This provision for the development of State However, as discussed at § 4140.1, there change from the proposed rule is or regional standards and guidelines for are limitations placed on the Secretary’s intended to clarify the provision by grazing administration. These authority to impose penalties for removing cumbersome cross-references requirements, standards, and guidelines violations under other laws. These and by consolidating discussions of were proposed to establish clear limitations are that public land prohibited acts. Further discussion of direction for managing rangelands in a administered by the Bureau of Land this provision can be found at that manner that would achieve or maintain Management must be involved or section. ecological health, including the affected, the violation must be related to protection of habitats of threatened or grazing use authorized by a permit or Section 4170.2–1 Penal Provisions endangered species and candidate lease, and the permittee or lessee must Under the Taylor Grazing Act species, and the protection of water be convicted or otherwise found to be in Under the proposal, this section quality. violation of any of these laws or would have clarified a confusing The heading of the subpart is regulations by a court or by final existing statement by rewriting the modified from the proposed rule, as determination of an agency charged provision to state that any person who noted above. with the administration of these laws or willfully commits an act prohibited Section 4180.1 Fundamentals of regulations, with no further appeals under § 4140.1(b), or who willfully Rangeland Health (Titled ‘‘National outstanding. violates approved special rules and Some commenters asked whether Requirements for Grazing regulations, is punishable by a fine of Administration’’ In Proposed Rule) lesser violations of State laws would be not more than $500, under the penal cause for loss of a permit, or suggested provisions of TGA. Under the proposed rule, this new that only repeated, willful violations The Department received no section would have established national should be penalized. Others asserted comments on this section, and it is requirements for grazing administration that paragraph (c) should be amended to finalized as proposed. on public rangelands. Permits, leases, limit the provision to penalizing other grazing authorizations and grazing violations resulting from court Section 4170.2–2 Penal Provisions related plans and activities on public decisions. Under the Federal Land Policy and lands would have incorporated, as The Department does not intend that Management Act applicable, grazing practices that help de minimis violations of State or even The proposed rule would have achieve healthy, properly functioning Federal laws or regulations will result in amended this section to adopt the ecosystems and riparian systems. All 9954 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations grazing-related actions on public lands standards and guidelines will be ‘‘takings’’ are discussed in the General would have been required to conform developed, under the umbrella of the Comments section. with the national requirements. Where fundamentals, to provide specific In accordance with the above the national requirements were not measures of rangeland health and to discussion, the Department has decided being met, the authorized officer would identify acceptable or best management to adopt the substance of the provision have been required to take corrective practices in keeping with the as proposed with reordering and action prior to the start of the next characteristics of a State or region such modifications for clarity, adding grazing season. This would have as climate and landform. State or wording that requires significant included actions such as reducing regional standards and guidelines will progress toward meeting the livestock stocking rates, adjusting the provide the measures and guidance fundamentals, and rewording to season or duration of livestock use, or needed to develop terms and conditions incorporate more fully a watershed modifying or relocating range of permits, leases, and other management approach. improvements. Nothing in the national authorizations, AMPs and other activity Section 4180.2 Standards and requirements relating to riparian plans, cooperative range improvement Guidelines for Grazing Administration systems was to be construed to create a agreements and to issue range water right based on Federal law. The improvement permits in a manner that Under the proposed rule, this new national requirements presented in the will result in maintaining or making section would have established the proposed rule have been retitled significant progress toward healthy, requirements for the development of ‘‘fundamentals of rangeland health’’ to functional rangelands. standards and guidelines for grazing administration on public lands, and better reflect the Department’s view that The focus on the fundamental guiding principles for their they represent the basic components of requirements of healthy rangelands does development. All grazing related actions healthy rangelands. These components not discount the role played by within the affected area would have will be referred to as the ‘‘fundamentals herbivores. Applying the principles of been required to conform with the of rangeland health’’ in the discussion ecosystem management to grazing appropriate standards and guidelines. below. administration requires consideration of The Department received many The geographical area to be covered by herbivores, both wild and domestic. The the standards and guidelines to be comments on this section. Comments historical role of herbivores is discussed suggested that establishing developed pursuant to this section were in some detail in the FEIS on this rule. to be determined by the BLM State fundamentals that were unique to The intent in adopting this section is grazing administration discriminated Director. Standards and guidelines to facilitate compliance with relevant against public land livestock operators would have been required to be requirements of Acts such as the ESA and questioned the statutory authority developed for an entire State, or for an and the Clean Water Act and to ensure of the Secretary to promulgate such ecoregion including portions of more functional rangelands in order to provisions. Other comments expressed than one State, except where the improve ecological conditions while the view that the provisions were too geophysical or vegetal character of an providing for sustainable development. lax; still others asserted that the section area is unique and the health of the The Department does not agree with discounted the role that herbivores have rangelands could not be ensured by some commenters who asserted that the played in the history of the public using standards and guidelines fundamentals would exceed the rangelands and would create problems developed for a larger geographical area. and complexities in BLM grazing requirements of the relevant statutes. The preparation of standards and program due to the variation in The fundamentals, along with State or guidelines would have involved standards and guidelines. regional standards and guidelines, will consultation with multiple resource It is the Department’s intent to be used to establish management advisory councils, coordination with establish through the fundamentals of practices that are appropriate for the Indian tribes, and Federal agencies rangeland health and the applicable particular region that lead toward or responsible for the management of lands standards and guidelines appropriate maintain healthy, sustainable within the affected area. Public grazing practices to help ensure rangelands and provide security of participation would have included the productive rangelands. These tenure for permittees and lessees. involvement of the interested public. fundamentals will guide BLM in the Regarding comments that the section The proposed rule would have development of plans for public lands creates complexities and problems for established guiding principles to be and in the authorization of grazing- BLM’s grazing program due to State or addressed in the development of related activities, consistent with the regional variations, the Department has standards and guidelines. The guiding provisions of FLPMA and TGA, that concluded that such variation is principles for standards to be developed lead toward or maintain healthy, necessary to address the specific were to have pertained to the minimum sustainable rangelands. It is not unusual conditions present within individual soil, water and biological conditions for BLM programs to have unique areas. The fundamentals, however, required for rangeland ecosystem requirements that pertain to a particular provide the basic components of healthy health. All standards for grazing group of activities on the public lands, rangelands that will apply to all States administration would have been for example the Onshore Orders and regions (exclusive of Alaska). These required to address factors relating to regulating portions of the oil and gas overarching principles will be soil stability and watershed function, program. supplemented by standards and the distribution of nutrients and energy, The fundamentals are statements of guidelines that will be tailored to more and the recovery mechanisms of plant the conditions that are representative of local conditions. communities and riparian functioning healthy rangelands across the West, and, Finally, some commenters also conditions. The guiding principles for as such, are relatively broad as pointed asserted that the fundamentals of the development of guidelines for out in some comments. The rangeland health and the standards and grazing administration were to have fundamentals establish the guidelines would result in a ‘‘taking’’ if pertained to the types of management Department’s policy of managing for grazing use was modified as a result of actions necessary to ensure that the healthy rangelands. State or regional this section. Issues associated with standards could be met. Included in Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9955 these guiding principles were the received that questioned the efficacy of general because they are intended to be requirements that State or regional the standards and guidelines while applicable wherever State or regional guidelines address grazing practices that some felt the standards and guidelines standards and guidelines have not been can be implemented to benefit were too strict and would harm put into effect within 18 months of the threatened or endangered species and livestock operations. Finally, a few effective date of this final rule. The candidate species, and to maintain, commenters questioned the intent and fallback provisions cannot be as specific restore or enhance water quality; critical wording of individual guiding or detailed as State or regional standards periods of plant growth or regrowth and principles and fallback standards and and guidelines that will be tailored to the need for rest from livestock grazing; guidelines. the conditions and needs of each State situations in which continuous season- The Department recognizes the need or region. long grazing, or use of ephemeral for an effective partnership with Concerning the comment that the rangelands, could be authorized; the livestock operators and will continue to standards and guidelines should be allowable types and location of certain work closely with them. The developed through the land-use range improvements and management Department has also concluded that planning process, State or regional practices; and utilization or residual public land management in general will standards or guidelines that are vegetation limits. be improved by providing for a more inconsistent with existing land use The proposed rule would have inclusive partnership which extends to plans will be analyzed in land use plan provided that where State or regional RACs, the interested public, and State amendments. Management decisions standards and guidelines were not and local government. The RACs, the such as resource condition objectives, developed within 18 months after the interested public and the public in thresholds, stipulations, and terms and effective date of the proposed rule, general will be involved in the conditions of BLM use authorizations fallback standards and guidelines development of the standards and that have been or are developed for included in the text of the rule would guidelines. RAC members will have a purposes other than State or regional be implemented. The fallback standards variety of qualifications that will standards and guidelines for grazing addressed the same factors relating to contribute to the standards and administration are not subject to the soil stability and watershed function, guidelines development process. provisions of developing and approving the distribution of nutrients and energy, Grazing permittees and lessees will be standards or guidelines presented in the recovery mechanisms of plant represented on the RACs and will have § 4180.2. For example, an AMP decision communities, and riparian functioning a variety of opportunities to provide that livestock use should not exceed a condition as provided for under the input to BLM through the RACs and specified level of usage would not guiding principles. The fallback public forums during the development constitute a standard that would be guidelines addressed the grazing of State or regional standards and subject to the provisions of § 4180.2, but management practices that would be guidelines. The RACs and their would remain as an AMP decision. acceptable across a broad variety of subgroups will be able to provide However, the Department expects that rangelands. Both the proposed fallback technical advice in a manner similar to the merits of officially adopting existing standards and fallback guidelines were the former grazing advisory boards, land use plan and other management general in order to be applicable to most while at the same time representing a decisions as State or regional standards western rangelands. broader array of interests. For further or guidelines will be considered and As with the previous section, some discussion of member qualifications and that many proven practices will serve as commenters questioned whether the experience, see section-by-section the basis for State or regional standards provisions for standards and guidelines analysis of subpart 1780. or guidelines. were discriminatory and whether they The Department has concluded that The fundamentals of rangeland exceeded the requirements of numerous the 18-month time frame for health, guiding principles for standards statutes. These comments were development of the State or regional and the fallback standards address addressed above under the discussion of standards and guidelines will provide ecological components that are affected § 4180.1. Some commenters expressed adequate time to develop appropriate by all uses of public rangelands, not just views that the standards and guidelines standards and guidelines for several livestock grazing. However, the scope of should be developed in coordination, reasons. First, the standards and this final rule, and therefore the cooperation and consultation with guidelines build off of current range fundamentals of rangeland health of permittees, that local grazing advisory science, existing policies and land-use § 4180.1, and the standards and boards should be retained and involved, planning decisions concerning grazing guidelines to be made effective under and that local and county government activities. Second, it is anticipated that § 4180.2, are limited to grazing should be consulted. Some commenters any additional NEPA analysis that may administration. Under this final rule, questioned the expertise of the RACs to be needed can be tiered from the FEIS actions are to be taken by the authorized develop standards and guidelines and for this rule and incorporate analyses of officer upon determining that grazing questioned why the interested public other NEPA documents. The management practices and levels of use and the public in general is included in Department believes that an 18-month on public lands are significant factors in the development process. period is necessary to allow opportunity preventing achievement of the standards Some commenters asserted that the to consider local needs and concerns. In and conformance with the guidelines. 18-month development period is too the long term, the Department believes Application of the principles contained short and that the fallback provisions that a development process that in subpart 4180 to uses of public should be eliminated. Others questioned considers local circumstances along rangelands other than authorized whether there should be any waiting with national priorities will produce grazing activities would require separate period before the fallback standards and superior standards and guidelines. action by BLM or the Department. guidelines come into effect. The fallback standards and guidelines Some commenters questioned how Some commenters asserted that the are intended to provide protection the PACFISH standards and guidelines standards and guidelines should be should the development of the State or affect the standards and guidelines developed through the land-use regional standards take longer than developed in this section. The planning process. Comments were anticipated. The fallbacks are relatively Department recognizes that 9956 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations coordination between the PACFISH allotments. The Department intends that require an upward trend in soil and effort and BLM range program is failing to comply with a standard in an vegetation. essential. The Rangeland Reform ’94 EIS isolated area would not necessarily The Department agrees that the A- considered cumulative impacts of result in corrective action. horizon requirement would not serve as PACFISH and rangeland reform. The Department recognizes that it will a useful standard on some BLM- Nothing in subpart 4180 is intended to sometimes be a long-term process to administered lands since some affect special planning efforts such as restore some rangelands to properly naturally-occurring soil structures do those related to anadromous fish habitat functioning condition. The Department not conform to this requirement. The (PACFISH) or the Upper Columbia River intends that the standards and standard that referenced ‘‘A’’ soil Basin EIS. These are separate efforts that guidelines will result in a balance of horizons has not been carried forward in will be coordinated, as appropriate, sustainable development and multiple this final rule. Comments suggesting the with activities under subpart 4180. use along with progress towards addition of suitability determinations Concerning the comment that the attaining healthy, properly functioning have been addressed in the section-by- standard and guideline provisions are rangelands. For that reason, wording has section analysis for § 4130.2. This final too strict and will drive livestock been adopted in this final rule that will rule does not add a requirement for operators out of business, the guiding require the authorized officer to take suitability determinations. The principles for the State or regional appropriate action upon determining Department has decided not to add standards and guidelines are designed that existing grazing management more detailed guidance pertaining to to allow State and regional issues to be practices are failing to ensure significant water quality or riparian areas but the considered while still resulting in progress toward the fulfillment of the wording of the guiding principles and significant progress toward established standards and toward conformance with fallbacks has been modified from that of goals. Specific quantitative assessment the guidelines. the proposed rule to provide greater methods for the listed items were not Also, the Department recognizes that focus on watershed function. The proposed because the Department it is not possible to complete all Department intends that more specific believes specific assessment assessments of rangeland health and to provisions will be considered in the methodologies should be chosen in light take appropriate corrective action, development of State or regional of more site-specific considerations. pursuant to § 4180.2(c) of this final rule, standards and guidelines following The guiding principles for standards immediately upon completion of the consideration of public input and the and guidelines require that State or site-specific characteristics of the public State or regional standards and regional standards and guidelines rangelands. The concern that grazing guidelines or upon the fallbacks taking address the basic components of healthy use not be allowed to exceed the effect. The Department intends that rangelands. The Department believes livestock carrying capacity is dealt with assessments and corrective actions will that by implementing grazing-related in §§ 4110.2–2 and 4110.3 of this final be undertaken in priority order as actions that are consistent with the rule. The suggestion that public determined by BLM. fundamentals of § 4180.1 and the rangelands be required to exhibit an guiding principles of § 4180.2, the long- In some areas, it may take many years upward trend in condition is adopted, term health of public rangelands can be to achieve healthy rangelands, as in part, through the addition of the ensured. The fallback standards and evidenced by the fundamentals, requirement that action be taken to guidelines will also lead to improved established standards, and guidelines. ensure significant progress toward the rangeland health, but the fallbacks do The Department recognizes that, in fulfillment of the standards and toward not provide the same opportunities for some cases, trends may be hard to even conformance with the guidelines when tailoring to meet more-local resource document in the first year. The the authorized officer determines that conditions and livestock management Department will use a variety of data grazing management practices or levels practices. including monitoring records, of use are significant factors in failing to Standards and guidelines will be assessments, and knowledge of the meet the standards or conform with the implemented through terms and locale to assist in making the guidelines. conditions of grazing permits, leases, ‘‘significant progress’’ determination. It References to meeting the minimum and other authorizations, grazing-related is anticipated that in many cases it will requirements of the ESA and State water portions of activity plans (including take numerous grazing seasons to quality standards have been removed AMPs), and through range determine direction and magnitude of from the fallback standards and improvement-related activities. The trend. However, actions will be taken to guidelines. Both ESA requirements and Department anticipates that in most establish significant progress toward water quality standards are included in cases the standards and guidelines conformance as soon as sufficient data the fundamentals presented in § 4180.1 themselves will not be terms and are available to make informed changes of this final rule and, therefore, do not conditions of various authorizations but in grazing practices. need to be restated in the fallbacks. The that the terms and conditions will Many commenters had suggestions or fallback guidelines retain reference to reflect the standards and guidelines. For concerns specific to one or more of the promoting the restoration and example, a standard for maintaining guiding principles or fallback standards maintenance of habitats of special status water quality may be implemented via or guidelines. Commenters asserted the species, to make clear that it is the a condition of a permit that livestock requirement pertaining to A-horizon Department’s intent to take reasonable will not be allowed to occupy specified soils was unrealistic, that suitability measures to interrupt the decline of riparian areas during a certain time of determinations need to be addressed, such habitats. year. In assessing the health of and that greater specificity should be References to minimum ESA rangelands to determine whether action provided for water quality and the requirements and State water quality of the authorized officer is necessary, protection of riparian areas. standards have been retained in the the BLM will generally consider the Commenters also stated that the guiding principles for the development extent to which standards are being met standards and guidelines should of State or regional standards and and guidelines followed across the area include a prohibition on exceeding the guidelines. The Department intends of a grazing allotment or group of livestock-carrying capacity and should that, as State or regional standards and Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9957 guidelines are developed, more specific 2(d) of that Order are attached to the response, clearance number 1004–0051 and useful application of ESA certification and included in the is estimated to average 0.3 hours per requirements and water quality administrative record of this rule. response, and clearance number 1004– standards can be made. For instance, 0068 is estimated to average 0.17 hours Regulatory Flexibility Act habitat requirements may be presented per response, including the time for in measurable terms or tied to specific The Department has determined that reviewing instructions, searching areas within the State or region. this final rule will not have a significant existing data sources, gathering and In accordance with the above economic impact on a substantial maintaining the data needed, and discussion, the Department has decided number of small entities under the completing and reviewing the collection to adopt the provision as proposed with Regulatory Flexibility Act (5 U.S.C. 601 of information. Send comments the exception of modifications for et seq.). A final regulatory flexibility regarding this burden estimate or any clarity, consolidation and reordering of analysis has been prepared and may be other aspect of these collections of paragraphs, clarifying the concept of requested from the following address: information, including suggestions for upward trend by adding the Bureau of Land Management, U.S. reducing the burden to the Information requirement for making ‘‘significant Department of the Interior, Room 5555, Collection Clearance Officer (873), progress’’ toward fulfilling the standards Main Interior Building, 1849 C Street Bureau of Land Management, and toward conforming with the NW, Washington, DC 20240. The final Washington, DC 20240, and the Office guidelines, removal from the fallbacks rule will not change costs to industry or of Management and Budget, Paperwork the redundant reference to ESA to the Federal, State, or local Reduction Project, 1004–0005, –0019, requirements and State water quality governments. Furthermore, the rule –0020, –0041, –0047, –0051, or –0068, standards, and to incorporate more fully produces no adverse effects on Washington, DC 20503. a watershed management approach and competition, employment, investment, Author current science consistent with productivity, innovation, or the ability rangeland health goals. of United States enterprises to compete The principal authors of this final rule with foreign-based enterprises in VI. Procedural Matters are Annetta L. Cheek and Charles Hunt, domestic or export markets. Regulatory Management Team, with the NEPA Executive Order 12866 assistance of many other staff members of the Bureau of Land Management, U.S. The BLM analyzed the impacts of This final rule has been reviewed Department of the Interior, 1849 C St. these final rules in its ‘‘Rangeland under Executive Order 12866. Reform ’94: Final Environmental Impact NW., Washington, DC 20240. Executive Order 12630 Statement,’’ in accordance with section List of Subjects 102(2)(C) of the NEPA of 1969 (42 This rule has been reviewed under U.S.C. 4332(c)(C)). Executive Order 12630, the Attorney 43 CFR Part 4 A Record of Decision for the EIS for General Guidelines, Department Administrative practice and Rangeland Reform ’94 was issued on Guidelines, and the Attorney General procedure, Civil rights, Claims, Equal February 13, 1995. The Department’s Supplemental Guidelines to determine access to justice, Government contracts, decision is represented in the rule the takings implications of the proposed Grazing lands, Indians, Interior adopted today. The ROD departs from rule if it were promulgated as currently Department, Lawyers, Mines, Penalties, the preferred alternative in the FEIS in drafted. Because the relevant statutes Public lands, Surface mining. that it retains the existing grazing fee and rules governing grazing on Federal formula, identified as the PRIA (No land and case law interpreting said 43 CFR Part 1780 Action) alternative, and makes minor statutes and rules have consistently Administrative practice and modifications to the Preferred recognized grazing on Federal land as a procedure, Advisory committees, Land Management alternative. Changes made revocable license and not a property Management Bureau, Public lands. from the Preferred Management interest, it has been determined that this alternative of the FEIS, and adoption of final rule does not present a risk of a 43 CFR Part 4100 the No Action Fee alternative, which are taking. represented in the Record of Decision Administrative practice and and this final rule, were found to be Paperwork Reduction Act procedure, Grazing lands, Livestock, within the range of alternatives The collections of information Penalties, Range management, Reporting considered in the FEIS. Also, these contained in this rule have been and record keeping requirements. changes were found not to affect the approved by OMB under 44 U.S.C. For the reasons stated in the preamble analysis of environmental consequences 3501, et seq. and assigned clearance and under the authority of the FACA (5 presented in the FEIS. numbers: 1004–0005, 1004–0019, 1004– U.S.C. Appendix), section 2 of the 0020, 1004–0041, 1004–0047, 1004– Reorganization Plan No. 3 of 1950 (5 Executive Order 12778: Civil Justice 0051, and 1004–0068. U.S.C. Appendix, as amended; 64 Stat. Reform Certification Public reporting burden for the 1262), the TGA of 1934 (43 U.S.C. 315, This rule has been reviewed under the information collections are as follows: 315a–r), the Oregon and California applicable standards of Executive Order Clearance number 1004–0005 is Railroad and Coos Bay Wagon Road 12778, Civil Justice Reform (56 FR estimated to average 0.33 hours per Grant Lands Act of 1937 (43 U.S.C. 55195). The requirements of the response, clearance number 1004–0019 1181d), and the FLPMA of 1976 (43 Executive Order are covered by the is estimated to average 0.33 hours per U.S.C. 1739, 1740), part 4 of subtitle A preamble discussion of this rule. The response, clearance number 1004–0020 of title 43, and part 1780, group 1700, Department certifies that this rule meets is estimated to average 0.33 hours per subchapter A, and part 4100, group the applicable standards provided in response, clearance number 1004–0041 4100, subchapter D, of subtitle B of Section 2(a) and 2(b)(2) of that Order. is estimated to average 0.25 hours per chapter II of title 43 of the Code of Where applicable, the recommendations response, clearance number 1004–0047 Federal Regulations are amended as set and analyses required under Section is estimated to average 0.25 hours per forth below: 9958 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations PART 4ÐDEPARTMENT HEARINGS 7. Section 1784.2–2 is amended by committees, except that the designated AND APPEALS PROCEDURES revising paragraphs (a)(1), and (b), and Federal officer may reimburse travel and by adding a new paragraph (c) to read per diem expenses to members of 1. The authority for part 4 continues as follows: subgroups who are also members of the to read as follows: parent committee. Authority: R.S. 2478, as amended, 43 § 1784.2±2 Avoidance of conflict of U.S.C. sec. 1201, unless otherwise noted. interest. § 1784.5±1 and 1784.5±2 [Amended] (a) * * * 9. Sections 1784.5–1 and 1784.5–2 are Subpart EÐSpecial Rules Applicable (1) Holders of grazing permits and amended by removing the phrase ‘‘his to Public Land Hearings and Appeals leases may serve on advisory authorized representative’’ and adding committees, including resource advisory in its place the phrase ‘‘the designated 2. The authority citation for subpart E councils, and may serve on subgroups of of part 4 continues to read as follows: Federal officer.’’ such advisory councils; 10. Section 1784.6 is revised to read Authority: Sections 4.470 to 4.478 also * * * * * as follows: issued under authority of sec. 2, 48 Stat. (b) No advisory committee members, 1270; 43 U.S.C. 315a. including members of resource advisory § 1784.6 Membership and functions of 3. Section 4.477 is amended by councils, and no members of subgroups resource advisory councils and sub-groups removing paragraph (a); removing the of such advisory committees, shall . paragraph designations (b) (1), (2), and participate in any matter in which the 11. Section 1784.6–1 is revised to read (3); and revising the first sentence of the members have a direct interest. as follows: paragraph to read as follows: (c) Members of advisory committees § 1784.6±1 Resource advisory councilsÐ § 4.477 Effect of decision suspended shall be required to disclose their direct requirements. during appeal. or indirect interest in leases, licenses, permits, contracts, or claims and related (a) Resource advisory councils shall Notwithstanding the provisions of litigation which involve lands or be established to cover all lands § 4.21(a) of this part pertaining to the resources administered by the Bureau of administered by the Bureau of Land period during which a final decision Land Management. For the purposes of Management, except where— will not be in effect, and consistent with (1) There is insufficient interest in the provisions of § 4160.3 of this title, this paragraph, indirect interest includes holdings of a spouse or a participation to ensure that membership the authorized officer may provide in can be fairly balanced in terms of the his decision that it shall be in full force dependent child. 8. Section 1784.3 is amended by points of view represented and the and effect pending decision on an removing paragraphs (a), (b)(3), (b)(4), functions to be performed; or appeal therefrom. * ** (b)(5), (c), (d) and (g); redesignating (2) The location of the public lands PART 1780ÐCOOPERATIVE paragraphs (b)(1) and (b)(2) as with respect to the population of users RELATIONS paragraphs (a)(1) and (a)(2), and other interested parties precludes respectively; adding introductory text effective participation. 4. The authority citation for part 1780 before newly redesignated paragraph (b) A resource advisory council is revised to read as follows: (a)(1); removing from newly advises the Bureau of Land Management Authority: 5 U.S.C. App. (Federal Advisory redesignated paragraph (a)(1) the word official to whom it reports regarding the Committee Act); 43 U.S.C. 1739. ‘‘district’’ and adding in its place the preparation, amendment and words ‘‘geographical area’’; removing implementation of land use plans for Subpart 1784ÐAdvisory Committees paragraph (b) and redesignating public lands and resources within its area. Except for the purposes of long- § 1784.0±5 [Amended] paragraphs (e) and (f) as paragraphs (b) and (c), respectively; removing the range planning and the establishment of 5. Section 1784.0–5 is amended by resource management priorities, a removing from paragraph (d) the term words ‘‘his authorized representative’’ from newly redesignated paragraph (c) resource advisory council shall not ‘‘Authorized representative’’ and adding provide advice on the allocation and in its place the words ‘‘Designated and adding in its place the words ‘‘the designated Federal officer’’; and adding expenditure of funds. A resource Federal officer’’. advisory council shall not provide 6. Section 1784.2–1 is amended by a new paragraph (d) to read as follows: advice regarding personnel actions. removing paragraph (b), redesignating § 1784.3 Member service. (c) The Secretary shall appoint the paragraph (c) as paragraph (b), and (a) Appointments to advisory members of each resource advisory revising the newly redesignated committees shall be for 2-year terms paragraph (b) to read as follows: council. The Secretary shall appoint at unless otherwise specified in the charter least 1 elected official of general § 1784.2±1 Composition. or the appointing document. Terms of purpose government serving the people * * * * * service normally coincide with duration of the area to each council. An (b) Individuals shall qualify to serve of the committee charter. Members may individual may not serve concurrently on an advisory committee because their be appointed to additional terms at the on more than 1 resource advisory education, training, or experience discretion of the authorized appointing council. Council members and members enables them to give informed and official. of a rangeland resource team or other objective advice regarding an industry, * * * * * local general purpose subgroup must discipline, or interest specified in the (d) For purposes of compensation, reside in 1 of the States within the committee’s charter; they have members of advisory committees shall geographic jurisdiction of the council or demonstrated experience or knowledge be reimbursed for travel and per diem subgroup, respectively. Council of the geographical area under the expenses when on advisory committee members and members of general purview of the advisory committee; and business, as authorized by 5 U.S.C. purpose subgroups shall be they have demonstrated a commitment 5703. No reimbursement shall be made representative of the interests of the to collaborate in seeking solutions to for expenses incurred by members of following 3 general groups: resource management issues. subgroups selected by established (1) Persons who— Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9959 (i) Hold Federal grazing permits or quorum of council members must be § 1784.6–1(c) must be present to leases within the area for which the present to constitute an official meeting constitute an official meeting of the council is organized; of the council. Formal recommendations council. Formal recommendations shall (ii) Represent interests associated shall require agreement of at least a require agreement of at least 3 council with transportation or rights-of-way; majority of each of the 3 categories of members from each of the 3 categories (iii) Represent developed outdoor interest from which appointments are of interest from which appointments are recreation, off-highway vehicle users, or made. made. commercial recreation activities; (i) Where the resource advisory (iv) Subgroups. Local rangeland (iv) Represent the commercial timber council becomes concerned that its resource teams may be formed within industry; or advice is being arbitrarily disregarded, the geographical area for which a (v) Represent energy and mineral the council may request that the resource advisory council provides development. Secretary respond directly to such advice, down to the level of a single (2) Persons representing— concerns within 60 days of receipt. allotment. These teams may be formed (i) Nationally or regionally recognized Such a request can be made only upon by a resource advisory council on its environmental organizations; the agreement of all council members. own motion or in response to a petition (ii) Dispersed recreational activities; The Secretary’s response shall not by local citizens. Rangeland resource (iii) Archeological and historical constitute a decision on the merits of teams will be formed for the purpose of interests; or any issue that is or might become the providing local level input to the (iv) Nationally or regionally subject of an administrative appeal, and resource advisory council regarding recognized wild horse and burro interest shall not be appealable. issues pertaining to the administration groups. (j) Administrative support for a of grazing on public land within the (3) Persons who— resource advisory council shall be area for which the rangeland resource (i) Hold State, county or local elected provided by the office of the designated team is formed. office; Federal officer. (A) Rangeland resource teams will (ii) Are employed by a State agency 12. A new § 1784.6–2 is added to read consist of 5 members selected by the responsible for management of natural as follows: resource advisory council. Membership resources, land, or water; will include 2 persons holding Federal (iii) Represent Indian tribes within or § 1784.6±2 Resource advisory councilsÐ grazing permits or leases. Additional adjacent to the area for which the optional features. members will include 1 person council is organized; (a) Resource advisory councils must representing the public-at-large, 1 (iv) Are employed as academicians in be established consistent with any 1 of person representing a nationally or natural resource management or the the 3 models in paragraphs (a)(1), (a)(2), regionally recognized environmental natural sciences; or and (a)(3) of this section. The model organization, and 1 person representing (v) Represent the affected public-at- type and boundaries for resource national, regional, or local wildlife or large. advisory councils shall be established recreation interests. Persons selected by (d) In appointing members of a by the BLM State Director(s) in the council to represent the public-at- resource advisory council from the 3 consultation with the Governors of the large, environmental, and wildlife or categories set forth in paragraphs (c)(1), affected States and other interested recreation interests may not hold (c)(2), and (c)(3) of this section, the parties. Federal grazing permits or leases. At Secretary shall provide for balanced and least 1 member must be selected from (1) Model A broad representation from within each the membership of the resource category. (i) Council jurisdiction. The advisory council. (e) In making appointments to geographic jurisdiction of a council (B) The resource advisory council will resource advisory councils the Secretary shall coincide with BLM District or be required to select rangeland resource shall consider nominations made by the ecoregion boundaries. The Governor of team members from nominees who Governor of the State or States affected the affected States or existing resource qualify by virtue of their knowledge or and nominations received in response to advisory councils may petition the experience of the lands, resources, and public calls for nominations pursuant to Secretary to establish a resource communities that fall within the area for § 1784.4–1. Persons interested in serving advisory council for a specified Bureau which the team is formed. All on resource advisory councils may of Land Management resource area. The nominations must be accompanied by nominate themselves. All nominations councils will provide advice to the letters of recommendation from the shall be accompanied by letters of Bureau of Land Management official to groups or interests to be represented. reference from interests or organizations whom they report regarding the (C) All members of rangeland resource to be represented. preparation, amendment and teams will attend a course of instruction (f) Persons appointed to resource implementation of land use plans. The in the management of rangeland advisory councils shall attend a course councils will also assist in establishing ecosystems that has been approved by of instruction in the management of other long-range plans and resource the BLM State Director. Rangeland rangeland ecosystems that has been management priorities in an advisory resource teams will have opportunities approved by the Bureau of Land capacity, including providing advice on to raise any matter of concern with the Management State Director. the development of plans for range resource advisory council and to request (g) A resource advisory council shall improvement or development programs. that BLM form a technical review team, meet at the call of the designated (ii) Membership. Each council shall as described below, to provide Federal officer and elect its own have 15 members, distributed equally information and options to the council officers. The designated Federal officer among the 3 interest groups specified in for their consideration. shall attend all meetings of the council. § 1784.6–1(c). (D) Technical review teams can be (h) Council charters must include (iii) Quorum and voting requirements. formed by the BLM authorized officer rules defining a quorum and At least 3 council members from each of on the motion of BLM or in response to establishing procedures for sending the 3 categories of interest from which a request by the resource advisory recommendations forward to BLM. A appointments are made pursuant to council or a rangeland resource team. 9960 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations The purpose of such teams is to gather development of area-specific National resource advisory council on grazing and analyze data and develop Environmental Policy Act documents, administration should be constituted in recommendations to aid the and develop range and wildlife accordance with provisions for decisionmaking process, and functions education and training programs. As membership in § 1784.6–1(c). will be limited to tasks assigned by the with the resource advisory council, an (A) Technical review teams can be authorized officer. Membership will be 80% affirmative vote will be required to formed by the BLM authorized officer limited to Federal employees and paid send a recommendation to the resource on the motion of BLM or in response to consultants. Members will be selected advisory council. a request by the resource advisory based upon their knowledge of resource (A) Rangeland resource teams will not council or a local team. The purpose of management or their familiarity with exceed 10 members and will include at such technical review teams is to gather the specific issues for which the least 2 persons from environmental or and analyze data and develop technical review team has been formed. wildlife groups, 2 grazing permittees, 1 recommendations to aid the Technical review teams will terminate elected official, 1 game and fish district decisionmaking process, and functions upon completion of the assigned task. representative, 2 members of the public will be limited to tasks assigned by the or other interest groups, and a Federal (2) Model B authorized officer. Membership will be officer from BLM. Members will be limited to Federal employees and paid (i) Council jurisdiction. The appointed for 2 year terms by the consultants. Members will be selected jurisdiction of the council shall be resource advisory council and may be based upon their knowledge of resource Statewide, or on an ecoregion basis. The reappointed. No member may serve on management or their familiarity with purpose of the council is to promote more than 1 rangeland resource team. the specific issues for which the federal, state, and local cooperation in (B) Technical review teams can be technical review team has been formed. the management of natural resources on formed by the BLM authorized officer Technical review teams will terminate public lands, and to coordinate the on the motion of BLM or in response to upon completion of the assigned task. development of sound resource a request by the resource advisory (B) [Reserved] management plans and activities with council or a rangeland resource team. other states. It will provide an The purpose of such teams is to gather § 1784.6±3 through 1784.6±5 [Removed] opportunity for meaningful public and analyze data and develop 13. Sections 1784.6–3 through participation in land management recommendations to aid the 1784.6–5 are removed. decisions at the state level and will decisionmaking process, and functions foster conflict resolution through open will be limited to tasks assigned by the PART 4100ÐGRAZING dialogue and collaboration. authorized officer. Membership will be ADMINISTRATIONÐEXCLUSIVE OF (ii) Membership. The council shall limited to Federal employees and paid ALASKA have 15 members, distributed equally consultants. Members will be selected 14. The authority citation for part among the 3 interest groups specified in based upon their knowledge of resource 4100 is revised to read as follows: § 1784.6–1(c), and will include at least management or their familiarity with one representative from wildlife interest the specific issues for which the Authority: 43 U.S.C. 315, 315a-315r, 1181d, 1740. groups, grazing interests, minerals and technical review team has been formed. energy interests, and established Technical review teams will terminate 15. Section 4100.0–2 is revised to read environmental/conservation interests. upon completion of the assigned task. as follows: The Governor shall chair the council. (iii) Quorum and voting requirements. (3) Model C § 4100.0±2 Objectives. The charter of the council shall specify (i) Council jurisdiction. The The objectives of these regulations are that 80% or 12 members must be jurisdiction of the council shall be on to promote healthy sustainable present to constitute a quorum and the basis of ecoregion, State, or BLM rangeland ecosystems; to accelerate conduct official business, and that 80% district boundaries. restoration and improvement of public or 12 members of the council must vote (ii) Membership. Membership of the rangelands to properly functioning affirmatively to refer an issue to BLM council shall be 10 to 15 members, conditions; to promote the orderly use, Federal officer. distributed in a balanced fashion among improvement and development of the (iv) Subgroups. Local rangeland the 3 interest groups defined in public lands; to establish efficient and resource teams may be formed by the § 1784.6–1(c). effective administration of grazing of Statewide council, down to the level of (iii) Quorum and voting requirements. public rangelands; and to provide for a 4th order watershed. Rangeland The charter of each council shall specify the sustainability of the western resource teams will be formed for the that a majority of each interest group livestock industry and communities that purpose of providing local level input to must be present to constitute a quorum are dependent upon productive, healthy the resource advisory council. They will and conduct official business, and that public rangelands. These objectives meet at least quarterly and will promote a majority of each interest group must shall be realized in a manner that is a decentralized administrative vote affirmatively to refer an issue to consistent with land use plans, multiple approach, encourage good stewardship, BLM Federal officer. use, sustained yield, environmental emphasize coordination and (iv) Subgroups. Resource advisory values, economic and other objectives cooperation among agencies, permittees councils may form more local teams to stated in 43 CFR part 1720, subpart and the interested public, develop provide general local level input to the 1725; the Taylor Grazing Act of June 28, proposed solutions and management resource advisory council on issues 1934, as amended (43 U.S.C. 315, 315a– plans for local resources on public necessary to the successful functioning 315r); section 102 of the Federal Land lands, promote renewable rangeland of the council. Such subgroups can be Policy and Management Act of 1976 (43 resource values, develop proposed formed in response to a petition from U.S.C. 1740). standards to address sustainable local citizens or on the motion of the 16. Section 4100.0–5 is amended by resource uses and rangeland health, resource advisory council. Membership removing the definition of ‘‘Affected address renewable rangeland resource in any subgroup formed for the purpose interests,’’ ‘‘Grazing preference,’’ and values, propose and participate in the of providing general input to the ‘‘Subleasing’’; revising the definitions of Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9961 ‘‘Active use,’’ ‘‘Actual use,’’ ‘‘Allotment (1) Protecting the land and its direction for resource uses of public management plan (AMP),’’ resources from destruction or lands. ‘‘Consultation, cooperation and unnecessary injury; * * * * * coordination,’’ ‘‘Grazing lease,’’ (2) Improving rangeland conditions; Permitted use means the forage ‘‘Grazing permit,’’ ‘‘Land use plan,’’ or allocated by, or under the guidance of, ‘‘Range improvement,’’ ‘‘Suspension,’’ (3) Enhancing resource values, uses, an applicable land use plan for livestock and ‘‘Utilization’’; and by adding in or functions. grazing in an allotment under a permit alphabetical order the definitions of Consultation, cooperation, and or lease and is expressed in AUMs. ‘‘Activity plan,’’ ‘‘Affiliate,’’ ‘‘Annual coordination means interaction for the * * * * * rangelands,’’ ‘‘Conservation use,’’ purpose of obtaining advice, or Range improvement means an ‘‘Ephemeral rangelands,’’ ‘‘Grazing exchanging opinions on issues, plans, or authorized physical modification or preference or preference,’’ ‘‘Interested management actions. treatment which is designed to improve public,’’ ‘‘Permitted use,’’ ‘‘Temporary * * * * * production of forage; change vegetation nonuse,’’ and ‘‘Unauthorized leasing composition; control patterns of use; and subleasing’’ to read as follows: Ephemeral rangelands means areas of the Hot Desert Biome (Region) that do provide water; stabilize soil and water § 4100.0±5 Definitions. not consistently produce enough forage conditions; restore, protect and improve * * * * * to sustain a livestock operation but may the condition of rangeland ecosystems Active use means the current briefly produce unusual volumes of to benefit livestock, wild horses and authorized use, including livestock forage to accommodate livestock burros, and fish and wildlife. The term grazing and conservation use. Active grazing. includes, but is not limited to, structures, treatment projects, and use of use may constitute a portion, or all, of * * * * * permitted use. Active use does not mechanical devices or modifications Grazing lease means a document achieved through mechanical means. include temporary nonuse or suspended authorizing use of the public lands use of forage within all or a portion of outside an established grazing district. * * * * * an allotment. Grazing leases specify all authorized use Suspension means the temporary Activity plan means a plan for including livestock grazing, suspended withholding from active use, through a managing a resource use or value to use, and conservation use. Leases decision issued by the authorized officer achieve specific objectives. For specify the total number of AUMs or by agreement, of part or all of the example, an allotment management plan apportioned, the area authorized for permitted use in a grazing permit or is an activity plan for managing grazing use, or both. lease. livestock grazing use to improve or Temporary nonuse means the maintain rangeland conditions. Grazing permit means a document authorized withholding, on an annual Actual use means where, how many, authorizing use of the public lands basis, of all or a portion of permitted what kind or class of livestock, and how within an established grazing district. livestock use in response to a request of long livestock graze on an allotment, or Grazing permits specify all authorized the permittee or lessee. on a portion or pasture of an allotment. use including livestock grazing, suspended use, and conservation use. * * * * * * * * * * Unauthorized leasing and subleasing Affiliate means an entity or person Permits specify the total number of AUMs apportioned, the area authorized means— that controls, is controlled by, or is (1) The lease or sublease of a Federal for grazing use, or both. under common control with, an grazing permit or lease, associated with applicant, permittee or lessee. The term Grazing preference or preference the lease or sublease of base property, to ‘‘control’’ means having any means a superior or priority position another party without a required relationship which gives an entity or against others for the purpose of transfer approved by the authorized person authority directly or indirectly to receiving a grazing permit or lease. This officer; determine the manner in which an priority is attached to base property (2) The lease or sublease of a Federal applicant, permittee or lessee conducts owned or controlled by the permittee or grazing permit or lease to another party grazing operations. lessee. without the assignment of the associated * * * * * Interested public means an base property; Allotment management plan (AMP) individual, group or organization that (3) Allowing another party, other than means a documented program has submitted a written request to the sons and daughters of the grazing developed as an activity plan, consistent authorized officer to be provided an permittee or lessee meeting the with the definition at 43 U.S.C. 1702(k), opportunity to be involved in the requirements of § 4130.7(f), to graze on that focuses on, and contains the decisionmaking process for the public lands livestock that are not necessary instructions for, the management of livestock grazing on owned or controlled by the permittee or management of livestock grazing on specific grazing allotments or has lessee; or specified public lands to meet resource submitted written comments to the (4) Allowing another party, other than condition, sustained yield, multiple use, authorized officer regarding the sons and daughters of the grazing economic and other objectives. management of livestock grazing on a permittee or lessee meeting the Annual rangelands means those specific allotment. requirements of § 4130.7(f), to graze designated areas in which livestock Land use plan means a resource livestock on public lands under a forage production is primarily management plan, developed under the pasturing agreement without the attributable to annual plants and varies provisions of 43 CFR part 1600, or a approval of the authorized officer. greatly from year to year. management framework plan. These Utilization means the portion of * * * * * plans are developed through public forage that has been consumed by Conservation use means an activity, participation in accordance with the livestock, wild horses and burros, excluding livestock grazing, on all or a provisions of the Federal Land Policy wildlife and insects during a specified portion of an allotment for purposes and Management Act of 1976 (43 U.S.C period. The term is also used to refer to of— 1701 et seq.) and establish management the pattern of such use. 9962 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 17. Section 4100.0–7 is revised to read (c) as the introductory text of paragraph identity of interests among family as follows: (a), (a)(1), (a)(2), and (a)(3), respectively, members, and contractual relationships. revising the introductory text of newly (d) Applicants shall submit an § 4100.0±7 Cross reference. redesignated paragraph (a), and adding application and any other relevant The regulations at part 1600 of this new paragraphs (b), (c), and (d) to read information requested by the authorized chapter govern the development of land as follows: officer in order to determine that all use plans; the regulations at part 1780, qualifications have been met. § 4110.1 Mandatory qualifications. subpart 1784 of this chapter govern 20. Section 4110.1–1 is revised to read advisory committees; and the (a) Except as provided under as follows: regulations at subparts B and E of part §§ 4110.1–1, 4130.5, and 4130.6–3, to 4 of this title govern appeals and qualify for grazing use on the public § 4110.1±1 Acquired lands. hearings. lands an applicant must own or control Where lands have been acquired by 18. A new § 4100.0–9 is added to read land or water base property, and must the Bureau of Land Management as follows: be: through purchase, exchange, Act of § 4100.0±9 Information collection. * * * * * Congress or Executive Order, and an (a) The information collection (b) Applicants for the renewal or agreement or the terms of the act or requirements contained in Group 4100 issuance of new permits and leases and Executive Order provide that the Bureau have been approved by the Office of any affiliates must be determined by the of Land Management shall honor Management and Budget under 44 authorized officer to have a satisfactory existing grazing permits or leases, such U.S.C. 3501 et seq. and assigned record of performance. permits or leases are governed by the clearance numbers 1004–0005, 1004– (1) Renewal of permit or lease. (i) The terms and conditions in effect at the 0019, 1004–0020, 1004–0041, 1004– applicant for renewal of a grazing time of acquisition by the Bureau of 0047, 1004–0051, and 1004–0068. The permit or lease, and any affiliate, shall Land Management, and are not subject information would be collected to be deemed to have a satisfactory record to the requirements of § 4110.1. permit the authorized officer to of performance if the authorized officer 21. Section 4110.2–1 is amended by determine whether an application to determines the applicant and affiliates revising paragraphs (a)(1), (a)(2) and (c) utilize public lands for grazing or other to be in substantial compliance with the to read as follows: purposes should be approved. Response terms and conditions of the existing § 4110.2±1 Base Property. is required to obtain a benefit. Federal grazing permit or lease for (b) Public reporting burden for the which renewal is sought, and with the (a) * * * information collections are as follows: rules and regulations applicable to the (1) It is capable of serving as a base Clearance number 1004–0005 is permit or lease. of operation for livestock use of public estimated to average 0.33 hours per (ii) The authorized officer may take lands within a grazing district; or response, clearance number 1004–0019 into consideration circumstances (2) It is contiguous land, or, when no is estimated to average 0.33 hours per beyond the control of the applicant or applicant owns or controls contiguous response, clearance number 1004–0020 affiliate in determining whether the land, noncontiguous land that is capable is estimated to average 0.33 hours per applicant and affiliates are in of being used in conjunction with a response, clearance number 1004–0041 substantial compliance with permit or livestock operation which would utilize is estimated to average 0.25 hours per lease terms and conditions and public lands outside a grazing district. response, clearance number 1004–0047 applicable rules and regulations. * * * * * is estimated to average 0.25 hours per (2) New permit or lease. Applicants (c) An applicant shall provide a legal response, clearance number 1004–0051 for new permits or leases, and any description, or plat, of the base property is estimated to average 0.3 hours per affiliates, shall be deemed not to have a and shall certify to the authorized response, and clearance number 1004– record of satisfactory performance officer that this base property meets the 0068 is estimated to average 0.17 hours when— requirements under paragraphs (a) and per response, including the time for (i) The applicant or affiliate has had (b) of this section. A permittee’s or reviewing instructions, searching any Federal grazing permit or lease lessee’s interest in water previously existing data sources, gathering and cancelled for violation of the permit or recognized as base property on public maintaining the data needed, and lease within the 36 calendar months land shall be deemed sufficient in completing and reviewing the collection immediately preceding the date of meeting the requirement that the of information. Send comments application; or applicant control base property. Where regarding this burden estimate or any (ii) The applicant or affiliate has had such waters become unusable and are other aspect of these collections of any State grazing permit or lease, for replaced by newly constructed or information, including suggestions for lands within the grazing allotment for reconstructed water developments that reducing the burden to the Information which a Federal permit or lease is are the subject of a range improvement Collection Clearance Officer (873), sought, cancelled for violation of the permit or cooperative range Bureau of Land Management, permit or lease within the 36 calendar improvement agreement, the permittee’s Washington, DC 20240, and the Office months immediately preceding the date or lessee’s interest in the replacement of Management and Budget, Paperwork of application; or water shall be deemed sufficient in Reduction Project, 1004–0005, –0019, (iii) The applicant or affiliate is barred meeting the requirement that the –0020, –0041, –0047, –0051, or –0068, from holding a Federal grazing permit or applicant control base property. Washington, DC 20503. lease by order of a court of competent * * * * * jurisdiction. Subpart 4110ÐQualifications and 22. Section 4110.2–2 is amended by Preference (c) In determining whether affiliation removing the term ‘‘grazing preference’’ exists, the authorized officer shall from paragraph (c) and adding in its 19. Section 4110.1 is amended by consider all appropriate factors, place the term ‘‘permitted use’’ and by redesignating the introductory text of including, but not limited to, common revising the section heading and the section, and paragraphs (a), (b), and ownership, common management, paragraph (a) to read as follows: Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9963 § 4110.2±2 Specifying permitted use. and shall make changes in the permitted livestock carrying capacity as (a) Permitted use is granted to holders use as needed to manage, maintain or determined through monitoring, of grazing preference and shall be improve rangeland productivity, to ecological site inventory or other specified in all grazing permits and assist in restoring ecosystems to acceptable methods, the authorized leases. Permitted use shall encompass properly functioning condition, to officer shall reduce permitted grazing all authorized use including livestock conform with land use plans or activity use or otherwise modify management use, any suspended use, and plans, or to comply with the provisions practices. conservation use, except for permits and of subpart 4180 of this part. These 28. Section 4110.3–3 is revised to read leases for designated ephemeral changes must be supported by as follows: rangelands where livestock use is monitoring, field observations, authorized based upon forage ecological site inventory or other data § 4110.3±3 Implementing reductions in permitted use. availability, or designated annual acceptable to the authorized officer. rangelands. Permitted livestock use 26. Section 4110.3–1 is amended by (a) After consultation, cooperation, shall be based upon the amount of removing the words ‘‘grazing and coordination with the affected forage available for livestock grazing as preferences’’ from paragraph (b) and permittee or lessee, the State having established in the land use plan, activity adding in their place the words lands or managing resources within the plan, or decision of the authorized ‘‘suspended permitted use’’; removing area, and the interested public, officer under § 4110.3–3, except, in the from paragraph (c)(2) the term ‘‘grazing reductions of permitted use shall be case of designated ephemeral or annual preference’’ and adding in its place the implemented through a documented rangelands, a land use plan or activity term ‘‘permitted use’’ and removing the agreement or by decision of the plan may alternatively prescribe words ‘‘and/or’’ and adding in their authorized officer. Decisions vegetation standards to be met in the place the word ‘‘and’’; revising the implementing § 4110.3–2 shall be issued use of such rangelands. section heading, paragraph (a), the as proposed decisions pursuant to § 4160.1, except as provided in * * * * * introductory text of paragraph (c), and paragraph (b) of this section. 23. Section 4110.2–3 is amended by paragraph (c)(1), to read as follows: (b) When the authorized officer redesignating paragraph (f) as paragraph § 4110.3±1 Increasing permitted use. determines that the soil, vegetation, or (g), removing from paragraph (b) the * * * * * other resources on the public lands term ‘‘grazing preference’’ and adding in (a) Additional forage temporarily require immediate protection because of its place the term ‘‘permitted use,’’ available for livestock grazing use may conditions such as drought, fire, flood, revising paragraph (a)(1), and adding a be apportioned on a nonrenewable insect infestation, or when continued new paragraph (f) to read as follows: basis. grazing use poses an imminent § 4110.2±3 Transfer of grazing preference. * * * * * likelihood of significant resource (a) * * * (c) After consultation, cooperation, damage, after consultation with, or a (1) The transferee shall meet all and coordination with the affected reasonable attempt to consult with, qualifications and requirements of permittees or lessees, the State having affected permittees or lessees, the §§ 4110.1, 4110.2–1, and 4110.2–2. lands or managing resources within the interested public, and the State having * * * * * area, and the interested public, lands or responsible for managing (f) Transfers shall be for a period of additional forage on a sustained yield resources within the area, the not less than 3 years unless a shorter basis available for livestock grazing use authorized officer shall close allotments term is determined by the authorized in an allotment may be apportioned to or portions of allotments to grazing by officer to be consistent with permittees or lessees or other any kind of livestock or modify management and resource condition applicants, provided the permittee, authorized grazing use notwithstanding objectives. lessee, or other applicant is found to be the provisions of paragraph (a) of this qualified under subpart 4110 of this * * * * * section. Notices of closure and decisions 24. Section 4110.2–4 is revised to read part. Additional forage shall be requiring modification of authorized as follows: apportioned in the following priority: grazing use may be issued as final (1) Permittees or lessees in proportion decisions effective upon issuance or on § 4110.2±4 Allotments. to their contribution or stewardship the date specified in the decision. Such After consultation, cooperation, and efforts which result in increased forage decisions shall remain in effect pending coordination with the affected grazing production; the decision on appeal unless a stay is permittees or lessees, the State having * * * * * granted by the Office of Hearings and lands or responsible for managing 27. Section 4110.3–2 is amended by Appeals in accordance with 43 CFR resources within the area, and the revising the section heading, removing 4.21. interested public, the authorized officer from paragraph (a) the term ‘‘Active’’ 29. Section 4110.4–2 is amended by may designate and adjust grazing and adding in its place the term revising paragraphs (a)(1) and (a)(2) to allotment boundaries. The authorized ‘‘Permitted,’’ removing paragraph (c) read as follows: officer may combine or divide and revising paragraph (b) to read as § 4110.4±2 Decrease in land acreage. allotments, through an agreement or by follows: decision, when necessary for the proper (a) * * * § 4110.3±2 Decreasing permitted use. and efficient management of public (1) Grazing permits or leases may be rangelands. * * * * * cancelled or modified as appropriate to 25. Section 4110.3 is revised to read (b) When monitoring or field reflect the changed area of use. as follows: observations show grazing use or (2) Permitted use may be cancelled in patterns of use are not consistent with whole or in part. Cancellations § 4110.3 Changes in permitted use. the provisions of subpart 4180, or determined by the authorized officer to The authorized officer shall grazing use is otherwise causing an be necessary to protect the public lands periodically review the permitted use unacceptable level or pattern of will be apportioned by the authorized specified in a grazing permit or lease utilization, or when use exceeds the officer based upon the level of available 9964 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations forage and the magnitude of the change grazing and shall give public notice (b) Subject to valid existing rights, in public land acreage available, or as concerning the availability of title to permanent range improvements agreed to among the authorized users environmental documents prepared as a such as fences, wells, and pipelines and the authorized officer. part of the development of such plans, where authorization is granted after * * * * * prior to implementing the plans. The August 21, 1995 shall be in the name of decision document following the the United States. The authorization for Subpart 4120ÐGrazing Management environmental analysis shall be all new permanent water developments considered the proposed decision for such as spring developments, wells, 30. Section 4120.2 is revised to read the purposes of subpart 4160 of this reservoirs, stock tanks, and pipelines as follows: part. shall be through cooperative range § 4120.2 Allotment management plans and (d) A requirement to conform with improvement agreements. A permittee’s resource activity plans. completed allotment management plans or lessee’s interest in contributed funds, Allotment management plans or other or other applicable activity plans labor, and materials will be documented activity plans intended to serve as the intended to serve as the functional by BLM to ensure proper credit for the functional equivalent of allotment equivalent of allotment management purposes of §§ 4120.3–5 and 4120.3– management plans may be developed by plans shall be incorporated into the 6(c). permittees or lessees, other Federal or terms and conditions of the grazing (c) The United States shall have title State resource management agencies, permit or lease for the allotment. to nonstructural range improvements interested citizens, and the Bureau of (e) Allotment management plans or such as seeding, spraying, and chaining. Land Management. When such plans other applicable activity plans intended (d) Range improvement work affecting the administration of grazing to serve as the functional equivalent of performed by a cooperator or permittee allotments are developed, the following allotment management plans may be on the public lands or lands provisions apply: revised or terminated by the authorized administered by BLM does not confer (a) An allotment management plan or officer after consultation, cooperation, the exclusive right to use the other activity plans intended to serve as and coordination with the affected improvement or the land affected by the the functional equivalent of allotment permittees or lessees, landowners range improvement work. 33. Section 4120.3–3 is amended by management plans shall be prepared in involved, the multiple resource advisory revising the first sentence of paragraph careful and considered consultation, council, any State having lands or (a), and paragraphs (b) and (c) to read as cooperation, and coordination with responsible for managing resources follows: affected permittees or lessees, within the area to be covered by the landowners involved, the resource plan, and the interested public. § 4120.3±3 Range improvement permits. advisory council, any State having lands 31. Section 4120.3–1 is amended by (a) Any permittee or lessee may apply or responsible for managing resources adding the words ‘‘range improvement’’ for a range improvement permit to within the area to be covered by such immediately before the word install, use, maintain, and/or modify a plan, and the interested public. The ‘‘agreement’’ in paragraphs (b) and (e), removable range improvements that are plan shall become effective upon and by adding a new paragraph (f) to needed to achieve management approval by the authorized officer. The read as follows: objectives for the allotment in which the plans shall— permit or lease is held. * ** (1) Include terms and conditions § 4120.3±1 Conditions for range (b) The permittee or lessee may hold improvements. under §§ 4130.3, 4130.3–1, 4130.3–2 the title to authorized removable range 4130.3–3, and subpart 4180 of this part; * * * * * improvements used as livestock (2) Prescribe the livestock grazing (f) Proposed range improvement handling facilities such as corrals, creep practices necessary to meet specific projects shall be reviewed in accordance feeders, and loading chutes, and to resource objectives; with the requirements of the National temporary structural improvements (3) Specify the limits of flexibility, to Environmental Policy Act of 1969 (42 such as troughs for hauled water. be determined and granted on the basis U.S.C. 4371 et seq.). The decision (c) Where a permittee or lessee cannot of the operator’s demonstrated document following the environmental make use of the forage available for stewardship, within which the analysis shall be considered the livestock and an application for permittee(s) or lessee(s) may adjust proposed decision under subpart 4160 temporary nonuse or conservation use operations without prior approval of the of this part. has been denied or the opportunity to authorized officer; and 32. Section 4120.3–2 is revised to read make use of the available forage is (4) Provide for monitoring to evaluate as follows: requested by the authorized officer, the the effectiveness of management actions permittee or lessee shall cooperate with in achieving the specific resource § 4120.3±2 Cooperative range the temporary authorized use of forage improvement agreements. objectives of the plan. by another operator, when it is (b) Private and State lands may be (a) BLM may enter into a cooperative authorized by the authorized officer included in allotment management range improvement agreement with a following consultation with the plans or other activity plans intended to person, organization, or other preference permittee(s) or lessee(s). serve as the functional equivalent of government entity for the installation, (1) A permittee or lessee shall be allotment management plans dealing use, maintenance, and/or modification reasonably compensated for the use and with rangeland management with the of permanent range improvements or maintenance of improvements and consent or at the request of the parties rangeland developments to achieve facilities by the operator who has an who own or control those lands. management or resource condition authorization for temporary grazing use. (c) The authorized officer shall objectives. The cooperative range (2) The authorized officer may provide opportunity for public improvement agreement shall specify mediate disputes about reasonable participation in the planning and how the costs or labor, or both, shall be compensation and, following environmental analysis of proposed divided between the United States and consultation with the interested parties, plans affecting the administration of cooperator(s). make a determination concerning the Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9965 fair and reasonable share of operation State within which such land is located. New sec- and maintenance expenses and To the extent allowed by the law of the Old section tion compensation for use of authorized State within which the land is located, improvements and facilities. any such water right shall be acquired, 4130.4±3 ...... 4130.6±3 (3) Where a settlement cannot be perfected, maintained, and administered 4130.4±4 ...... 4130.6±4 reached, the authorized officer shall 4130.5 ...... 4130.7 in the name of the United States. 4130.6 ...... 4130.3 issue a temporary grazing authorization 36. Section 4120.5 is added to read as 4130.6±1 ...... 4130.3±1 including appropriate terms and follows: 4130.6±2 ...... 4130.3±2 conditions and the requirement to 4130.6±3 ...... 4130.3±3 § 4120.5 Cooperation. compensate the preference permittee or 4130.7 ...... 4130.8 lessee for the fair share of operation and 37. Section 4120.5–1 is added to read 4130.7±1 ...... 4130.8±1 maintenance as determined by the as follows: 4130.7±2 ...... 4130.8±2 4130.7±3 ...... 4130.8±3 authorized officer under subpart 4160 of § 4120.5±1 Cooperation in management. this part. 4130.8 ...... 4130.9 The authorized officer shall, to the 34. Section 4120.3–8 is added to read extent appropriate, cooperate with as follows: 40. Section 4130.1 is added to read as Federal, State, Indian tribal and local follows: § 4120.3±8 Range improvement fund. governmental entities, institutions, § 4130.1 Applications. (a) In addition to range developments organizations, corporations, accomplished through other resource associations, and individuals to achieve 41. Newly redesignated § 4130.1–1 is management funds, authorized range the objectives of this part. amended by revising the heading to read improvements may be secured through 38. Section 4120.5–2 is added to read as follows: as follows: the use of the appropriated range § 4130.1±1 Filing applications. improvement fund. One-half of the § 4120.5±2 Cooperation with State, county, 42. Section 4130.1–2 is amended by available funds shall be expended in the and Federal agencies. State and district from which they were revising paragraph (b), removing the Insofar as the programs and word ‘‘and’’ from paragraph (e) and derived. The remaining one-half of the responsibilities of other agencies and fund shall be allocated, on a priority adding new paragraphs (g) and (h) to units of government involve grazing read as follows: basis, by the Secretary for on-the-ground upon the public lands and other lands rehabilitation, protection and administered by the Bureau of Land § 4130.1±2 Conflicting applications. improvement of public rangeland Management, or the livestock which * * * * * ecosystems. graze thereon, the Bureau of Land (b) Proper use of rangeland resources; (b) Funds appropriated for range Management will cooperate, to the improvements are to be used for * * * * * extent consistent with applicable laws (g) Demonstrated stewardship by the investment in all forms of of the United States, with the involved improvements that benefit rangeland applicant to improve or maintain and agencies and government entities. The protect the rangeland ecosystem; and resources including riparian area authorized officer shall cooperate with rehabilitation, improvement and (h) The applicant’s and affiliate’s State, county, and Federal agencies in history of compliance with the terms protection, fish and wildlife habitat the administration of laws and improvement or protection, soil and and conditions of grazing permits and regulations relating to livestock, leases of the Bureau of Land water resource improvement, wild horse livestock diseases, sanitation, and and burro habitat management facilities, Management and any other Federal or noxious weeds including— State agency, including any record of vegetation improvement and (a) State cattle and sheep sanitary or management, and livestock grazing suspensions or cancellations of grazing brand boards in control of stray and use for violations of terms and management. The funds may be used for unbranded livestock, to the extent such activities associated with on-the-ground conditions of agency grazing rules. cooperation does not conflict with the 43. Section 4130.2 is amended by improvements including the planning, Wild Free-Roaming Horse and Burro Act design, layout, contracting, redesignating paragraphs (b), (c), (d) and of 1971 (16 U.S.C. 1331 et seq.); and (e) as paragraphs (c), (d), (e) and (i), modification, maintenance for which (b) County or other local weed control BLM is responsible, and monitoring and respectively, revising paragraphs (a) and districts in analyzing noxious weed newly redesignated paragraph (d) and evaluating the effectiveness of specific problems and developing control range improvement projects. by adding new paragraphs (b), (f), (g), programs for areas of the public lands and (h) to read as follows: (c) During the planning of the range and other lands administered by the development or range improvement Bureau of Land Management. § 4130.2 Grazing permits or leases. programs, the authorized officer shall (a) Grazing permits or leases shall be consult the resource advisory council, Subpart 4130ÐAuthorizing Grazing issued to qualified applicants to affected permittees, lessees, and Use members of the interested public. authorize use on the public lands and 35. Section 4120.3–9 is added to read 39. Sections 4130.1 through 4130.8 other lands under the administration of as follows: are redesignated as follows: the Bureau of Land Management that are designated as available for livestock § 4120.3±9 Water rights for the purpose of Old section New sec- grazing through land use plans. Permits livestock grazing on public lands. tion or leases shall specify the types and levels of use authorized, including Any right acquired on or after August 4130.1 ...... 4130.1±1 21, 1995 to use water on public land for 4130.1±1 ...... 4130.4 livestock grazing, suspended use, and the purpose of livestock watering on 4130.3 ...... 4130.5 conservation use. These grazing permits public land shall be acquired, perfected, 4130.4 ...... 4130.6 and leases shall also specify terms and maintained and administered under the 4130.4±1 ...... 4130.6±1 conditions pursuant to §§ 4130.3, substantive and procedural laws of the 4130.4±2 ...... 4130.6±2 4130.3–1, and 4130.3–2. 9966 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations (b) The authorized officer shall 44. Newly redesignated § 4130.3 is lands or responsible for managing consult, cooperate and coordinate with revised to read as follows: resources within the area, and the affected permittees or lessees, the State interested public, the authorized officer having lands or responsible for § 4130.3 Terms and conditions. may modify terms and conditions of the managing resources within the area, and Livestock grazing permits and leases permit or lease when the active use or the interested public prior to the shall contain terms and conditions related management practices are not issuance or renewal of grazing permits determined by the authorized officer to meeting the land use plan, allotment and leases. be appropriate to achieve management management plan or other activity plan, * * * * * and resource condition objectives for or management objectives, or is not in (d) The term of grazing permits or the public lands and other lands conformance with the provisions of leases authorizing livestock grazing on administered by the Bureau of Land subpart 4180 of this part. To the extent the public lands and other lands under Management, and to ensure practical, the authorized officer shall the administration of the Bureau of conformance with the provisions of provide to affected permittees or lessees, Land Management shall be 10 years subpart 4180 of this part. States having lands or responsibility for unless— 45. Newly redesignated § 4130.3–1 is managing resources within the affected (1) The land is being considered for amended by revising the second area, and the interested public an disposal; sentence of paragraph (a) and adding a opportunity to review, comment and (2) The land will be devoted to a new paragraph (c) to read as follows: give input during the preparation of public purpose which precludes grazing § 4130.3±1 Mandatory terms and reports that evaluate monitoring and prior to the end of 10 years; conditions. other data that are used as a basis for (3) The term of the base property lease (a) * * * The authorized livestock making decisions to increase or decrease is less than 10 years, in which case the grazing use shall not exceed the grazing use, or to change the terms and term of the Federal permit or lease shall livestock carrying capacity of the conditions of a permit or lease. 48. Newly redesignated § 4130.4 is coincide with the term of the base allotment. property lease; or amended by revising the heading and (4) The authorized officer determines * * * * * paragraph (b) to read as follows: that a permit or lease for less than 10 (c) Permits and leases shall years is in the best interest of sound incorporate terms and conditions that § 4130.4 Approval of changes in grazing use within the terms and conditions of land management. ensure conformance with subpart 4180 of this part. permits and leases. * * * * * 46. Newly redesignated § 4130.3–2 is * * * * * (f) The authorized officer will not amended by revising paragraph (f), (b) Changes in grazing use within the offer, grant or renew grazing permits or removing the period from the end of terms and conditions of the permit or leases when the applicants, including paragraph (g) and adding an ‘‘; and’’ and lease may be granted by the authorized permittees or lessees seeking renewal, by adding a new paragraph (h) to read officer. Permittees and lessees may refuse to accept the proposed terms and as follows: apply to activate forage in temporary conditions of a permit or lease. nonuse or conservation use or to place (g) Temporary nonuse and § 4130.3±2 Other terms and conditions. forage in temporary nonuse or conservation use may be approved by * * * * * conservation use, and may apply for the the authorized officer if such use is (f) Provision for livestock grazing use of forage that is temporarily determined to be in conformance with temporarily to be delayed, discontinued available on designated ephemeral or the applicable land use plans, AMP or or modified to allow for the annual ranges. other activity plans and the provisions reproduction, establishment, or 49. Newly redesignated § 4130.5 is of subpart 4180 of this part. restoration of vigor of plants, provide for amended by designating the text as (1) Conservation use may be approved the improvement of riparian areas to paragraph (a), and by adding paragraph for periods of up to 10 years when, in achieve proper functioning condition or (b) to read as follows: the determination of the authorized for the protection of other rangeland officer, the proposed nonuse will resources and values consistent with § 4130.5 Free-use grazing permits. promote rangeland resource protection objectives of applicable land use plans, * * * * * or enhancement of resource values or or to prevent compaction of wet soils, (b) The authorized officer may also uses, including more rapid progress such as where delay of spring turnout is authorize free use under the following toward resource condition objectives; or required because of weather conditions circumstances: (2) Temporary nonuse for reasons or lack of plant growth; (1) The primary objective of including but not limited to financial * * * * * authorized grazing use or conservation conditions or annual fluctuations of (h) A statement disclosing the use is the management of vegetation to livestock, may be approved on an requirement that permittees or lessees meet resource objectives other than the annual basis for no more than 3 shall provide reasonable administrative production of livestock forage and such consecutive years. Permittees or lessees access across private and leased lands to use is in conformance with the applying for temporary nonuse shall the Bureau of Land Management for the requirements of this part; state the reasons supporting nonuse. orderly management and protection of (2) The primary purpose of grazing (h) Application for nonrenewable the public lands. use is for scientific research or grazing permits and leases under 47. Newly redesignated § 4130.3–3 is administrative studies; or §§ 4110.3–1 and 4130.6–2 for areas for revised to read as follows: (3) The primary purpose of grazing which conservation use has been use is the control of noxious weeds. authorized will not be approved. Forage § 4130.3±3 Modification of permits or 50. Reserved §§ 4130.5–1 through made available as a result of temporary leases. 4130.5–3 are removed. nonuse may be made available to Following consultation, cooperation, 51. In newly redesignated § 4130.6–1, qualified applicants under § 4130.6–2. and coordination with the affected paragraph (a) is revised to read as * * * * * lessees or permittees, the State having follows: Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9967 § 4130.6±1 Exchange-of-use grazing the authorized officer and approval for animals under 6 months of age, at agreements. received prior to any grazing use. The the time of entering public lands or (a) An exchange-of-use grazing document shall describe the livestock other lands administered by the Bureau agreement may be issued to an applicant and livestock numbers, identify the of Land Management, that are the who owns or controls lands that are owner of the livestock, contain the natural progeny of animals upon which unfenced and intermingled with public terms for the care and management of fees are paid, provided they will not lands in the same allotment when use the livestock, specify the duration of the become 12 months of age during the under such an agreement will be in agreement, and shall be signed by the authorized period of use, nor for harmony with the management parties to the agreement. progeny born during that period. In objectives for the allotment and will be * * * * * calculating the billing the grazing fee is compatible with the existing livestock (f) Livestock owned by sons and prorated on a daily basis and charges are operations. The agreements shall daughters of grazing permittees and rounded to reflect the nearest whole contain appropriate terms and lessees may graze public lands included number of AUMs. conditions required under § 4130.3 that within the permit or lease of their (d) A surcharge shall be added to the ensure the orderly administration of the parents when all the following grazing fee billings for authorized range, including fair and equitable conditions exist: grazing of livestock owned by persons sharing of the operation and (1) The sons and daughters are other than the permittee or lessee except maintenance of range improvements. participating in educational or youth where such use is made by livestock The term of an exchange-of-use programs related to animal husbandry, owned by sons and daughters of agreement may not exceed the length of agribusiness or rangeland management, permittees and lessees as provided in the term for any leased lands that are or are actively involved in the family § 4130.7(f). The surcharge shall be over offered in exchange-of-use. ranching operation and are establishing and above any other fees that may be * * * * * a livestock herd with the intent of charged for using public land forage. 52. Newly redesignated § 4130.6–2 is assuming part or all of the family ranch Surcharges shall be paid prior to grazing amended by adding a sentence to the operation. use. The surcharge for authorized end to read as follows: (2) The livestock owned by the sons pasturing of livestock owned by persons and daughters to be grazed on public other than the permittee or lessee will § 4130.6±2 Nonrenewable grazing permits lands do not comprise greater than 50 be equal to 35 percent of the difference and leases. percent of the total number authorized between the current year’s Federal ** * The authorized officer shall to occupy public lands under their grazing fee and the prior year’s private consult, cooperate and coordinate with parent’s permit or lease. grazing land lease rate per AUM for the (3) The brands or other markings of affected permittees or lessees, the State appropriate State as determined by the livestock that are owned by sons and having lands or responsible for National Agricultural Statistics Service. managing resources within the area, and daughters are recorded on the parent’s (e) * * * Grazing use that occurs the interested public prior to the permit, lease, or grazing application. prior to payment of a bill, except where issuance of nonrenewable grazing (4) Use by livestock owned by sons specified in an allotment management permits and leases. and daughters, when considered in plan, is unauthorized and may be dealt 53. Newly redesignated § 4130.6–3 is addition to use by livestock owned or with under subparts 4150 and 4170 of revised to read as follows: controlled by the permittee or lessee, does not exceed authorized livestock this part. * * * Repeated delays in § 4130.6±3 Crossing permits. use and is consistent with other terms payment of actual use billings or A crossing permit may be issued by and conditions of the permit or lease. noncompliance with the terms and the authorized officer to any applicant 55. Newly redesignated § 4130.8–1 is conditions of the allotment management showing a need to cross the public land amended by revising paragraph (c), plan and permit or lease shall be cause or other land under Bureau of Land redesignating paragraphs (d) and (e) as to revoke provisions for after-the- Management control, or both, with paragraphs (e) and (f), respectively, grazing-season billing. livestock for proper and lawful adding a new paragraph (d) and * * * * * purposes. A temporary use amending newly designated paragraph 56. The first sentence of newly authorization for trailing livestock shall (e) by adding a new sentence after the designated § 4130.8–3 is revised to read contain terms and conditions for the second sentence and a sentence to the as follows: temporary grazing use that will occur as end of the paragraph to read as follows: deemed necessary by the authorized § 4130.8±3 Service charge. § 4130.8±1 Payment of fees. officer to achieve the objectives of this A service charge may be assessed for part. * * * * * each crossing permit, transfer of grazing 54. Newly redesignated § 4130.7 is (c) Except as provided in § 4130.5, the preference, application solely for amended by revising paragraph (d) and full fee shall be charged for each animal nonuse or conservation use, and each adding a new paragraph (f) to read as unit month of authorized grazing use. replacement or supplemental billing follows: For the purposes of calculating the fee, notice except for actions initiated by the an animal unit month is defined as a authorized officer. * ** § 4130.7 Ownership and identification of month’s use and occupancy of range by livestock. 1 cow, bull, steer, heifer, horse, burro, Subpart 4140ÐProhibited Acts * * * * * mule, 5 sheep, or 5 goats, over the age (d) Except as provided in paragraph of 6 months at the time of entering the 57. Section 4140.1 is amended by (f) of this section, where a permittee or public lands or other lands revising the introductory text of lessee controls but does not own the administered by BLM; by any such paragraph (a), paragraphs (a)(2), (a)(6), livestock which graze the public lands, weaned animals regardless of age; and the introductory text of paragraph (b), the agreement that gives the permittee by such animals that will become 12 paragraphs (b)(1)(i), (b)(5), (b)(7), (b)(9), or lessee control of the livestock by the months of age during the authorized and (b)(10); and by adding paragraphs permittee or lessee shall be filed with period of use. No charge shall be made (b)(11), and (c) to read as follows: 9968 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations § 4140.1 Acts prohibited on public lands. (1) Violation of Federal or State laws specified kinds or class of livestock for (a) Grazing permittees or lessees or regulations pertaining to the: a period not to exceed 12 months when performing the following prohibited acts (i) Placement of poisonous bait or necessary to abate unauthorized grazing may be subject to civil penalties under hazardous devices designed for the use. Such notices of closure may be § 4170.1: destruction of wildlife; issued as final decisions effective upon * * * * * (ii) Application or storage of issuance or on the date specified in the (2) Failing to make substantial grazing pesticides, herbicides, or other decision and shall remain in effect use as authorized for 2 consecutive fee hazardous materials; pending the decision on appeal unless years, but not including approved (iii) Alteration or destruction of a stay is granted by the Office of temporary nonuse, conservation use, or natural stream courses without Hearings and Appeals in accordance use temporarily suspended by the authorization; with 43 CFR 4.21. authorized officer. (iv) Pollution of water sources; 60. Section 4150.3 is amended by * * * * * (v) Illegal take, destruction or removing the quotation mark, (6) Unauthorized leasing or subleasing harassment, or aiding and abetting in semicolon, and the word ‘‘and’’ at the as defined in this part. the illegal take, destruction or end of paragraph (c), and removing the (b) Persons performing the following harassment of fish and wildlife first sentence of the introductory text, prohibited acts related to rangelands to resources; and and revising the sentence following the civil and criminal penalties set forth at (vi) Illegal removal or destruction of new first sentence of the introductory §§ 4170.1 and 4170.2: archeological or cultural resources; text, and revising paragraph (a) to read (1) * * * (2) Violation of the Bald Eagle as follows: (i) Without a permit or lease, and an Protection Act (16 U.S.C. 668 et seq.), annual grazing authorization. For the Endangered Species Act (16 U.S.C. 1531 § 4150.3 Settlement. purposes of this paragraph, grazing bills et seq.), or any provision of part 4700 of ** * The amount due for settlement for which payment has not been this chapter concerning the protection shall include the value of forage received do not constitute grazing and management of wild free-roaming consumed as determined in accordance authorization. horses and burros; or with paragraph (a), (b), or (c) of this * * * * * (3) Violation of State livestock laws or section. * * * (5) Molesting, harassing, injuring, regulations relating to the branding of (a) For nonwillful violations: The poisoning, or causing death of livestock livestock; breed, grade, and number of value of forage consumed as determined authorized to graze on these lands and bulls; health and sanitation by the average monthly rate per AUM removing authorized livestock without requirements; and violating State, for pasturing livestock on privately the owner’s consent; county, or local laws regarding the stray owned land (excluding irrigated land) in of livestock from permitted public land each State as published annually by the * * * * * Department of Agriculture. The (7) Interfering with lawful uses or grazing areas onto areas that have been authorized officer may approve users including obstructing free transit formally closed to open range grazing. nonmonetary settlement of through or over public lands by force, Subpart 4150ÐUnauthorized Grazing unauthorized use only when the threat, intimidation, signs, barrier or Use authorized officer determines that each locked gates; of the following conditions is satisfied: * * * * * 58. Section 4150.1 is amended by designating the second sentence as (1) Evidence shows that the (9) Failing to pay any fee required by unauthorized use occurred through no the authorized officer pursuant to this paragraph (b) and adding a new paragraph (a) following the fault of the livestock operator; part, or making payment for grazing use (2) The forage use is insignificant; of public lands with insufficiently undesignated first sentence to read as follows: (3) The public lands have not been funded checks on a repeated and willful damaged; and basis; § 4150.1 Violations. (4) Nonmonetary settlement is in the (10) Failing to reclaim and repair any best interest of the United States. lands, property, or resources when * * * * * required by the authorized officer; (a) The authorized officer shall * * * * * (11) Failing to reclose any gate or determine whether a violation is Subpart 4160ÐAdministrative other entry during periods of livestock nonwillful, willful, or repeated willful. Remedies use. * * * * * (c) Performance of an act listed in 59. Section 4150.2 is amended by 61. Section 4160.1 is revised to read paragraphs (c)(1), (c)(2) or (c)(3) of this redesignating paragraph (b) as paragraph as follows: section where public land administered (c), and adding new paragraphs (b) and by the Bureau of Land Management is (d) to read as follows: § 4160.1 Proposed decisions. involved or affected, the violation is (a) Proposed decisions shall be served related to grazing use authorized by a § 4150.2 Notice and order to remove. on any affected applicant, permittee or permit or lease issued by the Bureau of * * * * * lessee, and any agent and lien holder of Land Management, and the permittee or (b) Whenever a violation has been record, who is affected by the proposed lessee has been convicted or otherwise determined to be nonwillful and actions, terms or conditions, or found to be in violation of any of these incidental, the authorized officer shall modifications relating to applications, laws or regulations by a court or by final notify the alleged violator that the permits and agreements (including determination of an agency charged violation must be corrected, and how it range improvement permits) or leases, with the administration of these laws or can be settled, based upon the by certified mail or personal delivery. regulations, and no further appeals are discretion of the authorized officer. Copies of proposed decisions shall also outstanding, constitutes a prohibited act * * * * * be sent to the interested public. that may be subject to the civil penalties (d) The authorized officer may (b) Proposed decisions shall state the set forth at § 4170.1–1. temporarily close areas to grazing by reasons for the action and shall Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9969 reference the pertinent terms, (e) When the Office of Hearings and irrigated land) in each State as supplied conditions and the provisions of Appeals stays a final decision of the annually by the National Agricultural applicable regulations. As appropriate, authorized officer to change the Statistics Service, and all reasonable decisions shall state the alleged authorized grazing use, the grazing use expenses incurred by the United States violations of specific terms and authorized to the permittee or lessee in detecting, investigating, and resolving conditions and provisions of these during the time that the decision is violations. * ** regulations alleged to have been stayed shall not exceed the permittee’s violated, and shall state the amount due or lessee’s authorized use in the last 66. Section 4170.1–2 is revised to read under §§ 4130.8 and 4150.3 and the year during which any use was as follows: action to be taken under § 4170.1. authorized. § 4170.1±2 Failure To use. (c) The authorized officer may elect (f) Notwithstanding the provisions of not to issue a proposed decision prior to § 4.21(a) of this title pertaining to the If a permittee or lessee has, for 2 a final decision where the authorized period during which a final decision consecutive grazing fee years, failed to officer has made a determination in will not be in effect, the authorized make substantial use as authorized in accordance with § 4110.3–3(b) or officer may provide that the final the lease or permit, or has failed to § 4150.2(d). decision shall be effective upon maintain or use water base property in issuance or on a date established in the the grazing operation, the authorized §§ 4160.1±1 and 4160.1±2 [Removed] decision and shall remain in effect officer, after consultation, coordination, 62. Sections 4160.1–1 and 4160.1–2 pending the decision on appeal unless and cooperation with the permittee or are removed. a stay is granted by the Office of lessee and any lienholder of record, may 63. Section 4160.3 is amended by Hearings and Appeals when the removing from paragraph (b) the words cancel whatever amount of permitted authorized officer has made a use the permittee or lessee has failed to ‘‘on other affected interests’’ and adding determination in accordance with use. in their place the words ‘‘the interested § 4110.3–3(b) or § 4150.2(d). Nothing in public,’’ revising paragraph (a), and this section shall affect the authority of § 4170.1±3 [Removed] paragraph (c), and adding new the Director of the Office of Hearings paragraphs (d), (e), and (f) to read as and Appeals or the Interior Board of 67. Section 4170.1–3 is removed. follows: Land Appeals to place decisions in full 68. Section 4170.2–1 is revised to read § 4160.3 Final decisions. force and effect as provided in as follows: § 4.21(a)(1) of this title. (a) In the absence of a protest, the 64. Section 4160.4 is revised to read § 4170.2±1 Penal provisions under the proposed decision will become the final as follows: Taylor Grazing Act. decision of the authorized officer without further notice unless otherwise § 4160.4 Appeals. Under section 2 of the Act any person provided in the proposed decision. Any person whose interest is who willfully commits an act prohibited * * * * * adversely affected by a final decision of under § 4140.1(b), or who willfully (c) A period of 30 days following the authorized officer may appeal the violates approved special rules and receipt of the final decision, or 30 days decision for the purpose of a hearing regulations is punishable by a fine of after the date the proposed decision before an administrative law judge by not more than $500. becomes final as provided in paragraph following the requirements set out in 69. Section 4170.2–2 is revised to read (a) of this section, is provided for filing § 4.470 of this title. As stated in that as follows: an appeal and petition for stay of the part, the decision must be filed within decision pending final determination on 30 days after receipt of the final § 4170.2±2 Penal provisions under the appeal. A decision will not be effective decision or within 30 days after the date Federal Land Policy and Management Act. during the 30-day appeal period, except the proposed decision becomes final as Under section 303(a) of the Federal as provided in paragraph (f) of this provided in § 4160.3(a). Appeals and Land Policy and Management Act of petitions for a stay of the decision shall section. See §§ 4.21 and 4.470 of this 1976 (43 U.S.C. 1701 et seq.), any be filed at the office of the authorized title for general provisions of the appeal person who knowingly and willfully and stay processes. officer. The authorized officer shall commits an act prohibited under (d) When the Office of Hearings and promptly transmit the appeal and Appeals stays a final decision of the petition for stay and the accompanying § 4140.1(b) or who knowingly and authorized officer regarding an administrative record to ensure their willfully violates approved special rules application for grazing authorization, an timely arrival at the Office of Hearings and regulations may be brought before applicant who was granted grazing use and Appeals. a designated U.S. magistrate and is in the preceding year may continue at punishable by a fine in accordance with that level of authorized grazing use Subpart 4170ÐPenalties the applicable provisions of Title 18 of the United States Code, or during the time the decision is stayed, 65. Section 4170.1–1 is amended by except where grazing use in the revising the first sentence of paragraph imprisonment for no more than 12 preceding year was authorized on a (d) to read as follows: months, or both. temporary basis under § 4110.3–1(a). 70. Subpart 4180 is added to read as Where an applicant had no authorized § 4170.1±1 Penalty for violations. follows: grazing use during the previous year, or * * * * * the application is for designated (d) Any person found to have violated Subpart 4180ÐFundamentals of Rangeland ephemeral or annual rangeland grazing the provisions of § 4140.1(a)(6) after Health and Standards and Guidelines for use, the authorized grazing use shall be August 21, 1995, shall be required to Grazing Administration consistent with the final decision pay twice the value of forage consumed Sec. pending the Office of Hearings and as determined by the average monthly 4180.1 Fundamentals of rangeland health. Appeals final determination on the rate per AUM for pasturing livestock on 4180.2 Standards and guidelines for grazing appeal. privately owned land (excluding administration. 9970 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations Subpart 4180ÐFundamentals of affected Bureau of Land Management (a) and (b) of this section must address Rangeland Health and Standards and resource advisory councils, shall the following: Guidelines for Grazing Administration develop and amend State or regional (1) Maintaining or promoting standards and guidelines. The Bureau of adequate amounts of vegetative ground § 4180.1 Fundamentals of rangeland Land Management State Director will cover, including standing plant material health. also coordinate with Indian tribes, other and litter, to support infiltration, The authorized officer shall take State and Federal land management maintain soil moisture storage, and appropriate action under subparts 4110, agencies responsible for the stabilize soils; 4120, 4130, and 4160 of this part as management of lands and resources (2) Maintaining or promoting soon as practicable but not later than the within the region or area under subsurface soil conditions that support start of the next grazing year upon consideration, and the public in the permeability rates appropriate to determining that existing grazing development of State or regional climate and soils; management needs to be modified to standards and guidelines. Standards and (3) Maintaining, improving or ensure that the following conditions guidelines developed by the Bureau of restoring riparian-wetland functions exist. Land Management State Director must including energy dissipation, sediment (a) Watersheds are in, or are making provide for conformance with the capture, groundwater recharge, and significant progress toward, properly fundamentals of § 4180.1. State or stream bank stability; functioning physical condition, regional standards or guidelines (4) Maintaining or promoting stream including their upland, riparian- developed by the Bureau of Land channel morphology (e.g., gradient, wetland, and aquatic components; soil Management State Director may not be width/depth ratio, channel roughness and plant conditions support implemented prior to their approval by and sinuosity) and functions infiltration, soil moisture storage, and the Secretary. Standards and guidelines appropriate to climate and landform; the release of water that are in balance made effective under paragraph (f) of (5) Maintaining or promoting the with climate and landform and maintain this section may be modified by the appropriate kinds and amounts of soil or improve water quality, water Bureau of Land Management State organisms, plants and animals to quantity, and timing and duration of Director, with approval of the Secretary, support the hydrologic cycle, nutrient flow. to address local ecosystems and cycle, and energy flow; (b) Ecological processes, including the management practices. (6) Promoting the opportunity for hydrologic cycle, nutrient cycle, and (c) The authorized officer shall take seedling establishment of appropriate energy flow, are maintained, or there is appropriate action as soon as practicable plant species when climatic conditions significant progress toward their but not later than the start of the next and space allow; (7) Maintaining, restoring or attainment, in order to support healthy grazing year upon determining that enhancing water quality to meet biotic populations and communities. existing grazing management practices management objectives, such as meeting (c) Water quality complies with State or levels of grazing use on public lands wildlife needs; water quality standards and achieves, or are significant factors in failing to (8) Restoring, maintaining or is making significant progress toward achieve the standards and conform with enhancing habitats to assist in the achieving, established BLM the guidelines that are made effective recovery of Federal threatened and management objectives such as meeting under this section. Appropriate action endangered species; wildlife needs. means implementing actions pursuant (d) Habitats are, or are making (9) Restoring, maintaining or to subparts 4110, 4120, 4130, and 4160 enhancing habitats of Federal Proposed, significant progress toward being, of this part that will result in significant restored or maintained for Federal Category 1 and 2 Federal candidate, and progress toward fulfillment of the other special status species to promote threatened and endangered species, standards and significant progress Federal Proposed, Category 1 and 2 their conservation; toward conformance with the (10) Maintaining or promoting the Federal candidate and other special guidelines. Practices and activities status species. physical and biological conditions to subject to standards and guidelines sustain native populations and § 4180.2 Standards and guidelines for include the development of grazing- communities; grazing administration. related portions of activity plans, (11) Emphasizing native species in the (a) The Bureau of Land Management establishment of terms and conditions support of ecological function; and State Director, in consultation with the of permits, leases and other grazing (12) Incorporating the use of non- affected resource advisory councils authorizations, and range improvement native plant species only in those where they exist, will identify the activities such as vegetation situations in which native species are geographical area for which standards manipulation, fence construction and not available in sufficient quantities or and guidelines are developed. Standards development of water. are incapable of maintaining or and guidelines will be developed for an (d) At a minimum, State or regional achieving properly functioning entire state, or an area encompassing standards developed under paragraphs conditions and biological health; portions of more than 1 state, unless the (a) and (b) of this section must address (f) In the event that State or regional Bureau of Land Management State the following: standards and guidelines are not Director, in consultation with the (1) Watershed function; completed and in effect by February 12, resource advisory councils, determines (2) Nutrient cycling and energy flow; 1997, and until such time as State or that the characteristics of an area are (3) Water quality; regional standards and guidelines are unique, and the rangelands within the (4) Habitat for endangered, developed and in effect, the following area could not be adequately protected threatened, proposed, Candidate 1 or 2, standards provided in paragraph (f)(1) of using standards and guidelines or special status species; and this section and guidelines provided in developed on a broader geographical (5) Habitat quality for native plant and paragraph (f)(2) of this section shall scale. animal populations and communities. apply and will be implemented in (b) The Bureau of Land Management (e) At a minimum, State or regional accordance with paragraph (c) of this State Director, in consultation with guidelines developed under paragraphs section. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9971 (1) Fallback standards. (i) Upland functions that are appropriate to climate when needed to achieve healthy, soils exhibit infiltration and and landform; properly functioning conditions (The permeability rates that are appropriate (v) Management practices maintain or timing and duration of use periods shall to soil type, climate and landform. promote the appropriate kinds and be determined by the authorized (ii) Riparian-wetland areas are in amounts of soil organisms, plants and officer.); properly functioning condition. animals to support the hydrologic cycle, (xii) Continuous, season-long (iii) Stream channel morphology nutrient cycle, and energy flow; livestock use is allowed to occur only (including but not limited to gradient, (vi) Management practices maintain when it has been demonstrated to be width/depth ratio, channel roughness or promote the physical and biological consistent with achieving healthy, and sinuosity) and functions are conditions necessary to sustain native properly functioning ecosystems; populations and communities; appropriate for the climate and (xiii) Facilities are located away from landform. (vii) Desired species are being allowed to complete seed dissemination in 1 out riparian-wetland areas wherever they (iv) Healthy, productive and diverse of every 3 years (Management actions conflict with achieving or maintaining populations of native species exist and will promote the opportunity for riparian-wetland function; are maintained. seedling establishment when climatic (xiv) The development of springs and (2) Fallback guidelines. (i) conditions and space allow.); seeps or other projects affecting water Management practices maintain or (viii) Conservation of Federal and associated resources shall be promote adequate amounts of ground threatened or endangered, Proposed, designed to protect the ecological cover to support infiltration, maintain Category 1 and 2 candidate, and other functions and processes of those sites; soil moisture storage, and stabilize soils; special status species is promoted by the and (ii) Management practices maintain or restoration and maintenance of their promote soil conditions that support (xv) Grazing on designated ephemeral habitats; (annual and perennial) rangeland is permeability rates that are appropriate (ix) Native species are emphasized in to climate and soils; allowed to occur only if reliable the support of ecological function; estimates of production have been (iii) Management practices maintain (x) Non-native plant species are used made, an identified level of annual or promote sufficient residual vegetation only in those situations in which native growth or residue to remain on site at to maintain, improve or restore riparian- species are not readily available in the end of the grazing season has been wetland functions of energy dissipation, sufficient quantities or are incapable of established, and adverse effects on sediment capture, groundwater recharge maintaining or achieving properly perennial species are avoided. and stream bank stability; functioning conditions and biological (iv) Management practices maintain health; Bruce Babbitt, or promote stream channel morphology (xi) Periods of rest from disturbance Secretary of the Interior. (e.g., gradient, width/depth ratio, or livestock use during times of critical [FR Doc. 95–3866 Filed 2–21–95; 8:45 am] channel roughness and sinuosity) and plant growth or regrowth are provided BILLING CODE 4310±84±P federal register February 22,1995 Wednesday Procedures; FinalRule Abandoned MineReclamationGrant 30 CFRParts870,886,887,and888 Enforcement Office ofSurfaceMiningReclamationand Interior Department ofthe Part III 9973 9974 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations DEPARTMENT OF THE INTERIOR assessment on every ton of mined coal following preamble. All comments at the rate of 35 cents per ton of surface received are available for inspection in Office of Surface Mining Reclamation mined coal, 15 cents per ton of the OSM Administrative Record, room and Enforcement underground mined coal, and 10 cents 660, 800 North Capitol Street, NW, per ton for lignite. Expenditures from Washington, D.C. 20001. 30 CFR Parts 870, 886, 887, and 888 the Fund are subject to appropriation by C. Overview of Changes to Abandoned RIN No. 1029±AB72 Congress. The Fund is divided into the State/ Mine Land Grant Regulations Abandoned Mine Reclamation Grant Indian tribe and Federal shares with Over the years, Congress has made Procedures each State or Indian tribe under a several amendments to the provisions in federally approved reclamation program Title IV of SMCRA. These amendments AGENCY: Office of Surface Mining entitled to fifty percent of the have been, or are in the process of being, Reclamation and Enforcement (OSM), reclamation fees collected from coal implemented by OSM. In addition, the Interior. operations within the State or respective Department has adopted the ACTION: Final rule. Indian lands. Annually, these States/ governmentwide Grants Management SUMMARY: These regulations incorporate Indian tribes receive grants to carry out Common Rule (43 CFR part 12; subpart new grant procedures implemented by reclamation projects under their AML C). Due to these changes, certain OSM and make editorial changes to programs. States are authorized to use regulatory references are now outdated ensure consistency with the statutory up to $3 million of their State-share or refer to statutory provisions that no changes to Title IV of the Surface funds to establish State coal mine longer exist. Therefore, in this Mining Control and Reclamation Act subsidence insurance programs, and are rulemaking OSM is editing the AML (SMCRA) of 1977, Public Law 95–87. also authorized to deposit up to ten regulations in 30 CFR chapter VII, percent of their annual grants into EFFECTIVE DATE: March 24, 1995. subchapter R, to ensure that they will be special interest-bearing State trust consistent with agency practice and all FOR FURTHER INFORMATION CONTACT: accounts available for future past amendments to Title IV of SMCRA. Norman J. Hess, Office of Surface reclamation purposes or for acid mine The specific changes proposed to the Mining Reclamation and Enforcement, drainage reclamation projects. AML rules are set forth below. U.S. Department of the Interior, 1951 The Federal expenses share of the Constitution Avenue NW., Washington, Fund is allocated among a number of II. Final Rules and Disposition of D.C. 20240; Telephone: 202–208–2949. programs such as Federal emergency Comments SUPPLEMENTARY INFORMATION: projects (involving sudden and life- Part 870–Abandoned Mine Reclamation threatening situations that demand I. Background Fund-Fee Collection and Coal immediate attention), high-priority Production Reporting II. Final Rules and Disposition of Comments reclamation projects in States and III. Procedural Matters Indian lands without federally approved Section 870.5 is revised to include I. Background reclamation programs (referred to as Indian tribes in the definition of ‘‘nonprogram’’ States/Indian tribes), and ‘‘agency’’ to reflect the OSM has A. Summary of the Abandoned Mine the Small Operator Assistance Program, approved Abandoned Mine Reclamation Land (AML) Program which provides financial assistance to programs for three Indian tribes: the The AML Program was established by small coal operators to help defray Crow, Hopi, and Navajo. See Section SMCRA, Pub. L. 95–87, 30 U.S.C. 1201 certain costs associated with the surface 405(k) of Pub. L. No. 100–71, 101 Stat. et seq., in response to concern over coal mining permitting process. At 416 (1987). No comments were received extensive environmental damage caused present, 23 States and three Indian on this section which is adopted as by past coal mining activities. In effect, tribes have OSM approved abandoned proposed. the Abandoned Mine Reclamation Fund mine reclamation programs. Part 886—State Reclamation Grants (Fund) and the program it supports is the coal industry’s equivalent to the B. Proposed Rules Section 886.1 is revised by adding the ‘‘Superfund’’ administered by the OSM published proposed rules at 58 term ‘‘Indian tribes’’ and deleting Environmental Protection Agency to FR 59334–59342 (November 8, 1993) specific reference to ‘‘State reclamation address hazardous waste discharges. concerning abandoned mine plan[s]’’ to reflect that OSM has The eligibility requirements for reclamation grant procedures and approved abandoned mine reclamation reclamation of abandoned mine lands requested comments from the public. programs for three Indian tribes: the are contained in Section 404 of SMCRA. During the comment period on the Crow, Hopi, and Navajo. In every Funding of reclamation projects is proposed rules, OSM received instance in this document where Indian subject to a priority schedule. For comments from a variety of sources. tribe has been inserted, the purpose is example, ‘‘Priority 1’’ projects concern Pursuant to Executive Order 12866, to add clarity and avoid confusion by those that involve the protection of every Federal agency is required within reflecting the fact that OSM approval public health, safety, general welfare, applicable statutory limits to select has been extended to Indian tribal and property from extreme danger of the regulatory goals that maximize benefits programs as well as State programs. See adverse effects of coal mining practices. to society and to select the most Pub. L. No. 100–71, 101 Stat. 416 (1987). ‘‘Priority 3’’ projects, on the other hand, effective means to achieve these goals. No comments were received on this concern environmental problems To this end OSM has received section which is therefore adopted as associated with past coal mining comments and recommendations from proposed. practices that do not necessarily the public and representatives of coal OSM also amended § 886.3 by making constitute a public health or safety mining States/Indian tribes. certain editorial changes. Subsection (b) threat or affect the general welfare. All comments received during the has been deleted and the subsection The Fund, administered by the comment period were considered in this designation for subsection (a) removed. Secretary of the Interior through OSM, rulemaking process, and all substantive The word ‘‘allocated’’ has also been is financed by a reclamation fee comments received are addressed in the replaced with ‘‘distributed annually.’’ Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9975 This revision clarifies that AML grant statutory and regulatory provisions that evidenced by several States that already funds as ‘‘distributed’’ to States and detail eligibility requirements. This have made determinations to adjust Indian tribes. The previous use of the change avoids confusion and provides their administrative period to coincide word ‘‘allocated’’ was, in the context clearer direction for the States/Indian with the start of their fiscal year. used, inappropriate. Allocation means tribes. Section 886.13(b) is also revised in the administrative identification in the One commenter observed that the last order to implement changes made by records of OSM of monies in the Fund sentence of subsection (b) appears to the 1990 amendments to SMCRA. These for a specific purpose, e.g. identification require the use of fuels other than statutory amendments deleted a of monies for exclusive use by a State/ petroleum or natural gas where public reference to ‘‘impact assistance Indian tribe, whereas ‘‘distribution’’ is facility projects are constructed with funding’’ in Section 402(g) of SMCRA the process by which OSM makes those abandoned mine land grant funds. This (30 U.S.C. § 1232), and moved these monies available to States/Indian tribes commenter was unclear as to why such reclamation objectives to the non-coal after the monies are appropriated from a requirement has been included, and provisions in new SMCRA Section 411 the AML Fund by Congress. Throughout further felt that this restriction was (30 U.S.C. § 1240(a)). A similar change this final rule, editorial changes have inappropriate in the context of these has been made in these regulations. been made to clarify this terminology. In regulations. Additionally, and to avoid confusion, addition, the word ‘‘annually’’ is added OSM responds that this provision OSM has replaced the specific reference to reflect the current procedure that stems from Executive Order 12185 to Sections 403 and 409 (30 U.S.C. exists for AML grant distribution. which requires, to the extent §§ 1233 and 1239), of SMCRA with a States/Indian tribes with approved AML technologically and economically general reference to SMCRA. programs are eligible to submit AML feasible, that public facilities planned, OSM also has deleted paragraphs grant requests on an annual basis. constructed or modified in whole or (b)(2) and (b)(3) of § 886.13 which refer Subsection 886.3(b) has been deleted part with Federal funds (e.g., abandoned to specific AML projects. Under the due to the legislative changes mine land grant funds) should utilize revised AML grant procedures, project effectuated by the 1990 amendments to fuel other than petroleum or natural gas. specific information would be, in part, Title IV of SMCRA. See the Abandoned This provision has been in the in Abandoned Mine Land Inventory Mine Reclamation Act (AMRA) of 1990, regulations since 1982. If a State/Indian System and, in part, submitted at the Pub. L. 101–508 (November 5, 1990). All tribe determines that a public facility time of project activation. This change funds are now allocated for a specific project incorporating such provisions is will decrease certain administration purpose (see 30 U.S.C. 1232(g)). not technologically or economically costs of States/Indian tribes, thereby Accordingly, the reference to 30 CFR feasible, then compliance with this allowing more AML funds to be used for § 886.3 concerning ‘‘remaining funds’’ is requirement would not be required. specific AML reclamation purposes. no longer relevant. Subsection 886.13(a) is revised by Two commenters suggested that open- No comments concerning this section deleting any reference to administrative ended grants be allowed, in lieu of the were received from the public, thus, this grants as being separated grants in and current 3-year limitation, so as to section is adopted as proposed. of themselves. This change reflects the accommodate longer performance Section 886.10 addresses information current OSM policy of awarding all periods. collection requirements and the AML funds through a single grant. OSM accepts the comment to provide appropriate OMB clearance number. Administrative costs in this grant would flexibility in the grant period. This OSM revised and amended this section no longer require a second grant, but change is being made to accommodate by updating the data contained in the would cover only the first year of the longer performance periods where a section and including the estimated grant. need is demonstrated by a State/Indian reporting burden per response for Two commenters expressed concern tribe. Since no grant period is specified complying with the information on behalf of their members regarding the in the statute, OSM believes that it has collection requirements. The revision requirement to begin the 12-month the requisite authority under Subsection also provides OSM and OMB addresses administrative period at the beginning 413(a) of SMCRA to alter the current 3- were comments regarding the of the grant since it may not coincide year grant period. OSM acknowledges, information collection requirements with the grantee’s fiscal year. The however, that longer grant periods may may be sent. No comments were proposed rule would require grantees to pose certain processing and fiscal received on this section which is shift their construction grant period to problems. Accordingly, OSM is adopted as proposed. coincide with the fiscal year, thereby planning to examine this concept, Section 886.11 is amended to reflect losing much of the favorable developing proposed specific that OSM has approved Abandoned construction season. The commenter procedures for an open-ended grant Mine Reclamation plans for three Indian suggests that grantees be allowed to program and testing the procedures by tribes: the Crow, Hopi, and Navajo. No assign the 12-month performance period means of selected State programs before comments were received on this section, for the administrative portion of a grant making a final policy decision. which is thus adopted as proposed. to any 12-month period within the first The existing § 886.14 includes a Section 886.12(a) is amended by 18 months of a grant. This additional reference to Section 405(f) of SMCRA, removing the word ‘‘State.’’ This flexibility would allow the grantee’s relating to project information required amendment would reflect that Tribal administrative cost period to coincide from applicants. Since § 886.14 is programs have been approved by OSM. with it’s fiscal year, while the revised to relate solely to budget Section 886.12(b), which outlines the construction portion of a grant can be information, submission of information permissible uses for grant moneys under scheduled to coincide with the relating to Section 405(f) now is this part, is amended by revising the construction season. discussed in the preamble to § 886.16. subsection to reflect specific changes OSM has not accepted this comment Section 886.14 is revised to reflect made by the 1990 amendments to Title and does not believe that a change to the that OSM will not require annual budget IV of SMCRA. See Pub. L. No. 101–508. proposed rule language is required since estimates. This clarifies that States/ Rather than listing certain reclamation sufficient flexibility exists under the Indian tribes should no longer submit objectives, OSM is referencing specific current system and the proposed rule as site specific information to OSM as part 9976 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations of this process. The budget information days (under the new § 886.15(b)) to Specifically, § 886.16(a) is revised by called for by this revision would approve or disapprove the application. deleting reference to Director approval provide information that OSM needs to This change reflects OSM’s view that 30 of an agency’s grant application. This is formulate its own budget requests to days could be an insufficient amount of an editorial change; the deleted Congress. In addition, the deletion of time for it to evaluate revised language is superfluous in light of the the word ‘‘administrative’’ is because applications. OSM considers 60 days to fact that a ‘‘grant agreement’’ is in fact under the new procedures outlined in be a more realistic time frame in which the document that represents approval this proposed rule, administrative grants to execute this task. of the agency’s grant application. would no longer be separate grants. Several commenters stated that in the Therefore, the existence of a grant Other changes to this section are prior Subsection 886.15(b), OSM should agreement denotes that OSM has in fact editorial in nature and are designed to define what constitutes a minor revision approved the agency’s grant application. reflect existing OSM practice and to the grant application. In their view, Paragraph (3) of § 886.16(a) requires procedure. these minor revisions should not start that the grant agreement include project Since no comments were received on the 60-day clock for OSM review and specific amounts. This paragraph is this section, it is adopted as proposed. approval. In addition, one commenter deleted in order to simplify the AML Section 886.15(c) is renumbered as provided the opinion that the 60-day granting process. Specifically, the § 886.15(a) and revised by replacing the review and approval process should be deletion of paragraph (a)(3) provides word ‘‘allocated’’ with ‘‘distributed’’ in shortened to a period of 30 days. that individual projects will no longer order to clarify that AML funds are OSM does not agree with these be included in the grant agreement. ‘‘distributed’’ to States/Indian tribes comments. It does not believe that a 30- Instead, this information will be annually. See the discussion above of day period provides sufficient time to submitted to OSM Field Offices on a proposed revisions to § 886.3. In review and process grants and agree project-by-project basis before OSM addition, the previous paragraphs upon specific details with States/Indian approves the expenditure of funds for (c)(1)–(6), which refer to specific forms, tribes. Accordingly, OSM has not acted individual projects. Current provisions are deleted in favor of a generalized upon that part of the comment to reduce of these regulations (See recordkeeping instruction to use approved forms. This the grant processing time period. and reporting requirements discussed in change eliminates the need to amend Furthermore, because of the variation in §§ 886.23 and 886.24), combined with these regulations if there needs to be a eligible grant activities and projects, the National Environmental Policy Act change in form requirements, e.g., when OSM does not believe that the States/ (NEPA) compliance process discussed a new Federal law is passed. Indian tribes would be better served by in revised Subsection 886.16(d) below, Section 886.15(a) is renumbered as attempting to further define what is or alleviate the need for approval of § 886.15(b) and amended by revising is not a ‘‘minor revision.’’ By trying to specific project amounts in the grant subsection (a) which allows OSM 90 list or define items that may or may not agreement. days in which to act upon a grant occur, one assumes the risk of being Paragraph (a)(4) of § 886.16 requires application. This amendment would over or under inclusive in the class of that the grant agreement include require OSM action on a grant items described. This ultimately leads to allowable transfers of funds. Likewise, application within 60 days of submittal. further administrative problems paragraph (b) of 886.16 requires Director This change promotes the overall goal of between the States/Indian tribes and approval of agency assignment of expediting the AML granting process. OSM. The agency’s goal has been and functions and funds. Paragraph (a)(4) is In the interests of greater precision will continue to be to process all grant removed, and paragraph (b) is revised to and clarification, OSM has also made an applications within the 60-day period give the States/Indian tribes more editorial change to the redesignated contemplated by the regulations. Where flexibility in administering their AML Subsection 886.15(b) which eliminates revisions are required and are submitted grant monies. The revision to paragraph ‘‘* * * act upon * * *’’ and substitutes accurately and timely by the States/ (b) would alleviate the need for Director ‘‘* * * approve or disapprove * * *’’. Indian tribes, OSM will attempt in good approval prior to assignment by the The use of this language is consistent faith either to meet or take action States/Indian tribes. In the view of with the wording of subsequent quicker than the 60-day time period. It OSM, States/Indian tribes are in the best sections. must be understood, however, that if position to dictate which entities are One commenter stated that the prior there are time delays in obtaining the better suited to carry out day-to-day § 886.15(a) provides that grants shall be necessary revisions, it may not be reclamation activities. With OSM approved by the Director. The possible in all cases to meet the 60-day approval no longer necessary, paragraph commenter pointed out that under the period. However, it is a goal that OSM (a)(4) becomes irrelevant and is current system, grants are approved by will continue to strive toward. therefore removed. the Field Office Director. The Section 886.15(d) is revised by Section 886.16(c) is also deleted and commenter asked whether this inserting the requirement that States/ paragraph (d) is revised and renumbered regulatory language signals a change Indian tribes comply with all Federal as paragraph (c) to reflect changes in the from the current practice. laws in order to apply for grants under procedures required to effectuate a grant OSM has not changed the regulatory this Part. The deletion of the reference agreement between OSM and a State/ language that provides authority to the to OSM implementing regulations is Indian tribe. This amendment reflects a Director to approve grants to the States/ merely an editorial change. change in the technical administration Indian tribes. OSM points out, however, Section 886.15(f) is removed because of the grant agreement process. that the Director has formally delegated the requirements of this subsection are Specifically, this amendment requires this authority to the Field Office level. redundant. Specifically, the information that the Director sign and transmit only Section 886.15(b), which has been called for in this subsection is also two copies of the grant agreement to the redesignated as § 886.15(c), gives OSM required when States/Indian tribes agency, instead of the four required 30 days to approve or disapprove a submit reclamation plans for OSM prior to amendment. In addition, this revised application, is revised to allow approval. See 30 CFR 884.13(c)(7). amendment changes the time period for OSM to treat the revised application as Section 886.16 is amended to make the agency to execute the grant from 3 an original. OSM would then have 60 some editorial and substantive changes. weeks to 20 days. For purposes of this Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9977 section, the agency is now required to to expend funds under the grant. The requirements, is revised by deleting sign the agreement and return it to OSM actual initiation of each project is the subparagraphs (i) and (ii) and inserting within the 20-day period. Since the action that might have a significant language specifying that notification is grant, when signed by the Director, effect on the environment. Under these necessary for changes that will result in would obligate funds, subsection (c) procedures, NEPA documentation an extension of the grant period, or states that failure of the State/Indian would be developed as a normal part of require additional funds, or make a tribe to execute the grant within 20 days project planning rather than up front in budget transfer from administrative would result in a deobligation of the a grant application. Although OSM field costs to project costs or vice versa. This total Federal grant amount. Thus, if the office approval would still be required revision eliminates the need to notify signed agreement is not returned to before the States/Indian tribes are OSM of project-specific changes, but OSM by the close of business on the authorized to proceed with individual retains the mandates of the Grants 20th day after the designated OSM projects, OSM believes that the overall Management Common Rule. This official signs it and OSM has not management of the grant by the States/ simplifies the grant process; OSM granted an extension, OSM will initiate Indian tribes is enhanced by this action. would not require project-by-project deobligation procedures. One commenter stated that approval of State/Indian tribe AML Several commenters have stated that § 886.16(d) should be revised to clarify projects at the time of initial grant OSM should allow liberal extensions of that the provisions of the National approval. Thus, a grant amendment the 20-day period to execute a grant Environmental Policy Act of 1969 apply would not be necessary merely due to agreement based upon reasonable to coal AML projects only and not to changes in individual projects that do justification provided by the State/ noncoal projects. not effect the overall grant period, Indian tribe. Otherwise, commenters OSM disagrees with this comment. funding, or cost category. note, grantees could be faced with NEPA applies to both coal and noncoal Several commenters stated that automatic premature deobligations projects. NEPA compliance must occur § 886.17(a)(2) should be revised to simply because they are unable to for every project. clarify that budget transfers, from obtain the appropriate approvals and Prior to the time that authorization to administrative costs to project costs to authorizing signatures within the 20 expend funds for construction activities indirect costs and vice versa, require calendar day period. is requested, information specific to the notification only and do not require a OSM has accepted this comment and project is provided to the OSM field grant amendment. made a change in the language of office by the State/Indian tribe. The OSM disagrees with the comments. § 886.16(c) to provide that an extension required information is provided on the The Grants Management Common Rule, of time may be approved verbally or in Form OSM–76, Abandoned Mine Land (43 CFR part 12, subpart C.30(c)(3)), writing by the individual delegated the Problem Area Description (OMB No. requires that when a grant provides authority to sign grant agreements. 1029–0081). This information conforms funding for both construction and Specifically, the word ‘‘formally’’ has to that required in section 405(f) of nonconstruction activities, the grantee been deleted to allow an oral or other SMCRA. less formal mechanism of approval. Several commenters asked for must obtain prior written approval from OSM notes that the States/Indian tribes clarification on whether the filing of the awarding agency before making any are the primary delivery mechanism for Form OSM–76 with grant applications fund or budget transfers from the AML program. The actual signing of applies to both coal and noncoal nonconstruction to construction or vice the grant agreements is not a complex projects. Commenters objected to having versa. This requirement is being matter; OSM will endeavor to continue to file a Form OSM–76 with noncoal implemented by the grantee formally to keep it as uncomplicated as possible. projects. amending its approved budget. In addition, one commenter has Although unfunded noncoal problem Likewise, paragraphs (b)(1) and requested that the 20-day period of areas/projects do not have to be subparagraphs (b)(3) (i)–(iii) of section § 886.16(c) be lengthened to 45 days to included in the AML inventory, if such 886.17, which require OSM approval for allow sufficient time to execute grant projects are funded, OSM is required budget revisions of $5,000 or 5 percent agreements. under section 403(c) of SMCRA to of the grant amount, except in certain OSM has declined to extend the 20- establish procedures for, and to track, enumerated circumstances, are removed day period based upon experience over accomplishments. This is being by these amendments. Thus, the the past decade that reflects that there implemented for all Title IV projects requirements in paragraphs (b)(1) and has been few if any problems through States/Indian tribes submitting (b)(3) (i)–(iii) of section 886.17 are encountered by the involved parties in information on Form OSM–76. deleted in favor of the new instructions meeting the specified time period. It is noted that budgets are ‘‘revised’’ in revised paragraph 886.17(a)(2). This New §§ 886.16(d) and 886.16(e) are and grants are ‘‘amended.’’ Because of is a conforming change that is brought added to clarify that compliance with the method of approving an AML grant, about by the Grants Management NEPA is required before AML grant a budget by itself is not required to be Common Rule and would codify funds may be used by the State/Indian revised. Thus, the title of Section 886.17 existing practices. tribe and that a completed Form OSM– would be changed from ‘‘Grant and In addition, paragraph (b)(2) of 76 must be submitted prior to the use budget revisions’’ to read ‘‘Grant section 886.17 is revised to allow OSM of funds for construction activities. amendments.’’ 30 days, instead of the current 15 days, Currently, OSM grant procedure Section 886.17 is amended by revising in which to either approve or requires NEPA compliance at the paragraph (a)(1) which refers to OMB disapprove the amendment. Paragraph construction grant award stage. Since Circular A–102. This editorial change (b)(2) is redesignated as subsection (b). the issuance of a grant need not contain properly refers to the Grants The proposed 30-day time limit reflects authorization of expenditures for any Management Common Rule. This OSM’s evaluation of the time needed to specific project, that action should not editorial change has been made complete its review of the amendment. require NEPA compliance. Instead, throughout this rule. In regard to paragraph 886.17(b)(2), NEPA compliance is deferred until the Paragraph (a)(2) of § 886.17, which one commenter stated that they prefer State/Indian tribe requests authorization discusses events that trigger notification 15 days instead of the specified 30-day 9978 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations period to approve or disapprove grant Subsection 886.18(b) is replaced by a 886.19 to state that the agency shall amendments. new subsection (b). The new subsection arrange for an independent audit Based on past experience, OSM is of (b) incorporates remedial measures pursuant to guidance provided by the the opinion that a 30-day period outlined in the Grants Management General Accounting Office and the provides a reasonable and sufficient Common Rule. Office of Management and Budget. This time to review and approve or Also, the current subsection (b) is revision is being done in a general disapprove a grant amendment. revised and redesignated as subsection fashion because the applicable circulars Accordingly, OSM has not acted upon (c). This new subsection (c) contains and other guidance documents could be this comment and will endeavor to editorial changes to indicate that the modified and/or combined in the future. process all grant amendments as quickly ‘‘OSM official delegated grant signature Section 886.20, which outlines as possible within the 30-day period authority’’ is the person who would give administrative procedures for agencies contemplated by the regulation. notice of grant reduction, suspension, or under this Part, is revised by replacing Section 886.18, discussing conditions termination of a grant. In addition, references to OMB Circular A–102 with for grant reduction, suspension, and subsection (c) requires certified mail the Grants Management Common Rule. termination, is amended by revising transmittal of the required written This change will alleviate the need for paragraph (a)(2) to make a minor notice. Subsection (c) also adds a new rulemaking to effectuate every minor editorial change to the reference from 30 paragraph (7) that would incorporate the change in form requirements. No CFR 872.11(b)(2) to 30 CFR 872.11(b)(1) concept of mutual termination of a grant comments were received on this section and 872.11(b)(2). This is a conforming as outlined in the Grants Management which is adopted as proposed. change made necessary by rulemaking Common Rule. Section 886.21, outlining allowable to implement the AMRA, Pub. L. 101– Likewise, the current subsection costs, is revised by deleting the work 508. 886.18(c) is redesignated as subsection ‘‘project’’ in paragraph (a). As discussed In the interest of clarity, OSM has (d) and revised to clarify that State or throughout this rulemaking, these decided to substitute the word Tribal appeals of OSM decisions to amendments eliminate certain project ‘‘obligate’’ for ‘‘expend’’ in paragraph reduce, suspend, or terminate a grant specific grant procedures under the 886.18(a)(2). Paragraph 402(g)(1)(D) of are evaluated to the Director of OSM. AML program. The revision will have SMCRA uses the term ‘‘expended,’’ but This rule provides that the Director little substantive effect since previous the term ‘‘obligate’’ is deemed to be a would have 30 days from receipt to grants, although containing project- more technically correct financial term decide the appeal. The Director’s specific information, were for overall to reflect an irrevocable commitment of decision could then be appealed to the reclamation activities. funds by a grantee. Secretary. One commenter has noted that These appeals would be processed in In regard to paragraph 886.18(a)(2), ‘‘acquisition of land’’ is an allowable accordance with existing OSM one commenter observed that if a cost. That commenter has stated that procedures. OSM has elected not to grantee fails to expend distributed funds OSM may want to clarify § 886.21(a) to codify the details of this process since within a 3-year grant period, those note that acquisition is limited to lands the procedures may be amended as funds will be expended by the Secretary affected by coal and noncoal mining, necessary. to accomplish the purposes of Title IV. One commenter stated that, before i.e., does not include public facility The commenter disagrees with this reduction or termination of a grant, the projects authorized under Section 411(f) section due to annual distribution grantee should be allowed to complete of SMCRA. decreases and anticipated future the appeal process provided in OSM has not made any change to decreases due to the amendments to Subsection 886.18(d). Hence, paragraph § 886.21. This is a general provision that SMCRA. The commenter feels that all 886.18(c)(2) should be revised to addresses grants as a whole; if specific distributed funds should be utilized provide for the initiation and limitations exist in Title IV of SMCRA, only by the respective State/Indian tribe completion of the appeals process those limitations would have to be for the purposes of Title IV. before any final action is taken to reduce complied with as required. Except for the editorial change or terminate a grant. Section 886.22(a) contains some previously mentioned, OSM does not OSM accepts this comment and notes editorial changes in order to properly believe that any changes should be that no regulatory language change is reference the Grants Management made to this regulation. Section required because the authority to appeal Common Rule. In addition, subsection 402(g)(1)(D) of SMCRA specifically a reduction, suspension or termination (d), mandating that drawdowns be made provides for the Secretary to use moneys of a grant exists in paragraph 886.18(d). by the agency as closely as possible to granted, but not expended, within 3 Under this paragraph the Director must the time of making disbursements, is years after the grant award. Note decide the appeal within 30 days of revised by requiring that when advances however, that even though the language receipt. Further, a grantee can then are appropriate, they should be made as of this provision has not been modified, appeal the Director’s decision to the closely as possible to the actual time of OSM has always been able to work with Secretary who also has 30 days to act disbursement. This change will reflect the States/Indian tribes on expending upon the appeal. current practice and procedure. No appropriated funds. Section 886.19, which explains comments were received on this section Paragraph (a)(3) of section 886.18 is requirements for an audit, is revised to which is thus adopted as proposed. also revised by specifying that certain remove an outdated reference to OMB Section 886.23 is amended by Indian tribes may receive reclamation Circular A–102. replacing the semi annual reporting funds without having an approved Two commenters requested further requirement with an annual reporting regulatory program. Under the 1987 clarification of Section 886.19 by requirement. In the view of OSM, amendments to SMCRA, the Crow, incorporating appropriate reference to annual reporting is sufficient to ensure Hopi, and Navajo Indian tribes do not specific published Office of proper Federal oversight. The AML have an approved Title V program prior Management and Budget guidance. program has been in effect in most to being eligible to receive AML funds. In order to provide guidance to States for over a decade. This change See 30 U.S.C. 1235(k) (1988). grantees, OSM has revised section represents the growing maturity of these Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9979 programs and the confidence that OSM many projects may not begin until the New § 886.25(e) is a conforming has in their management. end of the first construction season due change that would incorporate the In order to maintain consistency in to fiscal year constraints, some projects language of deleted subsection the regulatory language, OSM is making may require funding from more than 888.11(d). a technical change and thereby deleting one grant. Consequently, some projects No comments were received on this reference to ‘‘cooperative agreements’’ may not be completed when grant section, which is therefore adopted as in § 886.23. The term ‘‘grant’’ as used in closeout reports are due, and a Form proposed. this regulation includes financial OSM–76 sent at that time would be Part 887—Subsidence Insurance assistance in the form of grants and/or incomplete. Because of this situation, Program Grants cooperative agreements. the commenters suggest that OSM needs Several commenters stated their to define ‘‘project completion’’ within Section 887.3 discusses the Director’s support of the OSM proposal in the framework of this section. authority to approve or disapprove § 886.23(a) to change the reporting OSM agrees in part. However, the grants for subsidence insurance up to a requirements to an annual cycle rather term ‘‘project completion’’ refers to total of $3 million in States with than semi annual. when the actual construction/ approved reclamation plans. The OSM agrees with the commenters that reclamation work is completed. This reference to section 402(g)(2) of SMCRA this change will assist in reducing could involve more than one grant; is revised to properly reference section administrative burdens on grantees and likewise, it means that if the 402(g)(1) in light of the 1990 recognizes the superior performance of reclamation is completed at a site after amendments to SMCRA. The reference the States/Indian tribes in administering one year of the grant, the Form OSM– to § 872.11(b)(2) is changed to a more their AML programs over the years. 76 is due at that time. This is necessary general reference to § 872.11(b) in order In addition, existing paragraph (a) and to fulfill the mandate of Section 403(c) to reference some explanatory language (b) are revised by deleting references to requiring that the inventory be updated found in that paragraph. specific form requirements. This is annually with all completed projects. Section 887.10 deals with information accomplished by deleting a portion of Section 886.24 is amended by revising collection requirements and their paragraph (a), all of paragraphs (a)(1)– subsection (a) which requires agencies submission to OMB for approval. The (2), and all of paragraph (b). In place of to keep records in accordance with collection of this information will not be these references to specific forms, this OMB Circular A–102. OSM is revising required until it has been approved by amendment directs agencies to submit this subsection to properly reference the OMB. OSM has revised and amended reporting forms specified by OSM. This Grants Management Common Rule, this section by updating the data change eliminates the need for which supersedes Circular A–102 for contained in the section and including rulemaking procedures to amend these purposes of this Part. the estimated reporting burden per regulations in every instance when form Section 886.24(b), which mandates response for complying with the requirements change. In addition, many certain recordkeeping requirements for information collection requirements. of the forms required by this section subgrantees and contractors, is deleted. The revision also provides the OSM and anticipate the need for project-specific Designation of subsection (a) is removed OMB addresses where comments information. In light of the changes that and paragraph (1) and (2) are regarding the information collection are made by these amendments, specific redesignated as subsections (a) and (b) requirements may be sent. information no longer needs to be respectively. In OSM’s judgment, the Section 887.11 discusses eligibility for submitted to OSM in advance. Some information called for by this subsection subsidence insurance program grants project-specific information would be would be redundant in light of the under this Part. This section is revised provided to OSM at the time a grantee requirements of the Grants Management by making minor editorial changes. The requests approval for expenditures of Common Rule. reference to § 872.11(b)(2) is changed to funds for individual projects. No comments were received on this a more general reference to § 872.11(b) Additional detailed information would section. This section is being adopted as in order to reference some explanatory also be available in the grantee’s files. proposed. language found in that paragraph. In A revised paragraph (b) is added to OSM adds a new § 886.25 to simplify addition, the reference to SMCRA § 886.23 which requires, at the the existing regulation by including section 402(g)(2) is revised to properly completion of a grant, agency special Indian land procedures reference section 402(g)(1) in light of the submission of closeout reports as (formerly part 888) in part 886. 1990 amendments to SMCRA. specified by OSM. Specifically, New § 886.25(a) discusses the Section 887.12 is amended by subsection (b) requires submission of Director’s authority to mitigate replacing all references to OMB Circular Form OSM–76 upon project completion. emergencies or extreme dangers A–102 with references to the Grants This submission is necessary to comply resulting from past coal mining Management Common Rule. As with the requirement in section 403(c) practices and to perform other discussed above, this change reflects the of SMCRA that on a regular basis OSM reclamation on Indian lands not subject fact that the Grants Management note on its inventory those projects to an approved reclamation program. Common Rule supersedes OMB Circular completed under Title IV. New § 886.25(b) is a conforming A–102 for the purposes of this Part. Section 886.23(c) is deleted, since the change that would incorporate the In addition, § 887.12(b), which requirement to submit Form OSM–76 language of deleted subsection specifies the contents of a grant upon project completion is now 888.11(a). application under this Part, is revised by contained in revised subsection (b), as New § 886.25(c) is a conforming adding a reference to the procedures of noted above. change that would incorporate the 30 CFR part 886. This amendment Several commenters observed that language of deleted subsection advances the goal of simplifying the § 886.23(b) states that a completed Form 888.11(b). AML grants process by providing a OSM–76 shall be submitted upon New § 886.25(d) is a conforming uniform set of procedures for the grant project completion, not grant expiration. change that would incorporate the application process. The effect of this Because of the 3-year limitation for language of deleted subsection amendment is to combine the process of construction grants and the fact that 888.11(c). applying for reclamation grants under 9980 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations part 886 and for subsidence insurance Executive Order 12778 on Civil Justice general draftsmanship of regulations set program grants under this Part. Reform forth by the Attorney General, with the Section 887.13 is amended by This rule has been reviewed under the concurrence of the Director of the Office replacing reference to OMB Circular A– applicable standards of Section 2(b)(2) of Management and Budget, that are 102 with reference to the Grants of Executive Order 12778, Civil Justice determined to be in accordance with the Management Common Rule. As Reform (56 FR 55195). In general, the purposes of the Executive Order? The Attorney General and the Director discussed above, this change is made requirements of Section 2(b)(2) of of the Office of Management and Budget throughout these amendments. Executive Order 12778 are covered by have not issued any guidance on this the preamble discussion of this rule. No comments were received in regard requirement. to any of the above sections contained Additional remarks follow concerning in part 887, hence these sections are individual elements of the Executive List of Subjects adopted as proposed. Order: A. What is the preemptive effect, if 30 CFR Part 870 Part 888—Indian Reclamation Programs any, to be given to the regulation? Reporting and recordkeeping requirements, Surface mining, OSM deletes part 888 and The rule specifies procedures for the Underground mining. incorporates its provisions into new Federal grants program under Title IV of section 886.25. See the discussion of SMCRA. This rule is not intended to 30 CFR Part 886 proposed revisions of section 886.25 preempt State law except that to the extent States wish to participate in the Grant programs—natural resources, above. No comments were received Reporting and recordkeeping concerning this deletion. program, they must comply with the Federal rules. requirements, Surface mining, III. Procedural Matters B. What is the effect on existing Underground mining. Federal law or regulations, if any, Paperwork Reduction Act 30 CFR Part 887 including all provisions repealed or Grant programs—natural resources, The collections of information modified? Insurance, Surface mining, contained in this rule have been This rule modifies the AML grant Underground mining. approved by the Office of Management process regulations pursuant to SMCRA and Budget under 44 U.S.C. 3501 et seq. as described herein, and is not intended 30 CFR Part 888 and assigned clearance numbers 1029– to modify the rules or provisions of any Indian land, Surface mining, 0059, 1029–0090, and 1029–0107. other Federal statute. The preceding Underground mining. discussion of this rule specifies the Author Federal regulatory provisions that are Dated: January 18, 1995. Bob Armstrong, The principal author of this rule is affected by this rule. Norman J. Hess, Division of Abandoned C. Does the rule provide a clear and Assistant Secretary—Land and Minerals Management. Mine Land Reclamation, Office of certain legal standard for affected Surface Mining Reclamation and conduct rather than a general standard, Accordingly, 30 CFR parts 870, 886, Enforcement, 1951 Constitution Avenue while promoting simplification and 887, and 888 are amended as set forth NW., Washington, D.C. 20240; burden reduction? below: The standards established by this rule Telephone: 202–208–2949. CHAPTER VIIÐOFFICE OF SURFACE are as clear and certain as practicable, MINING RECLAMATION AND Executive Order 12866 given the complexity of the topics ENFORCEMENT, DEPARTMENT OF THE covered and the mandates of SMCRA. This rule has been reviewed under INTERIOR SUBCHAPTER RÐABANDONED D. What is the retroactive effect, if MINE LAND RECLAMATION Executive Order 12866. any, to be given to the regulation? Regulatory Flexibility Act This rule is not intended to have PART 870ÐABANDONED MINE retroactive effect. RECLAMATION FUNDÐFEE In accordance with the Regulatory E. Are administrative proceedings COLLECTION AND COAL Flexibility Act, 5 U.S.C. et seq., the required before parties may file suit in PRODUCTION REPORT Department of the Interior has court? Which proceedings apply? Is the 1. The authority citation for part 870 determined that this rule will not have exhaustion of administrative remedies is revised to read as follows: a significant economic effect on a required? substantial number of small entities. No administrative proceedings are Authority: 30 U.S.C. 1201 et seq., as amended. National Environmental Policy Act required before parties may file suit in court challenging the provisions of this 2. Section 870.5 is amended by OSM has prepared a final rule under Section 526(a) of SMCRA, 30 revising the definition of ‘‘Agency’’ to environmental assessment (EA) of this U.S.C. 1276(a). Prior to any judicial read as follows: rule, and has made a finding that this challenge to the application of this rule, rule will not significantly affect the however, administrative procedures § 870.5 Definitions quality of the human environment must be exhausted. * * * * * under Section 102(2)(C) of NEPA, 42 F. Does the rule define key terms, Agency means the State agency U.S.C. 4332(2)(C). A finding of no either explicitly or by reference to other designated by the Governor, or in the significant impact (FONSI), has been regulations or statues that explicitly case of Indian tribes, the Tribal agency approved for this final rule in define those items? designated by the equivalent head of an accordance with OSM procedures under Terms that are important to the Indian tribe, to administer the State/ NEPA. The EA and FONSI are on file in understanding of this rule are set forth Indian tribe reclamation program and to the OSM Administrative Record, room in 30 CFR 870.5 and 887.5. receive and administer grants under this 660, 800 N. Capitol Street NW., G. Does the rule address other part. Washington, DC. important issues affecting clarity and * * * * * Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9981 3. The heading of part 886 is revised reducing the burden, to the Office of use by the Director in the preparation of to read as follows: Surface Mining Reclamation and his/her requests for appropriation of Enforcement, Information Collection moneys for reclamation grants. OSM PART 886ÐSTATE AND TRIBAL Clearance Officer, 1951 Constitution shall determine the schedule for RECLAMATION GRANTS Avenue NW., Room 640 NC, submitting this information on an 4. The authority citation for part 886 Washington, D.C. 20240; and the Office annual basis. Funds required to prepare is revised to read as follows: of Management and Budget, Paperwork this submission may be included in the Reduction Project (1029–0059), grants under 30 CFR 886.12. Authority: 30 U.S.C. 1201 et seq., as Washington D.C. 20503. 12. Section 886.15 is amended by amended. 8. Section 886.11 is revised to read as revising and redesignating paragraph (a) 5. Section 886.1 is revised to read as follows: as (b); by revising and redesignating follows: paragraph (b) as (c); by revising and § 886.11 Eligibility for grants. redesignating paragraph (c) as (a); by § 886.1 Scope. A State/Indian tribe is eligible for revising paragraph (d); and by removing This part sets forth procedures for grants under this part if it has a paragraph (f) to read as follows: grants to States/Indian tribes having an reclamation plan approved under part approved plan for the reclamation of 884 of this chapter. § 886.15 Grant application procedures. eligible lands and water and other 9. Section 886.12 is amended by (a) An agency shall use application activities necessary to carry out the plan revising paragraphs (a) and (b) to read forms and procedures specified by as approved. OSM’s ‘‘Final Guidelines as follows: OSM. A preapplication is not required for Reclamation Programs and Projects’’ if the total of the grant requested is (45 FR 14810–14819, March 6, 1980) § 886.12 Coverage and amount of grants. within the amounts distributed to the should be used as applicable. (a) An agency may use moneys State/Indian tribe annually by the 6. Section 886.3 is revised to read as granted under this Part to administer the Director based on the Congressional follows: approved reclamation program and to appropriation. carry out the specific reclamation (b) OSM shall approve or disapprove § 886.3 Authority. activities included in the plan and a grant application within 60 days of The Director is authorized to approve described in the annual grant receipt. If OSM approves an agency’s or disapprove applications for grants agreement. The moneys may be used to grant application, a grant agreement under this part if the total amount of the cover costs to the agency for services shall be prepared and signed by the grants does not exceed the moneys and materials obtained from other State agency and the Director. appropriated by the Congress. Such and Federal agencies or local (c) If the application is not approved, moneys are distributed annually to the jurisdictions according to OMB Circular OSM shall inform the agency in writing States/Indian tribes. A–87. of the reasons for disapproval and may 7. Section 886.10 is revised to read as (b) Grants shall be approved for propose modifications if appropriate. follows: reclamation and eligible lands and The agency may resubmit the water in accordance with 30 U.S.C. 1234 § 886.10 Information collection. application or appropriate revised and 1241 and 30 CFR 874.12, 875.12, portions of the application. OSM shall The collections of information and 875.14, and in accordance with the process the revised application as an contained in 30 CFR part 886 have been priorities stated in 30 U.S.C. 1233 and original application. approved by the Office of Management 1241 and 30 CFR 874.13 and 875.15. To (d) The agency shall agree to perform and Budget under 44 U.S.C. 3501 et seq. the extent technologically and the grant in accordance with the Act, and assigned clearance number 1029– economically feasible, public facilities applicable Federal laws and regulations, 0059. The information will be collected that are planned, constructed, or and applicable OMB and Treasury to meet the requirements of Section 405 modified in whole or in part with Circulars. of the Act, which allows the Secretary abandoned mine land grant funds * * * * * to grant funds to States/Indian tribes should use fuel other than petroleum or 13. Section 886.16 is amended by pursuant to Section 402(g) and which natural gas. revising paragraphs (a) and (b); by are necessary to implement the State/ * * * * * removing paragraph (c); by Indian tribe reclamation program. This 10. Section 886.13 is revised to read redesignating paragraph (d) as (c); by information will be used by the OSM to as follows: revising redesignated paragraph (c); by ensure that the State/Indian tribe redesignating paragraph (e) as (f); and by complies with the Grants Management § 886.13 Grant period. adding new paragraphs (d) and (e) to Common Rule (43 CFR part 12, subpart (a) The period for administrative costs read as follows: C) and sound principles of grants of the authorized agency should not management. The obligation to respond exceed the first year of the grant. § 886.16 Grant agreements. is required to obtain a benefit in (b) The Director shall approve a grant (a) OSM shall prepare a grant accordance with Pub. L. 95–87. Public period on the basis of the information agreement that includes: reporting burden for this information is contained in the grant application (1) A statement of the work to be estimated to average 4 hours per showing that projects to be funded will covered by the grant; and response, including the time for fulfill the objectives of 30 U.S.C. 1201 (2) A statement of the approvals of reviewing instructions, searching et seq. specific actions required under this existing data sources, gathering and 11. Section 886.14 is revised to read subchapter or the conditions to be met maintaining the data needed, and as follows: before approvals can be given if moneys completing and reviewing the collection are included in the grant for these of information. Send comments § 886.14 Annual submission of budget actions. regarding this burden estimate or any information. (b) The State/Indian tribe may assign other aspect of this collection of The agency shall cooperate with OSM functions and funds to other Federal, information, including suggestions for in the development of information for State, or local agencies. The grantee 9982 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations agency shall retain responsibility for paragraphs (c) as (d) respectively; by or reduction of the grant in writing by overall administration of that grant, adding a new paragraph (b); and by certified mail, return receipt requested. including use of funds and reporting. revising the newly redesignated (4) Upon termination, the agency shall (c) The Director shall sign two copies paragraphs (c) and (d) to read as follows: refund or credit to the Fund that of the agreement and transmit them remaining portion of the grant money either by certified mail, return receipt § 886.18 Grant reduction, suspension, and not encumbered. However, the agency termination. requested, or by hand delivery, to the shall retain any portion of the grant that agency for countersignature. The grant (a) * * * is required to meet contractual constitutes an obligation of Federal (2) If an agency fails to obligate commitments made before the effective funds at the time the Director signs the moneys distributed and granted within date of termination. agreement. The agency shall have 20 three years from the date of grant award, (5) Upon receiving notification of calendar days from the date of the or within an extension granted under OSM’s intent to terminate the grant, the Director’s signature to execute the § 886.13 or § 886.17, OSM may reduce agency shall not make any new agreement in order to accept its terms the grant in accordance with § 872.11 commitments without OSM’s approval. and conditions. Unless an extension of (b)(1) and (b)(2) of this subchapter. (6) OSM may allow termination costs time is approved by the Director, failure (3) If an agency fails to implement, as determined by applicable Federal to execute the agreement within 20 enforce, or maintain an approved State cost principles listed in Office of calendar days shall result in an regulatory program or any part thereof Management and Budget Circular A–87. immediate deobligation of the total and, as a result, the administration and (7) Either OSM or the agency may Federal grant amount. enforcement grant provided under part terminate or reduce a grant if both (d) Although the funds are obligated 735 of this chapter is terminated, OSM parties agree that continuing the when the Director signs the agreement, shall terminate the grant awarded under program would not produce beneficial for any expenditure requiring this part. This paragraph does not apply results commensurate with the further compliance with the National to Indian tribes who receive reclamation expenditure of funds. Such a Environmental Policy Act of 1969 funds without having an approved termination for convenience shall be (NEPA) (42 U.S.C. 4321 et seq.), funds regulatory program. handled as an amendment and shall be may not be used by the State/Indian * * * * * signed by the OSM official delegated tribe until all actions necessary to (b) Remedies for noncompliance. If a grant signature authority. ensure compliance with NEPA are grantee or subgrantee materially fails to (d) Appeals. (1) Within 30 days of taken. comply with any term of an award, OSM’s decision to reduce, suspend, or (e) The agency shall submit a whether stated in a Federal statute or terminate a grant, the agency may completed Form OSM–76 (Abandoned regulation, an assurance in a State plan appeal the decision to the Director. Mine Land Reclamation Problem Area or application, a notice of award, or (i) The agency shall include in the Description) showing proposed funding elsewhere, OSM may take one or more appeal a statement of the decision being for any planned non-emergency project the following actions, as appropriate in appealed and the facts that the agency work to the applicable OSM field office the circumstances: believes justify a reversal or before it may use funds for construction (1) Temporarily withhold cash modification of the decision. activities. payments pending correction of the (ii) The Director shall decide the * * * * * deficiency by the grantee or subgrantee; appeal within 30 days of receipt. 14. Section 886.17 is revised to read (2) Disallow (that is, deny both use of (2) Within 30 days of the Director’s as follows: funds and matching credit for) all or decision to reduce, suspend, or terminate a grant, the agency may § 886.17 Grant amendments. part of the cost of the activity or action appeal the decision to the Secretary. (a) Grant amendments. (1) A grant not in compliance; (3) Wholly or partly suspend or (i) The agency shall include in the amendment is a written alteration of the appeal a statement of the decision being terms or conditions of the grant terminate the current award for the grantee’s or subgrantee’s program; appealed and the facts that the agency agreement, whether accomplished on believes justify a reversal or the initiative of the agency or OSM. All (4) Withhold further grant awards for the program; or modification of the decision. procedures for grant amendments shall (ii) The Secretary shall act upon the conform to those in 43 CFR part 12, (5) Take other remedies that may be legally available. appeal within 30 days of receipt. subpart C. 16. Section 886.19 is revised to read (c) Grant reduction, suspension, and (2) The agency shall promptly notify as follows: the Director, or the Director shall termination procedures. (1) The OSM promptly notify the agency, in writing official delegated grant signature § 886.19 Audit. of events or proposed changes that may authority shall give the agency at least The agency shall arrange for an require a grant amendment. The agency 30 days written notice of intent to independent audit pursuant to guidance shall notify the Director in advance of reduce, suspend, or terminate a grant. provided by the General Accounting changes that will result in an extension OSM must send this notice by certified Office and the Office of Management of the grant period or require additional mail, return receipt requested. OSM and Budget. funds, or when the agency plans to shall include in the notice the reasons 17. Section 886.20 is revised to read make a budget transfer from for the proposed action and the as follows: administrative costs to project costs or proposed effective date of the action. vice versa. (2) OSM shall afford the agency § 886.20 Administrative procedures. (b) OSM shall either approve or opportunity for consultation and The agency shall follow disapprove the amendment within 30 remedial action before reducing or administrative procedures governing days of its receipt. terminating a grant. accounting, payment, property, and 15. Section 886.18 is amended by (3) The OSM official delegated grant related requirements contained in 43 revising paragraphs (a)(2) and (a)(3); by signature authority shall notify the CFR part 12, subpart C and use the redesignating paragraphs (b) and (c) as agency of the termination, suspension, property form specified by OSM and Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9983 approved by the Office of Management arising from past mining practices and comments regarding this burden and Budget. begin reclamation of other areas estimate or any other aspect of this 18. Section 886.21 is amended by determined to have high priority on collection of information, including revising paragraph (a) to read as follows: such lands. suggestions for reducing the burden, to (b) The Director is authorized to the Office of Surface Mining § 886.21 Allowable costs. receive proposals from Indian tribes for Reclamation and Enforcement, (a) Allowable reclamation costs projects that should be carried out on Information Collection Clearance include actual costs of construction, Indian lands subject to this Section and Officer, 1951 Constitution Avenue, operation and maintenance, planning to carry out these projects under parts N.W., Room 640 NC, Washington, D.C. and engineering, construction 872 through 882 of this chapter. 20240; and the Office of Management inspection, other necessary (c) For reclamation activities carried and Budget, Paperwork Reduction administrative costs, and up to 90 out under this section on Indian lands, Project (1029–0107), Washington, D.C. percent of the costs of the acquisition of the Director shall consult with the 20503. land. Indian tribe and the Bureau of Indian 26. Section 887.11 is revised to read * * * * * Affairs office having jurisdiction over as follows: 19. Section 886.22 is amended by the Indian lands. revising paragraphs (a) and (d) to read (d) If a proposal is made by an Indian § 887.11 Eligibility for grants. as follows: tribe and approved by the Director, the A State is eligible for grants under this Tribal governing body shall approve the part if it has a State reclamation plan § 886.22 Financial management. project plans. The costs of the project approved under part 884 of this chapter (a) The agency shall account for grant may be charged against the money and if it has funds available under funds in accordance with the allocated to OSM under § 872.11(b)(5). § 872.11(b) of this chapter and Section requirements of 43 CFR part 12, subpart (e) Approved projects may be carried 402(g)(1) of SMCRA, as amended, 30 C. Accounting for grant funds must be out directly by the Director or through U.S.C. 1232. accurate and current. such arrangements as the Director may 27. Section 887.12 is amended by * * * * * make with the Bureau of Indian Affairs revising paragraph (a), the introductory (d) When advances are made, they or other agencies. sentence of paragraph (b), and should be made as closely as possible to paragraph (e) to read as follows: the actual time of the disbursement. PART 887ÐSUBSIDENCE INSURANCE PROGRAM GRANTS * * * * * § 887.12 Coverage and amount of grants. 20. Section 886.23 is revised to read 23. The authority citation for part 887 (a) An agency may use moneys as follows: is revised to read as follows: granted under this part to develop, administer, and operate a subsidence Authority: 30 U.S.C. 1201 et seq. § 886.23 Reports. insurance program to insure private (a) For each grant, the agency shall 24. Section 887.3 is revised to read as property against damages caused by annually submit to OSM reporting forms follows: subsidence resulting from underground specified by OSM. § 887.3 Authority. coal mining. The moneys may be used (b) At the completion of each grant, to cover costs to the agency for services the agency shall submit a completed The Director is authorized to approve and materials obtained from other State Form OSM–76 and any other closeout or disapprove applications for grants up and Federal agencies or local reports specified by OSM. to a total amount of $3,000,000 for each jurisdictions according to OMB Circular 21. Section 886.24 is amended by State with an approved State A–87. Moneys granted may be used to revising paragraph (a) and deleting its reclamation plan provided moneys are cover capitalization requirements and designation as (a); revising paragraph available under § 872.11(b) of this initial reserve requirements mandated (a)(1) and redesignating as (a); chapter and Section 402(g)(1) of Pub. L. by applicable State law provided use of redesignating paragraph (a)(2) as (b); 95–87 (30 U.S.C. 1232). such moneys is consistent with the 25. Section 887.10 is revised to read and by removing the existing paragraph Grants Management Common Rule (43 as follows: (b) to read as follows: CFR part 12, subpart C). § 886.24 Records. § 887.10 Information collection. (b) The grant application shall be submitted under the procedures of 30 The agency shall maintain complete The collections of information CFR part 886 and contain the following: records in accordance with 43 CFR part contained in 30 CFR part 887 have been 12, subpart C. This includes, but is not approved by the Office of Management * * * * * limited to, books, documents, maps, and and Budget under 44 U.S.C. 3501 et (e) Insurance premiums shall be other evidence and accounting seq., and assigned clearance number considered program income and must procedures and practices sufficient to 1029–0107. The information will be be used to further eligible subsidence reflect properly— used to grant funds to State regulatory insurance program objectives in (a) The amount and disposition of all authorities and Indian tribes to accordance with 43 CFR part 12, subpart assistance received for the program; and administer their subsidence insurance C. (b) * * * program. Response is required to obtain 28. Section 887.13 is revised to read 22. Section 886.25 is added to read as a benefit in accordance with 30 U.S.C. as follows: follows: 1201 et seq. Public reporting burden for this information is estimated to average § 887.13 Grant period. § 886.25 Special Indian lands procedures. 40 hours per response, including the The grant funding period shall not (a) This section applies to Indian time for reviewing instructions, exceed eight years from the time the lands not subject to an approved Tribal searching existing data sources, grant is approved by OSM. Unexpended reclamation program. The Director is gathering and maintaining the data funds remaining at the end of any grant authorized to mitigate emergency needed, and completing and reviewing period shall be returned according to situations or extreme danger situations the collection of information. Send the 43 CFR part 12, subpart C. 9984 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations PART 888Ð[REMOVED] 29. Part 888 is removed. [FR Doc. 95–4259 Filed 2–21–95; 8:45 am] BILLING CODE 4310±05±M federal register February 22,1995 Wednesday Examination ofWorkingPlaces;Notices Training forSelectedSupervisors;and Development andWithdrawals;FirstAid Program PolicyLetters:PublicInputin Mine SafetyandHealthAdministration Department ofLabor Part IV 9985 9986 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices DEPARTMENT OF LABOR comment on the designated draft policy. elsewhere in this edition of the Federal The public will have a reasonable Register. Mine Safety and Health Administration period of time to comment. This period Dated: February 16, 1995. of time will allow persons time to J. Davitt McAteer, Public Input in Development of formulate comments without impeding Program Policy Letters; Withdrawal of Assistant Secretary for Mine Safety and timely issuance of the policy statement. Health. Program Policy Letters MSHA also will make efforts to notify [FR Doc. 95–4340 Filed 2–16–95; 4:31 pm] AGENCY interested persons such as company : Mine Safety and Health BILLING CODE 4510±43±M Administration, Labor. safety directors and miners’ ACTION: Notice. representatives directly. This will further assure that those individuals First Aid Training for Selected SUMMARY: The Mine Safety and Health have the opportunity to comment on Supervisors Administration (MSHA) is inaugurating issues of immediate concern to them a process to voluntarily solicit public and provide MSHA useful feedback AGENCY: Mine Safety and Health comment on certain draft policy from the mining community at large. Administration, Labor. statements before the statements are MSHA will also experiment with other ACTION: Notice. final. MSHA also announces the methods of encouraging input from withdrawal of the following Program affected miners and operators including SUMMARY: The Mine Safety and Health Policy Letters (PPL): PPL No. P94–IV–2, public meetings in the mining Administration (MSHA) is voluntarily First Aid Training For Selected communities and use of local media requesting comments on a draft Program Supervisors; PPL No. P94–IV–4, outlets. MSHA will consider the public Policy Letter concerning first aid Ventilation Plan; and PPL No. P94–IV– comments before taking final action on training for selected supervisors which 5, Examination of Working Places. the policy statement. is required by 30 CFR 56/57.18010. FOR FURTHER INFORMATION CONTACT: MSHA emphasizes that it is not DATES: Written comments must be Marvin Nichols, Administrator for Coal legally required to submit its draft submitted on or before April 10, 1995. Mine Safety and Health, 703–235–9423, policy statements for public comment. ADDRESSES: Send written comments to or Vernon Gomez, Administrator for The Agency has determined as a matter Administrator, Metal and Nonmetal Metal and Nonmetal Mine Safety and of discretion that public participation in Mine Safety and Health, 4015 Wilson Health, 703–235–1565. the policy setting process may be Boulevard, Room 728, Arlington, beneficial as discussed above. The Virginia 22203, Fax: 703–235–9173. SUPPLEMENTARY INFORMATION: Agency will select the new or revised Commenters are encouraged to send Public Input in Program Policy Letters Program Policy Letters that it considers commends on a computer disk along MSHA updates its policies for appropriate for public comment. with their original comments in hard enforcement of safety and health Policies which respond to safety and copy. regulations through Program Policy health emergencies or pertain to routine, FOR FURTHER INFORMATION CONTACT: Letters. These Program Policy Letters non-controversial matters will not be Richard H. Judd, Mine Safety and are not regulations and impose no new considered for public comment. This Health Specialist, Metal and Nonmetal regulatory requirements. The Program new process is subject to change by the Mine Safety and Health, 703–235–8480. Policy Letters are Agency Agency as experience and SUPPLEMENTARY INFORMATION: MSHA interpretations of what existing MSHA circumstances dictate. This policy updates its policies for enforcement of regulations require and explain how making process is not rulemaking; safety and health regulations through regulations work or apply. Program therefore, Agency decisions made Program Policy Letters (PPLs). These Policy Letters are used by MSHA and pursuant to this process are not subject PPLs are Agency interpretations of what the mining community, including mine to judicial review under section 101(d) existing MSHA regulations require; they operators, miners, and equipment of the Federal Mine Safety and Health are not new regulations. Therefore, PPLs manufacturers, as guidance in Act of 1977. When enforcement actions do not impose new requirements, but determining how best to comply with are taken consistent with a Program explain or clarify how regulations work MSHA safety and health regulations. Policy Letter they are subject to review or apply in a particular situation. These Once adopted, the policy statements are by the independent Federal Mine Safety PPSs are used by MSHA inspectors, published in the MSHA program policy and Health Review Commission. miners, mine operators, and mining equipment manufacturers as guidance manual and given wide distribution Withdrawal of Program Policy Letters both within the Agency and in the in determining how best to comply with public. In initiating the new process for MSHA regulations. Once adopted, the The mining community has expressed public input to Program Policy Letters, policy statements are published in the concerns about MSHA’s process for MSHA is withdrawing three recent MSHA program policy manual and interpreting mandatory standards. Program Policy Letters. These Program given wide distribution. MSHA believes that compliance may be Policy Letters are PPL No. P94–IV–2 (30 To increase public participation on improved if the interested public has CFR 56/57.18010—First Aid Training selected draft PPLs, MSHA is the opportunity to provide input and so For Selected Supervisors), PPL No. P94– voluntarily requesting comments and participate in the development of IV–4 (30 CFR 57.8520—Ventilation suggestions from the public, especially policy. Plan), and PPL No. P94–IV–5 (30 CFR from people who would be directly Accordingly, MSHA is announcing a 56/57.18002—Examination of Working affected by the PPLs. By this notice, new process to voluntarily solicit public Places). MSHA is requesting comments on a comment on certain draft Program Two of those Program Policy Letters draft PPL concerning first aid training Policy Letters. MSHA will publish a (First Aid Training for Selected for selected supervisors, as required by Notice in the Federal Register Supervisors and Examination of 30 CFR 56/57.18010. These standards explaining the need for the draft policy Working Places) are the subject of were first promulgated as advisory statement and requesting public notices soliciting public comment standards in July 1969 and became Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices 9987 mandatory in August 1973. MSHA will certified instructors also meets the with their original comments in hard consider all timely submitted comments requirements of the standard, provided copy. before taking final action on the PPL. that the topics, as detailed above, are FOR FURTHER INFORMATION CONTACT: included in the course. 30 CFR Part 48 Draft Policy Roderick Breland, Chief, Division of training requirements address only a Safety, Metal and Nonmetal Mine Safety Background limited form of first aid training for all and Health, 703–235–8480. Standard 56/57.18010, First Aid miners and, therefore, is unacceptable SUPPLEMENTARY INFORMATION: MSHA Training, states, ‘‘Selected supervisors for compliance with 30 CFR 56/ updates its policies for enforcement of shall be trained in first aid. First aid 57.18010. safety and health regulations through training shall be made available to all A certificate of course completion Program Policy Letters (PPLs). These interested employees.’’ provided by the trainer or the PPLs are Agency interpretations of what The intent of the standard is to recognized training organization, or a existing MSHA regulations require; they provide first aid capability at each mine written statement by the mine operator are not new regulations. Therefore, PPLs so that timely and appropriate treatment certifying course completion, will serve do not impose new requirements, but as evidence to MSHA of current may be given in the event a miner is explain or clarify how regulations work training. injured. Questions raised by industry or apply in a particular situation. These and labor indicate that compliance and Refresher Training PPLs are used by MSHA inspectors, enforcement guidance is needed to In order for first aid capability to miners, mine operators, and mining clarify the requirements of the remain effective, it is necessary for equipment manufacturers as guidance regulation. In a recent five year period, persons who have received the training in determining how best to comply with more than 2,200 violations of the to maintain an adequate competency MSHA regulations. Once adopted, the standard have been cited. Many of these level and, thus, remain ‘‘trained.’’ policy statements are published in the citations were issued under Refresher training prevents the loss or MSHA program policy manual and circumstances where no one at the mine diminution of competency over a period given wide distribution. site had been given first aid training. To increase public participation on Therefore, MSHA is considering issuing of time. When a recognized course is used to comply with the standard, selected draft PPLs, MSHA is a PPL on this subject. It is MSHA’s voluntarily requesting comments and policy that a sufficient number of retraining should be conducted within the recommended frequency and course suggestions from the public, especially supervisors must be selected and from people who would be directly trained to ensure that a responsible content established by the providing organization. affected by the PPLs. By this notice, person is available to administer first MSHA is requesting comments on a aid at the mine site on all working Availability Of Training For Employees draft PPL concerning examination of shifts. Availability of training for interested working places, as required by 30 CFR Selected Supervisors To Be Trained employees may be announced by 56/57.18002. These safety standards posting the course schedule on the mine were first promulgated as advisory Selected supervisors can include shift standards in July 1969 and became bosses, foremen, superintendents, or bulletin board, or by notifying employees through other means. The mandatory in August 1979. MSHA will other designated individuals in a consider all timely submitted comments supervisory position. In order to provide course should be given at a location and before taking final action on the PPL. first aid assistance to sick or injured time convenient to employees. employees, trained supervisors should Dated: February 16, 1995. Draft Policy be selected to provide coverage on each J. Davitt McAteer, Background working shift. Assistant Secretary for Mine Safety and Standard 56/57.18002, Examination of Course Content Health. [FR Doc. 95–4342 Filed 2–16–95; 4:31 pm] Working Places, contains the following The word ‘‘trained’’ refers to a BILLING CODE 4510±43±M requirements: performance capability. A person (a) A competent person designated by the trained in first aid must be able to operator shall examine each working place at provide the necessary level of treatment Examination of Working Places least once each shift for conditions which consistent with accepted first aid may adversely affect safety or health. The practices. The first aid course for AGENCY: Mine Safety and Health operator shall promptly initiate appropriate supervisors, therefore, should include, Administration, Labor. action to correct such conditions. at a minimum, the following ACTION: Notice. (b) A record that such examinations were fundamental topics which are consistent conducted shall be kept by the operator for SUMMARY: with those of nationally recognized The Mine Safety and Health a period of one year, and shall be made available for review by the Secretary or his courses: patient assessment, artificial Administration (MSHA) is voluntarily requesting comments on a draft Program authorized representative. ventilation, control of bleeding, control (c) In addition, conditions that may present of shock, wounds and dressings, burns Policy Letter concerning examination of working places which is required by 30 an imminent danger which are noted by the and scalds, musculoskeletal injuries, person conducting the examination shall be CFR 56/57.18002. and handling and transportation. brought to the immediate attention of the DATES: Written comments must be operator who shall withdraw all persons Accepted Courses submitted on or before April 1, 1995. from the area affected (except persons Training courses which include the ADDRESSES: Send written comments to referred to in section 104(c) of the Federal fundamentals identified above, and are Administrator, Metal and Nonmetal Mine Safety and Health Act of 1977) until the sponsored or sanctioned by a recognized Mine Safety and Health, 4015 Wilson danger is abated. organization (American Red Cross, Boulevard, Room 728, Arlington, The intent of the standard is to National Safety Council, etc.) meet the Virginia 22203, Fax: 703–235–9173. require regular close examination of the requirements of 30 CFR 56/57.18010. Commenters are encouraged to send total mining environment to find and First aid training conducted by MSHA- comments on a computer disk along eliminate potential hazards caused by 9988 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Notices unsafe conditions and practices that Therefore, for an operator to be in competent individual for hazardous may be present. However, in a 5-year compliance, each working place conditions and any hazardous period, MSHA has investigated 17 examination record must include conditions would need to be promptly serious and fatal accidents where information essential and necessary to corrected. A hazardous condition is any working place examinations were not accomplish the intent of the standard: condition or practice which poses a risk conducted or were inadequately (1) the date and time the examination of harm to a miner or could result in a conducted. In a significant number of was made; (2) by whom the examination violation of a mandatory health or safety these accidents, failure to conduct was made; (3) the area(s) examined; and standard. working place examinations was a (4) any hazardous conditions found. Standard 56/57.18002 does not apply contributing cause. Therefore, rigorous These records would need to be made to access or other roads not directly working place examinations are a available upon request to the Secretary’s involved in the mining process, fundamental accident prevention tool authorized representative. administrative office building, parking for the mining industry. The Federal Competent Person lots, lunchrooms, toilet facilities, or Mine Safety and Health Act of 1977 inactive storage areas. Isolated, (Mine Act) holds mine operators A ‘‘competent person,’’ according to abandoned, or idle areas of mines or responsible for preventing the existence 30 CFR 56/57.2, is ‘‘* * * a person mills need not be examined, unless of unsafe conditions and practices and having abilities and experience that persons perform work in these areas the correction of hazards before miners fully qualify him to perform the duty to during the shift. are exposed to them. MSHA is revising which he is assigned.’’ This definition its policy concerning 30 CFR 56/ includes any person who is fully Frequency of Examination 57.18002 to better assure that operators qualified to perform the assigned task. conduct rigorous working place Examinations may be made by a mine The standard requires working place examinations. foreman, a mine superintendent, examinations to be performed ‘‘at least another person associated with mine once each shift.’’ Although the standard Recordkeeping management, or a miner, provided the permits the examination to be made at The standard requires a record that person is fully qualified to perform the any time during the shift, MSHA working place examinations were task. Fully qualified means having had strongly recommends in keeping with conducted. Those records are required adequate experience in the task or the remedial intent of the Mine Act and to be retained by the mine operator for having been trained in the recognition the standard that this examination be one year, and made available to the of hazards in the working place. conducted before work begins on a shift Secretary of Labor or his authorized or before work is performed in an area. Working Place representative. MSHA has accepted To be in compliance with the standard, annual certification of work place The phrase ‘‘working place’’ is the mine operator must promptly examinations as an alternative to the defined in 30 CFR 56/57.2 as ‘‘* ** initiate the correction of any hazardous standard’s recordkeeping requirement, any place in or about a mine where conditions that are found. If an when such certification is made work is being performed.’’ As used in imminent danger is found during an available at the time of an inspection. the standard, the phrase applies to those examination, the operator must also However, given the serious and fatal locations in a mine or mill where withdraw all persons from the affected accidents that have occurred, annual persons work during a shift in the area except those necessary for the certification of work place examinations mining or milling processes. The correction of the condition. will no longer be accepted for working place for an individual Dated: February 16, 1995. compliance. assigned to perform maintenance or To be effective, work place repair duties, for example, is the area J. Davitt McAteer, examinations must be timely, made by where the individual performs the Assistant Secretary for Mine Safety and a competent person, made in the areas maintenance or repair work. For an Health. where miners work, and hazardous operator to be in compliance, that area [FR Doc. 95–4341 Filed 2–16–95; 4:31 pm] conditions must be promptly corrected. would need to be examined by a BILLING CODE 4510±43±M federal register February 22,1995 Wednesday Proposed Rule Oranges, Tangelos,andTangerines; Grade Standards:FloridaGrapefruit, 7 CFRPart51 Agricultural MarketingService Agriculture Department of Part V 9989 9990 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: The U.S. Presently, in the U.S. Standards for Department of Agriculture is issuing Grades of Florida Grapefruit, U.S. Agricultural Marketing Service this proposed rule in conformance with Standards for Grades of Florida Oranges Executive Order 12866. and Tangelos, and U.S. Standards for 7 CFR PART 51 Pursuant to the requirements set forth Grades of Florida Tangerines, the U.S [Docket Number FV±93±301] in the Regulatory Flexibility Act (5 Fancy, U.S. No. 1, and U.S. No. 2 grades U.S.C. 601 et. seq.), the Administrator of are required to be ‘‘free from’’ bruises, Florida Grapefruit, Florida Oranges the Agricultural Marketing Service and the U.S. No. 3 grade is required to and Tangelos, and, Florida Tangerines; (AMS) has determined that this action be ‘‘free from very serious damage.’’ Grade Standards will not have a significant economic ‘‘Free from’’ being any amount of impact on a substantial number of small AGENCY: bruising would be scored against the Agricultural Marketing Service, entities. This proposed rule for the USDA. U.S. Fancy, U.S. No. 1 and U.S. No. 2 revision of U.S. Standards for Grades of grades. However, it would have to be ACTION: Proposed rule. Florida Grapefruit, U.S. Standards for ‘‘free from very serious damage’’ to be SUMMARY: This rule would revise the Grades of Florida Oranges and Tangelos, scored against the U.S. No. 3 grade. United States Standards for Grades of and U.S. Standards for Grades of Florida There currently is no definition of very Florida Grapefruit, United States Tangerines will not impose substantial serious damage by bruising in the Standards for Grades of Florida Oranges direct economic cost, recordkeeping, or standards, and this may create and Tangelos, and, United States personnel workload changes on small confusion in the marketplace. Therefore, Standards for Grades of Florida entities, and will not alter the market it is proposed to delete ‘‘free from’’ Tangerines. The recommended revisions share or competitive position of these bruises and add ‘‘free from injury,’’ would: Redefine terms to more clearly entities relative to large businesses. In ‘‘free from damage,’’ and, ‘‘free from reflect current cultural and marketing addition, under the Agricultural serious damage’’ to the U.S. Fancy, U.S. practices; add and revise the grades so Marketing Act of 1946, the use of these No. 1 and U.S. No. 2 grades, as to make them uniform and consistent standards is voluntary. respectively (‘‘free from very serious with each other and other recently This proposed rule has been reviewed damage’’ will remain as it is currently revised U.S. grade standards; revise the under Executive Order 12778, Civil in the U.S. No. 3 grade). The terms will existing tolerances and the application Justice Reform. This action is not be defined in the ‘‘classification of of tolerances from allowing specific intended to have retroactive effect. This defects’’ section. The definitions for numbers of defective fruit to proposed rule will not preempt any injury, damage, and serious damage by percentages of defective fruit; revise the State or local laws, regulations, or bruising are the same due to the severity size sections to give industry greater policies, unless they present an of the defect, thereby, bruising will be irreconcilable conflict with this rule. flexibility in marketing and packaging scored as serious damage when There are no administrative procedures new varieties of fruit; and, delete ‘‘segment walls are collapsed, or rag is which must be exhausted prior to any references to a visual aid which is no ruptured and juice sacs are ruptured,’’ judicial challenge to the provisions of longer available. The Agricultural and scored as very serious damage when Marketing Service (AMS), in the rule. Agencies periodically review existing ‘‘fruit is split open, peel is badly cooperation with industry, and other regulations. An objective of the review watersoaked, or rag is ruptured and interested parties develops and is to ensure that the grade standards are juice sacs are ruptured causing a mushy improves standards of quality, serving their intended purpose, the condition affecting all segments more condition, quantity, grade and language is clear, and the standards are than 3/4 inch at bruised area or the packaging in order to facilitate consistent with AMS policy and equivalent of this amount, by volume, commerce by providing buyers, sellers, authority. when affecting more than one area on and quality assurance personnel The United States Standards for the fruit.’’ uniform language and criteria for Grades of Florida Grapefruit, the United Currently, in the U.S. Standards for describing various levels of quality and States Standards for Grades of Florida Grades of Florida Grapefruit, and U.S. condition as valued in the marketplace. Oranges and Tangelos, and the United Standards for Grades of Florida Oranges DATES: Comments must be postmarked States Standards for Grades of Florida and Tangelos, the U.S. Fancy, U.S. No. or courier dated on or before April 24, Tangerines were last revised in 1, U.S. No. 2, and U.S. No. 3 grades are 1995. December 1980. The Florida Citrus required to be ‘‘free from cuts not ADDRESSES: Interested parties are Packers (FCP), which represents the healed.’’ It is proposed to delete this invited to submit written comments majority of citrus growers and packers requirement, and add the requirement concerning this proposal. Comments in Florida, have requested that the ‘‘free from unhealed skin breaks’’ to the must be sent to the Standardization standards be revised in order to bring above grades. This will encompass all Section, Fresh Products Branch, Fruit them into conformity with current types of fresh skin breaks no matter and Vegetable Division, Agricultural cultural, harvesting and marketing what the cause, and will create Marketing Service, U.S. Department of practices. The FCP contends that due to uniformity among the three standards. Agriculture, P.O. Box 96456, Room 2056 new improved varieties, that changes to It is proposed to delete the ‘‘growth South Building, Washington, DC 20090– the current standards are necessary. crack’’ requirements from the U.S. 6456. Comments should make reference The main purpose of the proposal is Fancy, U.S. No. 1, U.S. No. 2, and U.S. to the date and page number of this set forth in order to bring the standards No. 3 grades of Florida Grapefruit, and issue of the Federal Register and will be into conformity with current harvesting Florida Oranges and Tangelos. Any made available for public inspection in and marketing practices. In addition, the unhealed growth crack would be treated the above office during regular business standards have been reviewed for need, as an ‘‘unhealed skin break,’’ and any hours. clarity, and effectiveness as part of a amount would be scored. Healed growth FOR FURTHER INFORMATION CONTACT: periodic review. Accordingly, we cracks would be considered as a ‘‘scar’’ Frank O’Sullivan, at the above address propose to amend the regulations as and scored based on the scar definitions or call (202) 720–2185. discussed below. in the ‘‘classification of defects’’ section. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9991 This will also create more uniformity standards are based on a percentage of In the U.S. Standards for Grades of among the three standards. defects rather than number of defective Florida Grapefruit, the definitions for The U.S. No. 1 Bright, U.S. No. 1 fruit permitted. Also, separate ‘‘smooth texture,’’ ‘‘fairly smooth Golden, and, U.S. No. 2 Bright grades tolerances for shipping point and en texture,’’ and ‘‘slightly rough texture’’ were added to the U.S. Standards for route or at destination are included to would be revised to include definitions Grades of Florida Tangerines in order to allow for more defects of a progressive for thickness of skin. In the past there give industry more flexibility in the nature, consistent with perishability. was confusion as to what was marketing of tangerines and to create The current standards contain tables considered thin skin, fairly thin skin, uniformity (the other standards already specifying the total number of fruit and slightly thick skin, however, with have these grades included). permitted in individual samples. definitions for these terms the confusion All of the grades in the U.S. Standards However, it is proposed that the would be alleviated. for Grades of Florida Grapefruit, U.S. tolerances be changed from specific The definitions for ‘‘green spots’’ in Standards for Grades of Florida Oranges number of defective fruit to percentages the ‘‘classification of defects’’ section and Tangelos, and U.S. Standards for of defective fruit, thereby eliminating are proposed to be aggregate areas Grades of Florida Tangerines were put the existing tables. Therefore, it is instead of number of spots. ‘‘Green in the same order for the purposes of proposed that an ‘‘Application of spots’’ are currently too restrictive, in uniformity and ease of use. Also, grades Tolerances’’ section be inserted in each that they allow not more than 10 spots which previously referenced ‘‘Tables’’ of the regulations to provide percentage for damage, and not more than 25 spots for the allowable number of defective limitations of defective fruit in for serious damage, regardless of the fruit would be changed to percentages. individual samples. This is done to size of the fruit. All of the other defects Currently, in the U.S. No. 1 Bronze create clarity and consistency among in the standards vary with the size of grades there is a requirement that ‘‘all other U.S. standards. the fruit, larger areas allowed on larger fruit must show some discoloration.’’ In The FCP requested that the ‘‘Size’’ fruit and smaller areas allowed on application, this means, that if one fruit sections of the standards be revised to smaller fruit, therefore, this is too did not have any discoloration on it at allow greater flexibility in the packing stringent. It is proposed to determine all, the whole load and/or lot would not of numerous varieties of fruit in various ‘‘green spots’’ based on an aggregate meet a U.S. No. 1 Bronze grade. This types and sizes of containers. It is area; aggregate area being, clustering the requirement is too restrictive because proposed that the ‘‘size’’ section be spots into the area specified for the one fruit with no discoloration puts a revised as follows: ‘‘fruits shall be fairly grade and commodity. If the ‘‘green load and/or lot of citrus out of grade. uniform in size and shall be packed in spots,’’ when clustered together are Therefore, it is proposed that ‘‘all fruit containers according to approved and outside of the specified area it will be must show some discoloration’’ be recognized methods; fairly uniform in scored as a defect, keeping in mind that deleted from the requirements of U.S. size means that not more than 9 percent larger areas are allowed on larger fruit No. 1 Bronze grades. However, at least of the grapefruit, 10 percent of the and smaller areas on smaller fruit. For 30 percent of the fruit shall have one- oranges, tangelos, or tangerines, per example, ‘‘green spots’’ on a 41⁄8 inch third of its surface affected by sample may vary more than one-half diameter grapefruit, if they were discoloration, predominately rust mite inch in diameter; and, in order to allow clustered into a circle of more than 3⁄4 type, is still part of the requirements for for variations incident to proper sizing, inches, the ‘‘green spots’’ would be a U.S. No. 1 Bronze grade. not more than 10 percent of the samples considered damaged. The definition of ‘‘poorly colored’’ in any lot may fail to meet the The definitions for ‘‘oil spotting’’ and was moved from the requirements of the requirements of size.’’ ‘‘Approved and ‘‘skin breakdown’’ in the ‘‘classification U.S. No. 3 grade in the U.S. Standards recognized methods’’ means that the of defects’’ sections in all standards are for Grades of Florida Grapefruit, and fruit size will be determined at shipping being revised. The ‘‘oil spotting’’ would U.S. Standards for Grades of Florida point using specific pack patterns in a be changed by deleting the number of Oranges and Tangelos to the standard 4/5 bushel container, and that spots affected, which is thought to be ‘‘definition’’ section to create greater containers shall be well filled. Well too restrictive for perfectly edible fruit; uniformity and consistency among the filled being when at least one-half of the and, increasing the aggregate area Florida citrus standards. top layer fruit is not more than one-half allowed, in order to bring the The unclassified designations would inch below the top or two inches above definitions into conformity with other be eliminated in each standard because the top of the container. Each sample citrus standards. The definitions for it is not a grade and only serves to show would be allowed three grapefruit or ‘‘skin breakdown’’ would be revised to that no grade has been applied to the five oranges, tangelos, and tangerines to bring them more in line with ‘‘oil lot. Since this designation is rarely used vary more than one-half inch in spotting,’’ as it is often difficult to and may create some confusion in the diameter within a sample and still meet distinguish between ‘‘oil spotting’’ and marketplace, it should be discontinued. fairly uniform in size, provided that the ‘‘skin breakdown’’ in its early stages. It is proposed that the tolerances for entire lot averages not more than ten Due to the similarity in defects caused defects and discoloration be determined percent. If the lot does not meet these by hail, thorn scratches, and scars, it is based on percentages rather than a requirements it would fail to meet the proposed that the definitions in the specific number of defective fruit, in size requirements, however, it could ‘‘classification of defects’’ sections be order to create greater ease of use within still meet the grade requirements as revised to score them all on the same the marketplace. Currently, if applicants these are separate. basis as ‘‘scars.’’ Although they will still do not have a copy of the standards with Definitions for ‘‘well colored,’’ ‘‘fairly be described as ‘‘hail,’’ ‘‘thorn the table specifying the number of fruit well colored,’’ ‘‘slightly colored,’’ scratches,’’ or ‘‘scars,’’ they will all be permitted in a load and/or lot, they will ‘‘reasonably well colored,’’ and ‘‘poorly scored on the same basis. not know if a load and/or lot of citrus colored’’ would be revised to include In the U.S. Standards for Grades of meets a specified grade. Therefore, these ‘‘color characteristic for the variety’’ in Florida Grapefruit, because sprouted percentages will create a more common order to allow more flexibility in seeds undermine the quality of fruit trading language, and greater uniformity marketing varieties of fruit with regardless of whether the sprouts are due to the fact that most of our current different colors. green or not, the ‘‘sprouting’’ definitions 9992 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules in the ‘‘classification of defects’’ section 51.756 U.S. No. 2 Bright. (5) Scars; would be revised by deleting reference 51.757 U.S. No. 2. (6) Skin breakdown; and, to ‘‘green’’ sprouts and revising the 51.758 U.S. No. 2 Russet. (7) Thorn scratches. allowable lengths for sprouts. However, 51.759 U.S. No. 3. (d) Free from damage caused by: the FCP suggests that the sprouted seeds Tolerances (1) Dirt or other foreign material; should have an allowable length before 51.760 Tolerances. (2) Disease; scoring them. Therefore, it is proposed (3) Dryness or mushy condition; that: ‘‘not more than six seeds have Application of Tolerances (4) Hail; sprouts of more than 1⁄4 inch in length, 51.761 Application of tolerances. (5) Insects; or more than 3 seeds with sprouts over Sample for Grade Determination (6) Sprouting; 3 (7) Sunburn; and, ⁄4 inch in length’’ for damage; ‘‘not 51.762 Sample for grade determination. more than six seeds have sprouts of (8) Other means. more than 1⁄2 inch in length, or more Size (e) For tolerances see § 51.760. than 3 seeds with sprouts over 1 inch in 51.763 Size. § 51.751 U.S. No. 1 Bright. length’’ for serious damage; and, ‘‘not Definitions more than six seeds have sprouts more The requirements for this grade are 51.764 Similar varietal characteristics. the same as for U.S. No. 1 except that than 3⁄4 inch in length, or more than 3 51.765 Well colored. no fruit may have more than one-fifth of seeds with sprouts over 11⁄4 inch in 51.766 Firm. its surface, in the aggregate, affected by length’’ for very serious damage. 51.767 Well formed. The ‘‘Note’’ at the end of the discoloration. For tolerances see 51.768 Mature. § 51.760. ‘‘classification of defects’’ section 51.769 Smooth texture. references the size of the fruit in which 51.770 Injury. § 51.752 U.S. No. 1. to apply the aggregate area or length of 51.771 Discoloration. ‘‘U.S. No. 1’’ consists of grapefruit defects. Currently it references a specific 51.772 Fairly well colored. 51.773 Fairly smooth texture. which meet the following requirements: size fruit. However, due to the change (a) Basic requirements: in the ‘‘size’’ section, the specific size 51.774 Damage. 51.775 Fairly firm. (1) Discoloration. Not more than one- referenced would no longer be 51.776 Slightly misshapen. third of the surface, in the aggregate, applicable. Therefore, it is proposed that 51.777 Slightly rough texture. may be affected by discoloration. the basis for scoring defects shall be 51.778 Serious damage. (See § 51.771.); based on a fruit with a specific diameter 51.779 Slightly colored. measurement; 41⁄8 inches in diameter for 51.780 Poorly colored. (2) Fairly smooth texture; grapefruit, 27⁄8 inches in diameter for 51.781 Misshapen. (3) Fairly well colored; oranges and tangelos, and 21⁄2 inches in 51.782 Slightly spongy. (4) Firm; diameter for tangerines. 51.783 Very serious damage. (5) Mature; Finally, the sections that reference the 51.784 Diameter. (6) Similar varietal characteristics; visual aid would be deleted because 51.785 Classification of defects. and, changes in some of the definition of (7) Well formed. SubpartÐUnited States Standards for (b) Free from: defects which would make certain parts Grades of Florida Grapefruit of the visual aid obsolete and because (1) Decay; the visual aids are no longer available. Grades (2) Unhealed skin breaks; and, (3) Wormy fruit. List of Subjects in 7 CFR Part 51 § 51.750 U.S. Fancy. (c) Free from damage caused by: Agricultural commodities, Food ‘‘U.S. Fancy’’ consists of grapefruit (1) Ammoniation; grades and standards, Fruits, Nuts, which meet the following requirements: (2) Bruises; Reporting and recordkeeping (a) Basic requirements: (3) Buckskin; requirements, Vegetables. (1) Discoloration. Not more than one- (4) Caked melanose; tenth of the surface, in the aggregate, (5) Dirt or other foreign material; PART 51Ð[AMENDED] may be affected by discoloration. (6) Disease; (See § 51.771.); (7) Dryness or mushy condition; For reasons set forth in the preamble, (2) Firm; (8) Green spots; it is proposed that 7 CFR part 51 be (9) Hail; amended as follows: (3) Mature; (4) Similar varietal characteristics; (10) Insects; 1. The authority citation for 7 CFR (11) Oil spots; Part 51 continues to read as follows: (5) Smooth texture; (6) Well colored; and, (12) Scab; Authority: 7 U.S.C. 1622, 1624. (7) Well formed. (13) Scale; 2. In Subpart—United States (b) Free from: (14) Scars; Standards for Grades of Florida (1) Ammoniation; (15) Skin breakdown; Grapefruit is revised to read as follows: (2) Buckskin; (16) Sprayburn; (3) Caked melanose; (17) Sprouting; SubpartÐUnited States Standards for (4) Decay; (18) Sunburn; Grades of Florida Grapefruit (5) Scab; (19) Thorn scratches; and, Grades (6) Sprayburn; (20) Other means. Sec. (7) Unhealed skin breaks; and, (d) For tolerances see § 51.760. (8) Wormy fruit. 51.750 U.S. Fancy. § 51.753 U.S. No. 1 Golden. 51.751 U.S. No. 1 Bright. (c) Free from injury caused by: 51.752 U.S. No. 1. (1) Bruises; The requirements for this grade are 51.753 U.S. No. 1 Golden. (2) Green spots; the same as for U.S. No. 1 except that 51.754 U.S. No. 1 Bronze. (3) Oil spots; not more than 30 percent, by count, of 51.755 U.S. No. 1 Russet. (4) Scale; the fruit shall have more than one-third Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9993 of their surface, in the aggregate, (16) Sprayburn; lot may fail to meet the requirements of affected by discoloration. For tolerances (17) Sprouting; the specified grade: Provided, that see § 51.760. (18) Sunburn; included in this amount not more than (19) Thorn scratches; and, 5 percent shall be allowed for defects § 51.754 U.S. No. 1 Bronze. (20) Other means. causing very serious damage, including The requirements for this grade are (d) For tolerances see § 51.760. in this latter amount not more than 1 the same as for U.S. No. 1 except that § 51.758 U.S. No. 2 Russet. percent for decay or wormy fruit. at least 30 percent, by count, of the fruit (ii) For defects en route or at The requirements for this grade are shall have more than one-third of their destination. Not more than 12 percent of the same as for U.S. No. 2 except that surface, in the aggregate, affected by the fruit which fail to meet the at least 10 percent of the fruit shall have discoloration. The predominating requirements of the specified grade: more than one-half of their surface, in discoloration on each of these fruits Provided, that included in this amount the aggregate, affected by any type of shall be of rust mite type. For tolerances not more than the following percentages discoloration. For tolerances see see § 51.760. shall be allowed for defects listed: § 51.760. § 51.755 U.S. No. 1 Russet. (A) 10 percent for fruit having § 51.759 U.S. No. 3. permanent defects; or, The requirements for this grade are ‘‘U.S. No. 3’’ consists of grapefruit (B) 7 percent for defects causing very the same as for U.S. No. 1 except that serious damage, including therein not at least 30 percent, by count, of the fruit which meet the following requirements: (a) Basic requirements: more than 5 percent for very serious shall have more than one-third of their (1) Mature; damage by permanent defects and not surface, in the aggregate, affected by any (2) Misshapen; more than 3 percent for decay or wormy type of discoloration. For tolerances see (3) Poorly colored; fruit. § 51.760. (4) Rough texture, not seriously (2) U.S. No. 3. § 51.756 U.S. No. 2 Bright. bumpy; (i) For defects at shipping point.1 Not (5) Similar varietal characteristics; more than 10 percent of the fruit in any The requirements for this grade are and, lot may fail to meet the requirements of the same as for U.S. No. 2 except that (6) Slightly spongy. the grade: Provided, that included in no fruit may have more than one-fifth of (b) Free from: this amount not more than 1 percent its surface, in the aggregate, affected by (1) Decay; shall be for decay or wormy fruit. discoloration. For tolerances see (2) Unhealed skin breaks; and, (ii) For defects en route or at § 51.760. (3) Wormy fruit. destination. Not more than 12 percent of (c) Free from very serious damage § 51.757 U.S. No. 2. the fruit which fail to meet the caused by: requirements of the grade: Provided, ‘‘U.S. No. 2’’ consists of grapefruit (1) Ammoniation; which meet the following requirements: (2) Bruises; that included in this amount not more (a) Basic requirements: (3) Buckskin; than the following percentages shall be (1) Discoloration. Not more than one- (4) Caked melanose; allowed for defects listed: half of the surface, in the aggregate, may (5) Disease; (A) 10 percent for fruit having be affected by discoloration. (6) Dryness or mushy condition; permanent defects; or, (See § 51.771.) (7) Hail; (B) 3 percent for decay or wormy fruit. (8) Insects; (b) Discoloration. (2) Fairly firm; (9) Oil spotting; (1) U.S. No. 1 Bright, U.S. No. 1, U.S. (3) Mature; (10) Scab; No. 2 Bright, and U.S. No. 2. Not more (4) Similar varietal characteristics; (11) Scale; than 10 percent of the fruit in any lot (5) Slightly colored; (12) Scars; may fail to meet the requirements (6) Not more than slightly misshapen; (13) Skin breakdown; relating to discoloration as specified in and, (14) Sprayburn; each grade. No sample may have more (7) Not more than slightly rough (15) Sprouting; than 15 percent of the fruit with texture. (16) Sunburn; and, excessive discoloration: And provided (b) Free from: (17) Other means. further, that the entire lot averages (1) Decay; (d) For tolerances see § 51.760. within percentage specified. (2) Unhealed skin breaks; and, (2) U.S. No. 1 Golden. Not more than (3) Wormy fruit. Tolerances 30 percent of the fruit shall have in (c) Free from serious damage caused § 51.760 Tolerances. excess of one-third of their surface, in by: In order to allow for variations the aggregate, affected by discoloration, (1) Ammoniation; incident to proper grading and handling and no part of any tolerance shall be (2) Bruises; in each of the foregoing grades, the allowed to increase this percentage. No (3) Buckskin; following tolerances, by count, are (4) Caked melanose; sample may have more than 40 percent provided as specified: of the fruit with excessive discoloration: (5) Dirt or other foreign material; (a) Defects. (6) Disease; And provided further, that the entire lot (1) U.S. Fancy, U.S. No. 1 Bright, U.S. averages within the percentage (7) Dryness or mushy condition; No. 1, U.S. No. 1 Golden, U.S. No. 1 (8) Green spots; specified. Bronze, U.S. No. 1 Russet, U.S. No. 2 (3) U.S. No. 1 Bronze, and U.S. No. 1 (9) Hail; Bright, U.S. No. 2, and U.S. No. 2 (10) Insects; Russet. At least 30 percent of the fruit Russet. shall have in excess of one-third of the (11) Oil spots; (i) For defects at shipping point 1. Not (12) Scab; more than 10 percent of the fruit in any in the producing area or at port of loading for ship (13) Scale; stores or overseas shipment, or, in the case of (14) Scars; 1 Shipping point, as used in the standards in this shipments from outside the continental United (15) Skin breakdown; subpart, means the point of origin of the shipment States, the port of entry into the United States. 9994 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules surface, in the aggregate, affected by § 51.766 Firm. areas on larger fruit and lesser areas on discoloration, and no part of any Firm means that the fruit is not soft, smaller fruit. tolerance shall be allowed to reduce this or noticeably wilted or flabby, and the percentage. No sample may have less skin is not spongy or puffy. § 51.774 Damage. than 20 percent of the fruit with Damage means any specific defect required discoloration: And provided § 51.767 Well formed. described in § 51.785 Table I; or an further, that the entire lot averages Well formed means that the fruit has equally objectionable variation of any within the percentage specified. the shape characteristic of the variety. one of these defects, any other defect, or any combination of defects, which (4) U.S. No. 2 Russet. At least 10 § 51.768 Mature. percent of the fruit shall have in excess materially detracts from the appearance, of one-half of the surface, in the Mature shall have the same meaning or the edible or marketing quality of the aggregate, affected by discoloration, and currently assigned the term in §§ 601.16, fruit. 601.17, and 601.18 of the Florida Citrus no part of any tolerance shall be allowed § 51.775 Fairly firm. to reduce this percentage: And provided Code of 1949, as amended (chs. 28090 Fairly firm means that the fruit may further, that the entire lot averages and 29760, Laws of Florida, 1953 and be slightly soft, but not bruised, and the within the percentage specified. 1955), or as the definition of such term may hereafter be amended. skin is not spongy or puffy. Application of Tolerances § 51.769 Smooth texture. § 51.776 Slightly misshapen. § 51.761 Application of tolerances. Smooth texture means that the skin is Slightly misshapen means that the Individual samples are subject to the thin and smooth for the variety and size fruit has fairly good shape characteristic following limitations, unless otherwise of the fruit. ‘‘Thin’’ means that the skin of the variety and is not more than specified in § 51.760. Individual thickness does not average more than 3⁄8 slightly elongated or pointed or samples shall have not more than one inch (9.5 mm), on a central cross otherwise deformed. and one-half times a specified tolerance section, on grapefruit 41⁄8 inches (104.8 § 51.777 Slightly rough texture. of 10 percent or more, and not more mm) in diameter, allowing than double a specified tolerance less proportionately greater areas on larger Slightly rough texture means that the than 10 percent: Provided, that at least fruit and lesser areas on smaller fruit. skin may be slightly thick but not one decayed or wormy fruit may be excessively thick, materially ridged or permitted in any package: And provided § 51.770 Injury. grooved. ‘‘Slightly thick’’ means that the further, that the averages for the entire Injury means any specific defect skin thickness does not average more lot are within the tolerances specified described in § 51.785, Table I; or an than 5⁄8 inch (15.9 mm), on a central for the grade. equally objectionable variation of any cross section, on a grapefruit 41⁄8 inches one of these defects, any other defect, or (104.8 mm), allowing proportionately Sample for Grade Determination any combination of defects, which greater areas on larger fruit and lesser § 51.762 Sample for grade determination. slightly detracts from the appearance, or areas on smaller fruit. the edible or marketing quality of the Each sample shall consist of 33 fruit. § 51.778 Serious damage. fruit. When individual packages contain at Serious damage means any specific least 33 fruit, the sample is drawn from § 51.771 Discoloration. defect described in § 51.785, Table I; or one package; when individual packages Discoloration means russeting of a an equally objectionable variation of any contain less than 33 fruit, a sufficient light shade of golden brown caused by one of these defects, any other defect, or number of adjoining packages are rust mite or other means. Lighter shades any combination of defects, which opened to form a 33 fruit sample. of discoloration caused by smooth or seriously detracts from the appearance, Size fairly smooth superficial scars or other or the edible or marketing quality of the means may be allowed on a greater area, fruit. § 51.763 Size. or darker shades may be allowed on a § 51.779 Slightly colored. (a) Fruits shall be fairly uniform in lesser area, provided no discoloration size and shall be packed in containers caused by speck-type melanose or other Slightly colored means that except for according to approved and recognized means may detract from the appearance an aggregate area of green color which methods. of the fruit to a greater extent than the does not exceed the area of a circle 2 (b) ‘‘Fairly uniform in size’’ means shade and amount of discoloration inches (50.8 mm) in diameter, the fruit that not more than 9 percent of the allowed in the grade. surface shows some characteristic color. grapefruit per sample may vary more § 51.780 Poorly colored. than one-half inch in diameter. § 51.772 Fairly well colored. (c) In order to allow for variations Fairly well colored means that except Poorly colored means that not more incident to proper sizing, not more than for an aggregate area of green color than 25 percent of the surface may be 10 percent of the samples in any lot may which does not exceed the area of a of a solid dark green color. fail to meet the requirements of size. circle 1 inch (25.4 mm) in diameter, the § 51.781 Misshapen. Definitions characteristic color predominates over Misshapen means that the fruit is the green color. decidedly elongated, pointed, or § 51.764 Similar varietal characteristics. flatsided. Similar varietal characteristics means § 51.773 Fairly smooth texture. that the fruits in any container are Fairly smooth texture means that the § 51.782 Slightly spongy. similar in color and shape. skin is fairly thin and not coarse for the Slightly spongy means that the fruit is variety and size of the fruit. ‘‘Fairly puffy or slightly wilted but not flabby. § 51.765 Well colored. thin’’ means that the skin thickness does Well colored means that the fruit has not average more than 1⁄2 inch (12.7 § 51.783 Very serious damage. characteristic color for the variety with mm), on a grapefruit 41⁄8 inches (104.8 Very serious damage means any practically no trace of green color. mm), allowing proportionately greater specific defect in § 51.785, Table I; or an Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9995 equally objectionable variation of any or the edible or marketing quality of the § 51.784 Diameter. one of these defects, any other defect, or fruit. Diameter means the greatest any combination of defects, which very dimension measured at right angles to a seriously detracts from the appearance, line from stem to blossom end. § 51.785 Classification of defects. TABLE I Factor Injury Damage Serious damage Very serious damage Ammoniation ...... Not occurring as light Scars are cracked or dark Aggregating more than 25 speck type. and aggregating more percent of the surface. than a circle 1 inch (25.4 mm) in diameter. Bruises ...... Segment walls are col- Segment walls are col- Segment walls are col- Fruit is split open, peel is lapsed, or rag is rup- lapsed, or rag is rup- lapsed, or rag is rup- badly watersoaked, or tured and juice sacs are tured and juice sacs are tured and juice sacs are rag is ruptured and juice ruptured. ruptured. ruptured. sacs are ruptured caus- ing a mushy condition affecting all segments more than 3¤4 inch (19.1 mm) at bruised area or the equivalent of this amount, by volume, when affecting more than one area on the fruit. Buckskin ...... Aggregating more than a Aggregating more than 25 Aggregating more than 50 circle 11¤4 inches (31.8 percent of the surface.. percent of the surface mm) in diameter. Caked melanose ...... Aggregating more than a Aggregating more than a Aggregating more than 25 circle 3¤4 inch (19.1mm) circle 1 inch (25.4 mm) percent of the surface. in diameter. in diameter. Dryness or mushy condi- ...... Affecting all segments Affecting all segments Affecting all segments tion. more than 1¤4 inch (6.4 more than 1¤2 inch (12.7 more than 3¤4 inch (19.1 mm) at stem end, or the mm) at stem end, or the mm) at stem end, or the equivalent of this equivalent of this equivalent of this amount, by volume, amount, by volume, amount, by volume, when occurring in other when occurring in other when occurring in other portions of the fruit. portions of the fruit. portions of the fruit. Green spots ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 1¤3 circle 1¤2 inch (12.7 mm) circle 3¤4 inch (19.1 mm) circle 1 inch (25.4 mm) of the surface, caused in diameter, caused by in diameter, caused by in diameter, caused by by scale. scale. scale. scale. Oil spots ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 1¤3 circle 1¤2 inch (12.7 mm) circle 1 inch (25.4 mm) circle 11¤2 inches (38.1 of the surface in diameter. in diameter. mm) in diameter. Scab ...... Materially detracts from Seriously detracts from the Aggregating more than 25 the shape or texture, or shape or texture, or ag- percent of the surface. aggregating more than a gregating more than a circle 3¤4 inch (19.1 mm) circle 7¤8 inch (22.2 mm) in diameter. in diameter. Scale ...... More than a few adjacent Blotch aggregating more Blotch aggregating more Aggregating more than 25 to the ``button'' at the than a circle 3¤4 inch than a circle 1 inch percent of the surface. stem end, or more than (19.1 mm) in diameter, (25.4 mm) in diameter, 6 scattered on other or occurring as a ring or occurring as a ring portions of the fruit. more than a circle 11¤4 more than a circle 11¤2 inches (31.8 mm) in di- inches (38.1 mm) in di- ameter. ameter. Scars, Hail, or Thorn Depressed, not smooth, or Very deep or very rough Very deep or very rough Very deep or very rough scratches. detracts from appear- aggregating more than a aggregating more than a or unsightly that appear- ance more than the circle 1¤2 inch (12.7 mm) circle 1 inch (25.4 mm) ance is very seriously amount of discoloration in diameter; deep or in diameter; deep or affected. permitted in the grade. rough aggregating more rough aggregating more than a circle 1 inch than 5 percent of fruit (25.4 mm) in diameter; surface; slight depth or slightly rough or of slight slightly rough aggregat- depth aggregating more ing more than 15 per- than 10 percent of fruit cent of fruit surface. surface. Skin breakdown ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 25 circle 3¤8 inch (9.5 mm) circle 3¤4 inch (19.1 mm) circle 1 inch (25.4 mm) percent of the surface. in diameter. in diameter. in diameter. 9996 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules TABLE IÐContinued Factor Injury Damage Serious damage Very serious damage Sprayburn ...... Aggregating more than a Hard and aggregating Aggregating more than 25 circle 3¤4 inch (19.1 mm) more than a circle 11¤2 percent of the surface. in diameter. inches (38.1 mm) in di- ameter. Sprouting ...... More than six seeds have More than six seeds have More than six seeds have sprouts of more than 1¤4 sprouts of more than 1¤2 sprouts of more than 3¤4 inch (6.4 mm) in length, inch (12.7 mm) in inch (19.1 mm) in or more than 3 seeds length, or more than 3 length, or more than 3 with sprouts over 3¤4 seeds with sprouts over seeds with sprouts over inch (19.1 mm) in length. 1 inch (25.4 mm) in 11¤4 inches (31.8 mm) in length. length. Sunburn ...... Skin is flattened, dry, dark- Skin is hard and affects Aggregating more than 50 ened, or hard and the more than one-third of percent of the surface. affected area exceeds the surface. 25 percent of the sur- face. Note: References to area or aggregating area, or length are based on a grapefruit 41¤8 inches (104.8 mm) in diameter. 3. Part 51, Subpart—United States 51.1169 Slightly misshapen. may be affected by discoloration. (See Standards for Grades of Florida Oranges 51.1170 Slightly rough texture. § 51.1162.); and Tangelos is revised to read as 51.1171 Serious damage. (2) Firm; follows: 51.1172 Misshapen. (3) Mature; 51.1173 Slightly spongy. (4) Similar varietal characteristics; SubpartÐUnited States Standards for 51.1174 Very serious damage. (5) Smooth texture; Grades of Florida Oranges and 51.1175 Diameter. (6) Well colored; and, 51.1176 Classification of defects. Tangelos (7) Well formed. Standards for Internal Quality of Common (b) Free from: General Sweet Oranges (Citrus Sinensis (L) Osbeck) (1) Ammoniation; Sec. 51.1177 U.S.Grade AA Juice (Double A). (2) Buckskin; 51.1140 General. 51.1178 U.S.Grade A Juice. (3) Caked melanose; (4) Creasing; Grades 51.1179 Maximum anhydrous citric permissible for corresponding total (5) Decay; 51.1141 U.S.Fancy. soluble solids. (6) Scab; 51.1142 U.S.No. 1 Bright. 51.1180 Method of juice extraction. (7) Split navels; 51.1143 U.S.No. 1. (8) Sprayburn; 51.1144 U.S.No. 1 Golden. SubpartÐUnited States Standards for (9) Undeveloped segments; 51.1145 U.S.No. 1 Bronze. Grades of Florida Oranges and (10) Unhealed skin breaks; and, 51.1146 U.S.No. 1 Russet. 51.1147 U.S.No. 2 Bright. Tangelos (11) Wormy fruit. (c) Free from injury caused by: 51.1148 U.S.No. 2. General 51.1149 U.S.No. 2 Russet. (1) Bruises; 51.1150 U.S.No. 3. § 51.1140 General. (2) Green spots; (3) Oil spots; Tolerances The standards contained in this (4) Rough, wide or protruding navels; 51.1151 Tolerances. subpart apply only to the common or (5) Scale; Application of Tolerances sweet orange group and varieties and (6) Scars; hybrids of varieties belonging to the (7) Skin breakdown; and, 51.1152 Application of tolerances. Mandarin group, except tangerines, and (8) Thorn scratches. Sample for Grade Determination to the citrus fruit commonly known as (d) Free from damage caused by: 51.1153 Sample for grade determination. ‘‘tangelo’’—a hybrid between tangerine (1) Dirt or other foreign material; or mandarin orange (citrus reticulata) (2) Disease; Size with either the grapefruit or pomelo (C. (3) Dryness or mushy condition; 51.1154 Size. paradisi and C. grandis). Separate U.S. (4) Hail; standards apply to tangerines. The (5) Insects; Definitions (6) Riciness or woodiness; standards for internal quality contained 51.1155 Similar varietal characteristics. (7) Sunburn; and, 51.1156 Well colored. in §§ 51.1177 through 51.1180 apply (8) Other means. 51.1157 Firm. only to common sweet oranges (citrus (e) For tolerances see § 51.1151. 51.1158 Well formed. sinensis (L) Osbeck). (f) Internal quality. Lots meeting the 51.1159 Mature. Grades internal requirements for ‘‘U.S. Grade 51.1160 Smooth texture. AA Juice (Double A)’’ or ‘‘U.S. Grade A 51.1161 Injury. § 51.1141 U.S. Fancy. 51.1162 Discoloration. Juice’’ may be so specified in 51.1163 Fairly smooth texture. ‘‘U.S. Fancy’’ consists of oranges connection with the grade. (See 51.1164 Damage. which meet the following requirements: §§ 51.1177 through 51.1180.) 51.1165 Fairly well colored. (a) Basic requirements: 51.1166 Reasonably well colored. § 51.1142 U.S. No. 1 Bright. 51.1167 Poorly colored. (1) Discoloration. Not more than one- The requirements for this grade are 51.1168 Fairly firm. tenth of the surface, in the aggregate, the same as for U.S. No. 1 except that Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9997 no fruit may have more than one-fifth of not more than 30 percent, by count, of (5) Similar varietal characteristics; its surface, in the aggregate, affected by the fruit shall have more than one-third (6) Not more than slightly misshapen; discoloration. of their surface, in the aggregate, and, (a) For tolerances see § 51.1151. affected by discoloration. (7) Not more than slightly rough (b) Internal quality. Lots meeting the (a) For tolerances see § 51.1151. texture. internal requirements for ‘‘U.S. Grade (b) Internal quality. Lots meeting the (b) Free from: AA Juice (Double A)’’ or ‘‘U.S. Grade A internal requirements for ‘‘U.S. Grade (1) Decay; Juice’’ may be so specified in AA Juice (Double A)’’ or ‘‘U.S. Grade A (2) Unhealed skin breaks; and, connection with the grade. (See Juice’’ may be so specified in (3) Wormy fruit. §§ 51.1177 through 51.1180.) connection with the grade. (See (c) Free from serious damage caused §§ 51.1177 through 51.1180.) by: § 51.1143 U.S. No. 1. (1) Ammoniation; ‘‘U.S. No. 1’’ consists of oranges § 51.1145 U.S. No. 1 Bronze. (2) Bruises; which meet the following requirements: The requirements for this grade are (3) Buckskin; (a) Basic requirements: the same as for U.S. No. 1 except at least (4) Caked melanose; (1) Color; 30 percent, by count, of the fruit shall (5) Creasing; (i) Early and midseason varieties shall have more than one-third of their (6) Dirt or other foreign material; be fairly well colored. surface, in the aggregate, affected by (7) Disease; (ii) For Valencia and other late discoloration. The predominating (8) Dryness or mushy condition; varieties, not less than 50 percent, by discoloration on each fruit shall be of (9) Green spots; count, shall be fairly well colored and rust mite type. (10) Hail; the remainder reasonably well colored. (a) For tolerances see § 51.1151. (11) Insects; (2) Discoloration. Not more than one- (b) Internal quality. Lots meeting the (12) Oil spots; third of the surface, in the aggregate, internal requirements for ‘‘U.S. Grade (13) Riciness or woodiness; may be affected by discoloration. (See AA Juice (Double A)’’ or ‘‘U.S. Grade A (14) Scab; § 51.1162.); Juice’’ may be so specified in (15) Scale; (3) Fairly smooth texture; connection with the grade. (See (16) Scars; (4) Firm; §§ 51.1177 through 51.1180.) (17) Skin breakdown; (5) Mature; (18) Split, rough or protruding navels; (6) Similar varietal characteristics; § 51.1146 U.S. No. 1 Russet. (19) Sprayburn; and, The requirements for this grade are (20) Sunburn; (7) Well formed. the same as for U.S. No. 1 except that (21) Thorn scratches; and, (b) Free from: at least 30 percent, by count, of the fruit (22) Other means. (1) Decay; shall have more than one-third of their (d) For tolerances see § 51.1151. (2) Unhealed skin breaks; and, surface, in the aggregate, affected by any (e) Internal quality: Lots meeting the (3) Wormy fruit. type of discoloration. internal requirements for ‘‘U.S. Grade (c) Free from damage caused by: (a) For tolerances see § 51.1151. (1) Ammoniation; AA Juice (Double A)’’ or ‘‘U.S. Grade A (b) Internal quality. Lots meeting the (2) Bruises; Juice’’ may be so specified in internal requirements for ‘‘U.S. Grade (3) Buckskin; connection with the grade. (See (4) Caked melanose; AA Juice (Double A)’’ or ‘‘U.S. Grade A §§ 51.1177 through 51.1180.) Juice’’ may be so specified in (5) Creasing; § 51.1149 U.S. No. 2 Russet. (6) Dirt or other foreign material; connection with the grade. (See The requirements for this grade are (7) Disease; §§ 51.1177 through 51.1180.) the same as for U.S. No. 2 except that (8) Dryness or mushy condition; § 51.1147 U.S. No. 2 Bright. (9) Green spots; at least 10 percent of the fruit shall have The requirements for this grade are (10) Hail; more than one-half of their surface, in (11) Insects; the same as for U.S. No. 2 except that the aggregate, affected by any type of (12) Oil spots; no fruit may have more than one-fifth of discoloration. (13) Riciness or woodiness; its surface, in the aggregate, affected by (a) For tolerances see § 51.1151. (14) Scab; discoloration. (b) Internal quality. Lots meeting the (15) Scale; (a) For tolerances see § 51.1151. internal requirements for ‘‘U.S. Grade (16) Scars; (b) Internal quality. Lots meeting the AA Juice (Double A)’’ or ‘‘U.S. Grade A (17) Skin breakdown; internal requirements for ‘‘U.S. Grade Juice’’ may be so specified in (18) Split, rough or protruding navels; AA Juice (Double A)’’ or ‘‘U.S. Grade A connection with the grade. (See (19) Sprayburn; Juice’’ may be so specified in §§ 51.1177 through 51.1180.) (20) Sunburn; connection with the grade. (See § 51.1150 U.S. No. 3. (21) Thorn scratches; and, §§ 51.1177 through 51.1180.) (22) Other means. ‘‘U.S. No. 3’’ consists of oranges § 51.1148 U.S. No. 2. (d) For tolerances see § 51.1151. which meet the following requirements: (e) Internal quality. Lots meeting the ‘‘U.S. No. 2’’ consists of oranges (a) Basic requirements: internal requirements for ‘‘U.S. Grade which meet the following requirements: (1) Mature; AA Juice (Double A)’’ or ‘‘U.S. Grade A (a) Basic requirements: (2) Misshapen; Juice’’ may be so specified in (1) Discoloration. Not more than one- (3) Poorly colored; connection with the grade. (See half of the surface, in the aggregate, may (4) Rough texture, not seriously §§ 51.1177 through 51.1180.) be affected by discoloration. (See lumpy; § 51.1162.) (5) Similar varietal characteristics; § 51.1144 U.S. No. 1 Golden. (2) Fairly firm; and, The requirements for this grade are (3) Mature; (6) Slightly spongy. the same as for U.S. No. 1 except that (4) Reasonably well colored; (b) Free from: 9998 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules (1) Decay; (B) 7 percent for defects causing very specified in § 51.1151: Provided, that (2) Unhealed skin breaks; and, serious damage, including therein not individual samples shall have not more (3) Wormy fruit. more than 5 percent for very serious than one and one-half times a specified (c) Free from very serious damage damage by permanent defects and not tolerance of 10 percent or more, and not caused by: more than 3 percent for decay or wormy more than double a specified tolerance (1) Ammoniation; fruit. of less than 10 percent: And provided (2) Bruises; (2) U.S. No. 3. further, that the averages for the entire (3) Buckskin; (i) For defects at shipping point.1 Not lot are within the tolerances specified (4) Caked melanose; more than 10 percent of the fruit in any for the grade. (5) Creasing; lot may fail to meet the requirements of Sample For Grade Determination (6) Disease; the grade: Provided, that included in (7) Dryness or mushy condition; this amount not more than 1 percent § 51.1153 Sample for grade determination. (8) Hail; shall be for decay or wormy fruit. Each sample shall consist of 50 fruit. (9) Insects; (ii) For defects en route or at When individual packages contain at (10) Riciness or woodiness; destination. Not more than 12 percent of least 50 fruit, the sample is drawn from (11) Scab; the fruit which fail to meet the one package; when individual packages (12) Scale; requirements of the grade: Provided, contain less than 50 fruit, a sufficient (13) Scars; that included in this amount not more number of adjoining packages are (14) Skin breakdown; than the following percentages shall be opened to form a 50 fruit sample. (15) Split navels; allowed for defects listed: (16) Sprayburn; (A) 10 percent for fruit having Size (17) Sunburn; and, permanent defects; or, § 51.1154 Size. (18) Other means. (B) 3 percent for decay or wormy fruit. (a) Fruits shall be fairly uniform in (d) For tolerances see § 51.1151. (b) Discoloration. size and shall be packed in containers (e) Internal quality. Lots meeting the (1) U.S. No. 1 Bright, U.S. No. 1, U.S. according to approved and recognized internal requirements for ‘‘U.S. Grade No. 2 Bright, and U.S. No. 2. Not more methods. AA Juice (Double A)’’ or ‘‘U.S. Grade A than 10 percent of the fruit in any lot (b) ‘‘Fairly uniform in size’’ means Juice’’ may be so specified in may fail to meet the requirements that not more than 10 percent of the connection with the grade. (See relating to discoloration as specified in oranges per sample may vary more than §§ 51.1177 through 51.1180.) each grade. No sample may have more one-half inch in diameter. than 15 percent of the fruit with Tolerances (c) In order to allow for variations excessive discoloration: And provided incident to proper sizing, not more than § 51.1151 Tolerances. further, that the entire lot averages 10 percent of the samples in any lot may In order to allow for variations within the percentage specified. fail to meet the requirements of size. (2) U.S. No. 1 Golden. Not more than incident to proper grading and handling Definitions in each of the foregoing grades, the 30 percent of the fruit shall have in following tolerances, by count, are excess of one-third of their surface, in § 51.1155 Similar varietal characteristics. the aggregate, and no part of any provided as specified: Similar varietal characteristics means tolerance shall be allowed to increase (a) Defects. that the fruits in any container are this percentage. No sample may have (1) U.S. Fancy, U.S. No. 1 Bright, U.S. similar in color and shape. No. 1, U.S. No. 1 Golden, U.S. No. 1 more than 40 percent of the fruit with Bronze, U.S. No. 1 Russet, U.S. No. 2 excessive discoloration: And provided § 51.1156 Well colored. Bright, U.S. No. 2, and U.S. No. 2 Russet further, that the entire lot averages Well colored as applied to common grades. within the percentage specified. oranges and tangelos means that the (i) For defects at shipping point.1 Not (3) U.S. No. 1 Bronze, and U.S. No. 1 fruit has characteristic color for the more than 10 percent of the fruit in any Russet. At least 30 percent of the fruit variety with practically no trace of green lot may fail to meet the requirements of shall have in excess of one-third of the color. surface, in the aggregate, affected by the specified grade: Provided, that § 51.1157 Firm. included in this amount not more than discoloration, and no part of any Firm as applied to common oranges 5 percent shall be allowed for defects tolerance shall be allowed to reduce this and tangelos means that the fruit is not causing very serious damage, including percentage. No sample may have less soft, or noticeably wilted or flabby; as in this latter amount not more than 1 than 20 percent of the fruit with applied to oranges of the Mandarin percent for decay or wormy fruit. required discoloration: And provided group (Satsumas, King, Mandarin), (ii) For defects en route or at further, that the entire lot averages ‘‘firm’’ means that the fruit is not destination. Not more than 12 percent of within the percentage specified. extremely puffy, although the skin may the fruit which fail to meet the (4) U.S. No. 2 Russet. At least 10 be slightly loose. requirements of the specified grade: percent of the fruit shall have in excess of one-half of the surface, in the Provided, that included in this amount § 51.1158 Well formed. not more than the following percentages aggregate, affected by discoloration, and no part of any tolerance shall be allowed Well formed means that the fruit has shall be allowed for defects listed: the shape characteristic of the variety. (A) 10 percent for fruit having to reduce this percentage: And provided permanent defects; or, further, that the entire lot averages § 51.1159 Mature. within the percentage specified. (a) Mature for other than Temple 1 Shipping point, as used in the standards in this Application of Tolerances oranges shall have the same meaning subpart, means the point of origin of the shipment currently assigned that term in section in the producing area or at port of loading for ship § 51.1152 Application of tolerances. stores or overseas shipment, or, in the case of 601.19 and 601.20 of the Florida Citrus shipments from outside the continental United Individual samples are subject to the Code of 1949, as amended (ch. 25149, States, the port of entry into the United States. following limitations, unless otherwise Laws of Florida, 1949), or as the Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 9999 definition of such term may hereafter be § 51.1163 Fairly smooth texture. § 51.1169 Slightly misshapen. amended; Fairly smooth texture means that the Slightly misshapen means that the (b) Mature for Temple oranges shall skin is fairly thin and not coarse for the fruit is not of the shape characteristic of have the same meaning currently variety and size of the fruit. the variety but is not appreciably assigned that term in sections 601.21 elongated or pointed or otherwise and 601.22 of the Florida Citrus Code of § 51.1164 Damage. deformed. 1949, as amended (ch. 26492, Laws of Damage means any specific defect Florida, 1951), or as the definition of described in § 51.1176, Table I; or an § 51.1170 Slightly rough texture. such term may hereafter be amended; equally objectionable variation of any Slightly rough texture means that the and, one of these defects, any other defect, or skin is not of smooth texture but is not (c) Mature for Tangelos shall have the any combination of defects, which materially ridged, grooved, or wrinkled. same meaning currently assigned that materially detracts from the appearance, § 51.1171 Serious damage. term in section 601.231 and 601.232 of or the edible or marketing quality of the the Florida Citrus Code of 1949, as fruit. Serious damage means any specific amended (ch. 29757, Laws of Florida, defect described in § 51.1176, Table I; or 1955), or as the definition of such term § 51.1165 Fairly well colored. an equally objectionable variation of any may hereafter be amended. Fairly well colored as applied to one of these defects, any other defect, or any combination of defects, which § 51.1160 Smooth texture. common oranges and tangelos means seriously detracts from the appearance, Smooth texture means that the skin is that except for an aggregate area of green color which does not exceed the area of or the edible or marketing quality of the thin and smooth for the variety and size fruit. of the fruit. a circle 1 inch (25.4 mm) in diameter, the characteristic color predominates § 51.1172 Misshapen. § 51.1161 Injury. over the green color. Misshapen means that the fruit is Injury means any specific defect § 51.1166 Reasonably well colored. decidedly elongated, pointed or described in § 51.1176, Table I; or an flatsided. equally objectionable variation of any Reasonably well colored as applied to one of these defects, any other defect, or common oranges means that the § 51.1173 Slightly spongy. any combination of defects which characteristic color predominate over the green color on at least two-thirds of Slightly spongy means that the fruit is slightly detracts from the appearance, or puffy or slightly wilted but not flabby. the edible or marketing quality of the the fruit surface, in the aggregate. § 51.1174 Very serious damage. fruit. § 51.1167 Poorly colored. Very serious damage means any § 51.1162 Discoloration. Poorly colored as applied to common specific defect described in § 51.1176, Discoloration means russeting of a oranges means that not more than 25 Table I; or an equally objectionable light shade of golden brown caused by percent of the surface may be solid dark variation of any one of these defects, rust mite or other means. Lighter shades green color. of discoloration caused by smooth or any other defect, or any combination of fairly smooth superficial scars or other § 51.1168 Fairly firm. defects, which very seriously detracts from the appearance, or the edible or means may be allowed on a greater area, Fairly firm as applied to common marketing quality of the fruit. or darker shades may be allowed on a oranges and tangelos, means that the lesser area, provided no discoloration fruit may be slightly soft, but not § 51.1175 Diameter. caused by speck type melanose or other bruised; as applied to oranges of the Diameter means the greatest means may detract from the appearance Mandarin group (Satsumas, King, dimension measured at right angles to a of the fruit to a greater extent than the Mandarin), means that the skin of the line from stem to blossom end. shade and amount of discoloration fruit is not extremely puffy or extremely allowed for the grade. loose. § 51.1176 Classification of defects. TABLE I Factor Injury Damage Serious damage Very serious damage Ammoniation ...... Not occurring as light Scars are cracked or dark Aggregating more than 25 speck type. and aggregating more percent of the surface. than a circle 3¤4 inch (19.1 mm) in diameter. Bruises ...... Segment walls are col- Segment walls are col- Segment walls are col- Fruit is split open, peel is lapsed, or rag is rup- lapsed, or rag is rup- lapsed, or rag is rup- badly watersoaked, or tured and juice sacs are tured and juice sacs are tured and juice sacs are rag is ruptured and juice ruptured. ruptured. ruptured. sacs are ruptured caus- ing a mushy condition affecting all segments more than 3¤4 inch (19.1 mm) at bruised area or the equivalent of this amount, by volume, when affecting more than one area on the fruit. 10000 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules TABLE IÐContinued Factor Injury Damage Serious damage Very serious damage Buckskin ...... Aggregating more than a Aggregating more than 25 Aggregating more than 50 circle 1 inch (25.4 mm) percent of the surface. percent of the surface. in diameter. Caked melanose ...... Aggregating more than a Aggregating more than a Aggregating more than 25 circle 5¤8 inch (15.9 mm) circle 3¤4 inch (19.1 mm) percent of the surface. in diameter. in diameter. Creasing ...... Materially weakens the Seriously weakens the Very seriously weakens skin, or extends over skin, or extends over the skin, or is distributed more than one-third of more than one-half of over practically the en- the surface. the surface. tire surface. Dryness or mushy condi- ...... Affecting all segments Affecting all segments Affecting all segments tion. more than 1¤4 inch (6.4 more than 1¤2 inch (12.7 more than 3¤4 inch (19.1 mm) at stem end, or the mm) at stem end, or the mm) at stem end, or the equivalent of this equivalent of this equivalent of this amount, by volume, amount, by volume, amount, by volume, when occurring in other when occurring in other when occurring in other portions of the fruit. portions of the fruit. portions of the fruit. Green spots ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 1¤3 circle 3¤8 inch (9.5 mm) circle 5¤8 inch (15.9 mm) circle 7¤8 inch (22.2 mm) of the surface, caused in diameter, caused by in diameter, caused by in diameter, caused by by scale. scale. scale. scale. Oil spots ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 1¤3 circle 3¤8 inch (9.5 mm) circle 7¤8 inch (22.2 mm) circle 11¤4 inches (31.8 of the surface. in diameter. in diameter. mm) in diameter. Scab ...... Materially detracts from Seriously detracts from the Aggregating more than 25 the shape or texture, or shape or texture, or ag- percent of the surface. aggregating more than a gregating more than a circle 5¤8 inch (15.9 mm) circle 3¤4 inch (19.1 mm) in diameter. in diameter. Scale ...... More than a few adjacent Aggregating more than a Aggregating more than a Aggregating more than 25 to the ``button'' at the circle 5¤8 inch (15.9 mm) circle 3¤4 inch (19.1 mm) percent of the surface. stem end, or more than in diameter. in diameter. 6 scattered on other portions of the fruit. Scars, hail, or thorn Depressed, not smooth, or Deep or rough aggregating Deep or rough aggregating Deep or rough or unsightly scratches. detracts from appear- more than a circle 1¤4 more than a circle 1¤2 that appearance is very ance more than the inch (6.4 mm) in diame- inch (12.7 mm) in diam- seriously affected. amount of discoloration ter; slightly rough with eter; slightly rough with permitted in the grade. slight depth aggregating depth aggregating more more than a circle 7¤8 than a circle 11¤4 inches inch (22.2 mm) in diam- (31.8 mm) in diameter; eter; smooth or fairly smooth or fairly smooth smooth with slight depth with slightly depth ag- aggregating more than a gregating more than 10 circle 11¤4 inches (31.8. percent of fruit surface. mm) in diameter. Skin breakdown ...... Aggregating more than a Aggregating more than a Aggregating more than a Aggregating more than 25 circle 1¤4 inch (6.4 mm) circle 1¤2 inch (12.7 mm) circle 7¤8 inch (22.2 mm) percent of the surface. in diameter. in diameter. in diameter. Sprayburn ...... Aggregating more than a Hard and aggregating Aggregating more than 25 circle 5¤8 inch (15.9 mm) more than a circle 11¤2 percent of the surface in diameter. inches (38.1 mm) in di- ameter. Split, rough, protruding na- Split is unhealed, or more Split is unhealed, or more Split is unhealed, or more Split is unhealed or fruit is vels. than 1¤8 inch (3.2 mm) in than 1¤4 inch (6.4 mm) in than 1¤2 inch (12.7 mm) seriously weakened length, or navel pro- length, or more than in length, or two or more trudes beyond the gen- three well healed splits, splits aggregate more eral contour, and open- or navel protrudes be- than 1 inch (25.4 mm) in ing is so wide, folded yond the general con- length, or navel pro- and ridged that it de- tour, and opening is so trudes beyond general tracts from the appear- wide, folded and ridged contour, and opening is ance. that it detracts from ap- so wide, folded and pearance. ridged that it detracts from appearance. Sunburn ...... Skin is flattened, dry, dark- Skin is hard and affects Aggregating more than 50 ened, or hard and the more than one-third of percent of the surface. affected area exceeds the surface. 25 percent of the sur- face. Note: References to area or aggregating area, or length are based on an orange or tangelo 27¤8 inches (73.0 mm) in diameter. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 10001 Standards For Internal Quality of TABLE IIÐContinued 4. Part 51, Subpart—United States Common Sweet Oranges (Citrus Standards for Grades of Florida Sinensis (L) Osbeck) Maximum Minimum Tangerines is revised to read as follows: anhydrous ratio of total § 51.1177 U.S. Grade AA Juice (Double A). Total soluble sol- soluble sol- SubpartÐUnited States Standards for ids (average pct) citric acid ids to anhy- Any lot of oranges, the juice content (average drous citric Grades of Florida Tangerines of which meets the following pct) acid requirements, may be designated ‘‘U.S. Grades Grade AA Juice (Double A)’’: 10.3 ...... 1.164 8.85±1 Sec. (a) Each lot of fruit shall contain an 10.4 ...... 1.182 8.80±1 51.1810 U.S. Fancy. average of not less than 5 gallons (18.9 10.5 ...... 1.200 8.75±1 51.1811 U.S. No. 1 Bright. liters) of juice per standard packed box 10.6 ...... 1.218 8.70±1 51.1812 U.S. No. 1. 10.7 ...... 1.237 8.65±1 51.1813 U.S. No. 1 Golden. of 13⁄5 bushels. 10.8 ...... 1.256 8.60±1 51.1814 U.S. No. 1 Bronze. (b) The average juice content for any 10.9 ...... 1.275 8.55±1 51.1815 U.S. No. 1 Russet. lot of fruit shall have not less than 10 11.0 ...... 1.294 8.50±1 51.1816 U.S. No. 2 Bright. percent total soluble solids, and not less 11.1 ...... 1.306 8.50±1 51.1817 U.S. No. 2. than one-half of 1 percent anhydrous 11.2 ...... 1.318 8.50±1 51.1818 U.S. No. 2 Russet. citric acid, or more than the permissible 11.3 ...... 1.329 8.50±1 51.1819 U.S. No. 3. 11.4 ...... 1.341 8.50±1 maximum acid specified in Table II of Tolerances § 51.1179. 11.5 ...... 1.353 8.50±1 11.6 ...... 1.365 8.50±1 51.1820 Tolerances. § 51.1178 U.S. Grade A Juice. 11.7 ...... 1.376 8.50±1 Application of Tolerances Any lot of oranges, the juice content 11.8 ...... 1.388 8.50±1 51.1821 Application of tolerances. of which meets the following 11.9 ...... 1.400 8.50±1 12.0 ...... 1.412 8.50±1 Sample for Grade Determination requirements, may be designated ‘‘U.S. 12.1 ...... 1.424 8.50±1 Grade A Juice’’: 12.2 ...... 1.435 8.50±1 51.1822 Sample for grade determination. (a) Each lot of fruit shall contain an 12.3 ...... 1.447 8.50±1 Size average of not less than 41⁄2 gallons (17.0 12.4 ...... 1.459 8.50±1 liters) of juice per standard packed box 12.5 ...... 1.471 8.50±1 51.1823 Size. of 13⁄5 bushels. 12.6 ...... 1.482 8.50±1 Definitions (b) The average juice content for any 12.7 ...... 1.494 8.50±1 12.8 ...... 1.506 8.50±1 51.1824 Mature. lot of fruit shall have not less than 9 51.1825 Firm. percent total soluble solids, and not less 12.9 ...... 1.517 8.50±1 13.0 ...... 1.530 8.50±1 51.1826 Well formed. than one-half of 1 percent anhydrous 13.1 ...... 1.541 8.50±1 51.1827 Damage. citric acid, or more than the permissible 13.2 ...... 1.553 8.50±1 51.1828 Highly colored. maximum acid specified in Table II of 13.3 ...... 1.565 8.50±1 51.1829 Discoloration. § 51.1179. 13.4 ...... 1.576 8.50±1 51.1830 Well colored. 13.5 ...... 1.588 8.50±1 51.1831 Fairly well colored. § 51.1179 Maximum anhydrous citric acid 13.6 ...... 1.600 8.50±1 51.1832 Fairly firm. permissible for corresponding total soluble 13.7 ...... 1.612 8.50±1 51.1833 Fairly well formed. solids. 13.8 ...... 1.624 8.50±1 51.1834 Serious damage. For determining the grade of juice, the 13.9 ...... 1.635 8.50±1 51.1835 Reasonably well colored. maximum permissible anhydrous citric 14.0 ...... 1.647 8.50±1 51.1836 Very serious damage. acid content in relation to 14.1 ...... 1.659 8.50±1 51.1837 Diameter. 51.1838 Classification of defects. corresponding total soluble solids in the 14.2 ...... 1.671 8.50±1 14.3 ...... 1.682 8.50±1 fruit is set forth in the following Table 14.4 ...... 1.694 8.50±1 SubpartÐUnited States Standards for II together with the minimum ratio of 14.5 ...... 1.705 8.50±1 Grades of Florida Tangerines total soluble solids to anhydrous citric 14.6 ...... 1.718 8.50±1 acid: 14.7 ...... 1.729 8.50±1 § 51.1810 U.S. Fancy. 14.8 ...... 1.741 8.50±1 ‘‘U.S. Fancy’’ consists of tangerines TABLE II 14.9 ...... 1.753 8.50±1 which meet the following requirements: 15.0 ...... 1.765 8.50±1 (a) Basic requirements: 15.1 ...... 1.776 8.50±1 Maximum Minimum (1) Discoloration. Not more than one- ratio of total 15.2 ...... 1.788 8.50±1 tenth of the surface, in the aggregate, anhydrous 15.3 ...... 1.800 8.50 Total soluble sol- citric acid soluble sol- ids (average pct) ids to anhy- 15.4 ...... 1.812 8.50±1 may be affected by discoloration. (See (average § 51.1829.); pct) drous citric 15.5 ...... 1.824 8.50±1 acid 15.6 or more ..... 8.50±1 (2) Firm; (3) Highly colored; 9.0 ...... 0.947 9.50±1 (4) Mature; and, § 51.1180 Method of juice extraction. 9.1 ...... 963 9.45±1 (5) Well formed. 9.2 ...... 979 9.40±1 The juice used in the determining of (b) Free from: 9.3 ...... 995 9.35±1 solids, acids and juice content shall be (1) Caked melanose; 9.4 ...... 1.011 9.30±1 extracted from representative samples as 9.5 ...... 1.027 9.25±1 (2) Decay; thoroughly as possible with a hand (3) Unhealed skin breaks; and, 9.6 ...... 1.043 9.20±1 reamer or by such mechanical extractor 9.7 ...... 1.060 9.15±1 (4) Wormy fruit. 9.8 ...... 1.077 9.10±1 or extractors as may be approved. The (c) Free from damage caused by: 9.9 ...... 1.094 9.05±1 juice shall be strained through cheese (1) Ammoniation; 10.0 ...... 1.111 9.00±1 cloth or other approved straining device (2) Bruises; 10.1 ...... 1.128 8.95±1 of extra fine mesh to prevent passage of (3) Buckskin; 10.2 ...... 1.146 8.90±1 juice cells, pulp, or seeds. (4) Creasing; 10002 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules (5) Dirt or other foreign material; § 51.1814 U.S. No. 1 Bronze. at least 10 percent of the fruit shall have (6) Dryness or mushy condition; The requirements for this grade are more than one-half of their surface, in (7) Disease; the same as for U.S. No. 1 except that the aggregate, affected by any type of (8) Green spots; at least 30 percent, by count, of the fruit discoloration. For tolerances see (9) Hail; shall have more than one-third of their § 51.1820. (10) Insects; surface, in the aggregate, affected by § 51.1819 U.S. No. 3. (11) Oil spots; discoloration. The predominating (12) Scab; discoloration on each fruit shall be of ‘‘U.S. No. 3’’ consists of tangerines (13) Scale; rust mite type. For tolerances see which meet the following requirements: (14) Scars; § 51.1820. (a) Basic requirements: (15) Skin breakdown; (1) Mature; (16) Sprayburn; § 51.1815 U.S. No. 1 Russet. (2) Not flabby; and, (17) Sunburn; and, The requirements for this grade are (3) Not seriously lumpy. (18) Other means. the same as for U.S. No. 1 except that (b) Free from: (d) For tolerances see § 51.1820. at least 30 percent, by count, of the fruit (1) Decay; (2) Unhealed skin breaks; and, § 51.1811 U.S. No. 1 Bright. shall have more than one-third of their surface, in the aggregate, affected by any (3) Wormy fruit. The requirements for this grade are type of discoloration. For tolerances see (c) Free from very serious damage the same as for U.S. No. 1 except that § 51.1820. caused by: no fruit may have more than one-fifth of (1) Ammoniation; its surface, in the aggregate, affected by § 51.1816 U.S. No. 2 Bright. (2) Bruises; discoloration. For tolerances see The requirements for this grade are (3) Caked melanose; § 51.1820. the same as for U.S. No. 2 except that (4) Creasing; (5) Dirt or other foreign material; § 51.1812 U.S. No. 1. no fruit may have more than one-fifth of its surface, in the aggregate, affected by (6) Disease; ‘‘U.S. No. 1’’ consists of tangerines discoloration. For tolerances see (7) Dryness or mushy condition; which meet the following requirements: § 51.1820. (8) Hail; (a) Basic requirements: (9) Insects; (1) Discoloration. Not more than one- § 51.1817 U.S. No. 2. (10) Scab; third of the surface, in the aggregate, ‘‘U.S. No. 2’’ consists of tangerines (11) Scale; may be affected by discoloration. (See which meet the following requirements: (12) Scars; § 51.1829.); (a) Basic requirements: (13) Skin breakdown; (2) Fairly well colored; (1) Discoloration. Not more than one- (14) Sprayburn; (3) Firm; half of the surface, in the aggregate, may (15) Sunburn; and, (4) Mature; and, be affected by discoloration. (See (16) Other means. (5) Well formed. § 51.1829.); (d) For tolerances see § 51.1820. (b) Free from: (2) Fairly firm; Tolerances (1) Decay; (3) Fairly well formed; (2) Unhealed skin breaks; and, (4) Mature; and, § 51.1820 Tolerances. (3) Wormy fruit. (5) Reasonably well colored. In order to allow for variations (c) Free from damage caused by: (b) Free from: incident to proper grading and handling (1) Ammoniation; (1) Decay; in each of the foregoing grades, the (2) Bruises; (2) Unhealed skin breaks; and, following tolerances, by count, are (3) Buckskin; (3) Wormy fruit. (4) Caked melanose; provided as specified: (c) Free from serious damage caused (a) Defects. (5) Creasing; by: (6) Dirt or other foreign material; (1) U.S. Fancy, U.S. No. 1 Bright, U.S. (1) Ammoniation; No. 1, U.S. No. 1 Golden, U.S. No. 1 (7) Disease; (2) Bruises; (8) Dryness or mushy condition; Bronze, U.S. No. 1 Russet, U.S. No. 2 (3) Buckskin; Bright, U.S. No. 2, and U.S. No. 2 Russet (9) Green spots; (4) Caked melanose; (10) Hail; grades. (5) Creasing; (i) For defects at shipping point.1 Not (11) Insects; (6) Dirt or other foreign material; (12) Oil spots; more than 10 percent of the fruit in any (7) Disease; lot may fail to meet the requirements of (13) Scab; (8) Dryness or mushy condition; the specified grade: Provided, that (14) Scale; (9) Green spots; included in this amount not more than (15) Scars; (10) Hail; (16) Skin breakdown; (11) Insects; 5 percent shall be allowed for defects (17) Sprayburn; (12) Oil spots; causing very serious damage, including (18) Sunburn; and, (13) Scab; in this latter amount not more than 1 (19) Other means. (14) Scale; percent for decay or wormy fruit. (d) For tolerances see § 51.1820. (15) Scars; (ii) For defects en route or at (16) Skin breakdown; destination. Not more than 12 percent of § 51.1813 U.S. No. 1 Golden. (17) Sprayburn; the fruit which fail to meet the The requirements for this grade are (18) Sunburn; and, requirements of the specified grade: the same as for U.S. No. 1 except that (19) Other means. not more than 30 percent, by count, of (d) For tolerances see § 51.1820. 1 Shipping point, as used in the standards in this the fruit shall have more than one-third subpart, means the point of origin of the shipment § 51.1818 U.S. No. 2 Russet. in the producing area or at port of loading for ship of their surface, in the aggregate, stores or overseas shipment, or, in the case of affected by discoloration. For tolerances The requirements for this grade are shipments from outside the continental United see § 51.1820. the same as for U.S. No. 2 except that States, the port of entry into the United States. Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules 10003 Provided, that included in this amount Application of Tolerances or the edible or marketing quality of the not more than the following percentages fruit. shall be allowed for defects listed: § 51.1821 Application of tolerances. (A) 10 percent for fruit having Individual samples are subject to the § 51.1828 Highly colored. permanent defects; or, following limitations, unless otherwise Highly colored means that the ground (B) 7 percent for defects causing very specified in § 51.1820: Provided, that color of each fruit is a deep tangerine serious damage, including therein not individual samples shall have not more color, or characteristic color for the more than 5 percent for very serious than one and one-half times a specified variety, with practically no trace of damage by permanent defects and not tolerance of 10 percent or more, and not yellow color. more than 3 percent for decay or wormy more than double a specified tolerance fruit. of less than 10 percent: And provided § 51.1829 Discoloration. (2) U.S. No. 3. further, that the averages for the entire Discoloration means russeting of a 1 (i) For defects at shipping point. Not lot are within the tolerances specified light shade of golden brown caused by more than 10 percent of the fruit in any for the grade. rust mite or other means. Lighter shades lot may fail to meet the requirements of Sample for Grade Determination of discoloration caused by smooth or the grade: Provided, that included in fairly smooth superficial scars or other this amount not more than 1 percent § 51.1822 Sample for grade determination. means may be allowed on a greater area, shall be for decay or wormy fruit. Each sample shall consist of 50 fruit. or darker shades may be allowed on a (ii) For defects en route or at When individual packages contain at lesser area, provided no discoloration destination. Not more than 12 percent of least 50 fruit, the sample is drawn from caused by speck type melanose or other the fruit which fail to meet the one package; when individual packages means may detract from the appearance requirements of the grade: Provided, contain less than 50 fruit, a sufficient of the fruit to a greater extent than the that included in this amount not more number of adjoining packages are shade and amount of discoloration than the following percentages shall be opened to form a 50 fruit sample. allowed in the grade. allowed for defects listed: (A) 10 percent for fruit having Size § 51.1830 Well colored. permanent defects; or, § 51.1823 Size. (B) 3 percent for decay or wormy fruit. Well colored means that a good (b) Discoloration. (a) Fruits shall be fairly uniform in yellow or better ground color (1) U.S. No. 1 Bright, U.S. No. 1, U.S. size and shall be packed in containers predominates over the green color on No. 2 Bright, and U.S. No. 2. Not more according to approved and recognized the entire fruit surface with no distinct than 10 percent of the fruit in any lot methods. green color present, and that some may fail to meet the requirements (b) ‘‘Fairly uniform in size’’ means portion of the surface has a reddish relating to discoloration as specified in that not more than 10 percent of the tangerine blush, or characteristic color each grade. No sample may have more tangerines per sample may vary more for the variety. than 15 percent of the fruit with than one-half inch in diameter. (c) In order to allow for variations § 51.1831 Fairly well colored. excessive discoloration: And provided incident to proper sizing, not more than further, that the entire lot averages Fairly well colored means that the 10 percent of the samples in any lot may within the percentage specified. surface of the fruit may have green color (2) U.S. No. 1 Golden. Not more than fail to meet the requirements of size. which does not exceed the aggregate 30 percent of the fruit shall have in Definitions area of a circle 11⁄4 inches (31.8 mm) in excess of one-third of their surface, in diameter and that the remainder of the the aggregate, affected by discoloration, § 51.1824 Mature. surface has a yellow or better ground and no part of any tolerance shall be Mature shall have the same meaning color with some portion of the surface allowed to increase this percentage. No currently assigned that term in sections showing reddish tangerine blush, or sample may have more than 40 percent 601.21 and 601.22 of the Florida Citrus characteristic color for the variety. Code of 1949, as amended (ch. 26492, of the fruit with excessive discoloration: § 51.1832 Fairly firm. And provided further, that the entire lot Laws of Florida, 1951) or, as the averages within the percentage definition of such term may hereafter be Fairly firm means that the flesh may specified. amended. be slightly soft but is not bruised or badly puffy, and that the skin has not (3) U.S. No. 1 Bronze, and U.S. No. 1 § 51.1825 Firm. Russet. At least 30 percent of the fruit become seriously separated from the Firm means that the flesh is not soft shall have in excess of one-third of the flesh of the tangerine. and the fruit is not badly puffy and that surface, in the aggregate, affected by the skin has not become materially § 51.1833 Fairly well formed. discoloration, and no part of any separated from the flesh of the tolerance shall be allowed to reduce this Fairly well formed means that the fruit tangerine. percentage. No sample may have less may not have the shape characteristic of than 20 percent of the fruit with § 51.1826 Well formed. the variety but that it is not badly required discoloration: And provided Well formed means that the fruit has deformed. further, that the entire lot averages the characteristic tangerine shape and is § 51.1834 Serious damage. within the percentage specified. not deformed. (4) U.S. No. 2 Russet. At least 10 Serious damage means any specific percent of the fruit shall have in excess § 51.1827 Damage. defect described in § 51.1838, Table I; or of one-half of the surface, in the Damage means any specific defect an equally objectionable variation of any aggregate, affected by discoloration, and described in § 51.1838, Table I; or an one of these defects, any other defect, or no part of any tolerance shall be allowed equally objectionable variation of any any combination of defects, which to reduce this percentage: And provided one of these defects, any other defect, or seriously detracts from the appearance, further, that the entire lot averages any combination of defects, which or the edible or marketing quality of the within the percentage specified. materially detracts from the appearance, fruit. 10004 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Proposed Rules § 51.1835 Reasonably well colored. § 51.1836 Very serious damage. from the appearance, or the edible or Reasonably well colored means that a Very serious damage means any marketing quality of the fruit. good yellow or reddish tangerine color specific defect described in § 51.1838, § 51.1837 Diameter. shall predominate over the green color Table I; or an equally objectionable Diameter means the greatest on at least one-half of the fruit surface variation of any one of these defects, dimension measured at right angles to a in the aggregate, and that each fruit shall any other defect, or any combination of line from stem to blossom end. show practically no lemon color. defects, which very seriously detracts § 51.1838 Classification of defects. TABLE I Factor Damage Serious damage Very serious damage Ammoniation ...... Not occurring as light speck type, Scars are cracked or dark and ag- Aggregating more than 25 percent or detracts more than discolora- gregating more than a circle 5¤8 of the surface. tion permitted in the grade. inch (15.9 mm) in diameter. Bruises ...... Segment walls are collapsed, or Segment walls are collapsed, or Fruit is split open, peel is badly rag is ruptured and juice sacs rag is ruptured and juice sacs watersoaked, or rag is ruptured are ruptured. are ruptured. and juice sacs are ruptured causing a mushy condition af- fecting all segments more than 1¤2 inch (12.7 mm) at bruised area or the equivalent of this amount, by volume, when af- fecting more than one area on the fruit. Buckskin ...... Aggregating more than a circle 3¤4 Aggregating more than 25 percent Aggregating more than 50 percent inch (19.1 mm) in diameter. of the surface. of the surface. Caked melanose ...... Aggregating more than a circle 3¤8 Aggregating more than a circle 5¤8 Aggregating more than 25 percent inch (9.5 mm) in diameter. inch (15.9 mm) in diameter. of the surface. Creasing ...... Materially weakens the skin, or Seriously weakens the skin, or ex- Very seriously weakens the skin, extends over more than one- tends over more than one-half or is distributed over practically third of the surface. of the surface. the entire surface. Dryness or mushy condition ...... Affecting all segments more than Affecting all segments more than Affecting all segments more than 1¤8 inch (3.2 mm) at stem end, 1¤4 inch (6.4 mm) at stem end, 1¤2 inch (12.7 mm) at stem end, or the equivalent of this amount, or the equivalent of this amount, or the equivalent of this amount, by volume, when occurring in by volume, when occurring in by volume, when occurring in other portions of the fruit. other portions of the fruit. other portions of the fruit. Green spots ...... Aggregating more than a circle 1¤2 Aggregating more than a circle 5¤8 Aggregating more than 25 percent inch (12.7 mm) in diameter. inch (15.9 mm) in diameter. of the surface. Oil spots ...... Aggregating more than a circle 1¤2 Aggregating more than a circle 3¤4 Aggregating more than 25 percent inch (12.7 mm) in diameter. inch (19.1 mm) in diameter. of the surface. Scab ...... Materially detracts from the shape Seriously detracts from the shape Aggregating more than 25 percent or texture, or aggregating more or texture, or aggregating more of the surface. than a circle 3¤8 inch (9.5 mm) than a circle 5¤8 inch (15.9 mm) in diameter. in diameter. Scale ...... Aggregating more than a circle 3¤8 Aggregating more than a circle 5¤8 Aggregating more than 25 percent inch (9.5 mm) in diameter. inch (15.9 mm) in diameter. of the surface. Scars, Hail, and Thorn scratches . Deep or rough aggregating more Deep or rough aggregating more Deep or rough or unsightly that than a circle 1¤4 inch (6.4 mm) than a circle 1¤2 inch (12.7 mm) appearance is very seriously af- in diameter; slightly rough with in diameter; slightly rough with fected. slight depth aggregating more slight depth aggregating more than a circle 3¤4 inch (19.1 mm) than a circle 11¤8 inches (28.6 in diameter; smooth or fairly mm) in diameter; smooth or fair- smooth with slight depth aggre- ly smooth with slight depth ag- gating more than a circle 11¤8 gregating more than 10 percent inches (28.6 mm) in diameter. of fruit surface. Skin breakdown ...... Aggregating more than a circle 1¤2 Aggregating more than a circle 3¤4 Aggregating more than 25 percent inch (12.7 mm) in diameter. inch (19.1 mm) in diameter. of the surface. Sprayburn ...... Skin is hard and aggregating Skin is hard and aggregating Aggregating more than 25 percent more than a circle 3¤4 inch (19.1 more than a circle 11¤4 inches of the surface. mm) in diameter. (31.8 mm) in diameter. Sunburn ...... Skin is flattened, dry, darkened, or Skin is hard and affects more than Aggregating more than 50 percent hard and the affected area ex- one-third of the surface. of the surface. ceeds 25 percent of the surface. NOTE: References to area or aggregate area, or length are based on a tangerine 21¤2 inches in diameter (63.5 mm). Dated: February 8, 1995. Lon Hatamiya, Administrator. [FR Doc. 95–4312 Filed 2–21–95; 8:45 am] BILLING CODE 3410±02±P i Reader Aids Federal Register Vol. 60, No. 35 Wednesday, February 22, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING FEBRUARY Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since Corrections to published documents 523±5237 the revision date of each title. 911...... 8523 Document drafting information 523±3187 3 CFR Machine readable documents 523±3447 915...... 8523, 8926 Proclamations: 920...... 7430 Code of Federal Regulations 6767...... 7427 944...... 8924 Index, finding aids & general information 523±5227 6768...... 8517 985...... 6392, 8524 Printing schedules 523±3419 6769...... 8519 997...... 6394 6770...... 9593 1005...... 7432 Laws Executive Orders: 1007...... 7432 Public Laws Update Service (numbers, dates, etc.) 523±6641 April 17, 1926 1011...... 7432 Additional Information 523±5230 (Revoked in part by 1046...... 7432 PLO 7115)...... 8956 1050...... 7434 Presidential Documents 12898 (Amended by 1212...... 7435 Executive orders and proclamations 523±5230 EO 12948)...... 6381 1240...... 9608 Public Papers of the Presidents 523±5230 12948...... 6381 1435...... 7697 Weekly Compliation of Presidential Documents 523±5230 12949...... 8169 1751...... 8171 The United States Government Manual Administrative Orders: 1755...... 9079 General Information 523±5230 Memorandums: February 7, 1995 ...... 7885 Proposed Rules: Other Services Presidential Determinations: 29...... 6452, 6453 Data base and machine readable specifications 523±3447 No. 95±14 of Feb. 6, 51...... 8973, 9990 52...... 8573 Guide to Record Retention Requirements 523±3187 1995 ...... 8521 457...... 9629 Legal staff 523±4534 4 CFR 810...... 9790 Privacy Act Compilation 523±3187 1001...... 6606, 7290 28...... 9773 Public Laws Update Service (PLUS) 523±6641 1002...... 6606, 7290 29...... 9773 TDD for the hearing impaired 523±5229 1004...... 6606, 7290 5 CFR 1005...... 6606, 7290 ELECTRONIC BULLETIN BOARD 1006...... 6606, 7290 185...... 7891 1007...... 6606, 7290 Free Electronic Bulletin Board service for Public Law numbers, 211...... 6595 1011 ...... 6396, 6606, 7290 Federal Register finding aids, and list of documents on public 214...... 6383 1012...... 6606, 7290 inspection. 202±275±0920 317...... 6383 1013...... 6606, 7290 319...... 6383 FAX-ON-DEMAND 1030...... 6606, 7290 353...... 6595 1032 ...... 6005, 6606, 7290 You may access our Fax-On-Demand service. You only need a fax 359...... 6383 1033...... 6606, 7290 machine and there is no charge for the service except for long 430...... 6595 1036...... 6606, 7290 distance telephone charges the user may incur. The list of 534...... 6383 1040...... 6606, 7290 documents on public inspection and the daily Federal Register’s 1650...... 9595 1044...... 6606, 7290 table of contents are available using this service. The document 2635...... 6390 1046...... 6606, 7290 numbers are 7050-Public Inspection list and 7051-Table of Proposed Rules: 1049...... 6606, 7290 Contents list. The public inspection list will be updated 532...... 6041 1050...... 6606, 7290 immediately for documents filed on an emergency basis. 950...... 8961 1064...... 6606, 7290 1065...... 6606, 7290 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 7 CFR FILE AND NOT THE ACTUAL DOCUMENT. Documents on 1068...... 6606, 7290 public inspection may be viewed and copied in our office located 0...... 8446 1075...... 6606, 7290 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 1...... 8446 1076...... 6606, 7290 telephone number is: 301±713±6905 25...... 6945 1079...... 6606, 7290 29...... 7429 1093...... 6606, 7290 47...... 8446 1094...... 6606, 7290 FEDERAL REGISTER PAGES AND DATES, FEBRUARY 50...... 8446 1096...... 6606, 7290 1099...... 7290 5997±6382...... 1 8169±8282...... 13 51...... 8446 52...... 8446 1106...... 6606, 7290 6383±6646...... 2 8283±8520...... 14 53...... 8446 1108...... 6606, 7290 6647±6944...... 3 8521±8920...... 15 54...... 8446 1124...... 6606, 7290 6945±7110...... 6 8921±9280...... 16 70...... 6638 1126 ...... 6606, 7290, 7465 7111±7428...... 7 9281±9594...... 17 97...... 8446 1131 ...... 6606, 7290, 7466 7429±7696...... 8 9595±9772...... 21 110...... 8118 1134...... 6606, 7290 7697±7884...... 9 9773±10004...... 22 300...... 6957 1135...... 6606, 7290 7885±8168...... 10 319 ...... 5997, 6957, 8921 1137...... 6606, 7290 322...... 5997 1138...... 6606, 7290 372...... 6000 1139...... 6606, 7290 729...... 7429 1230...... 8579 905...... 8924 1485...... 6352 ii Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Reader Aids 1717...... 8981 32...... 8526 230...... 6965 3500...... 8812 201...... 9281 Proposed Rules: Proposed Rules: 8 CFR 208...... 8177 1...... 7925 81...... 9154 103...... 6647, 9773 225...... 8177 240...... 7718 292...... 6647 325...... 8182 249...... 7718 25 CFR 299...... 6647, 9774 330...... 7701 270...... 7146 Ch. VI...... 8553 310...... 6647 344...... 7111 274...... 7146 Proposed Rules: 312...... 6647 409...... 9612 275...... 9750 Ch. VI...... 8806 313...... 6647 1617...... 7660 279...... 9750 315...... 6647 Proposed Rules: 26 CFR 316...... 6647 Ch. XVII ...... 7468 18 CFR 1...... 8932, 9776 316a...... 6647 35...... 7467 157...... 6657, 7821 300...... 8298 319...... 6647 208...... 6042 284...... 9775 Proposed Rules: 322...... 6647 225...... 6042 1310...... 8195 1 ...... 7487, 7488, 9309 324...... 6647 325...... 8582 53...... 7488 325...... 6647 Proposed Rules: 327...... 9266, 9270 327...... 6647 803...... 7925 348...... 7139 28 CFR 328...... 6647 804...... 7925 363...... 8583 805...... 7925 0...... 8932, 9777 329...... 6647 64...... 7446 330...... 6647 13 CFR 19 CFR 331...... 6647 29 CFR 107...... 7392 4...... 6966 332...... 6647 825...... 6658 332a...... 6647 Proposed Rules: 14 CFR 1910...... 7447, 9624 332b...... 6647 134...... 6464 1915...... 9624 332c ...... 6647 25...... 6616 210...... 7723 1926...... 9624 332d...... 6647 33...... 7112 353...... 9802 2619...... 8555 333...... 6647 39 ...... 6397, 6652, 6654, 8283, 355...... 9802 2676...... 8555 334...... 6647 8284, 8286, 8288, 8290, 356...... 9802 334a...... 6647 8292, 8294, 8295, 8297, 30 CFR 335...... 6647 8538, 8540, 8542, 8544, 20 CFR 250...... 9298 335a...... 6647 8927, 8929, 8930, 9613, 404...... 8140 254...... 9626 335c ...... 6647 9616, 9619, 9621 416...... 8140 870...... 9974 336...... 6647 71 ...... 6657, 6958, 6959, 6960, 422...... 7117 886...... 9974 337...... 6647 7115, 7116, 7439, 7441, Proposed Rules: 887...... 9974 338...... 6647 7442, 7821, 8164, 8165, 217...... 7728 888...... 9974 339...... 6647 8166, 9281, 9282, 9283, 226...... 7729 914...... 6400 340...... 6647 9285, 9286, 9287 232...... 7729 917...... 8558 343b...... 6647 91...... 8166 926...... 6006 344...... 6647 97 ...... 6398, 6961, 6962, 6963, 21 CFR 931...... 8560 499...... 6647 9287, 9289 14...... 9296 121...... 6616 Proposed Rules: 9 CFR 101...... 7711 Ch. II...... 6977, 7152 135...... 6616 178...... 8545 Ch. II ...... 8446 302...... 6919 6...... 8209 310...... 8916 18...... 8209 91...... 9609 Proposed Rules: 510...... 7121 19...... 8209 92...... 9611 Ch. I...... 6045, 9302 558...... 7121, 8547 20...... 8209 202...... 8446 1...... 7380 Proposed Rules: 21...... 8209 Proposed Rules: 25 ...... 6456, 6632, 7479 20...... 8772 22...... 8209 50...... 9631 33...... 7380 101...... 8989 23...... 8209 71...... 9632 39 ...... 6045, 6459, 7140, 7143, 111...... 8989 26...... 8209 77...... 9631 7480, 7482, 7485, 7919, 170...... 8989 27...... 8209 92...... 7137, 9631 7920, 7922, 7924, 8205, 201...... 9554 29...... 8209 94 ...... 6454, 7138, 9633 8206, 8591, 8593, 8595, 310...... 6892, 8989 33...... 8209 98...... 7137 9302, 9304, 9645, 9647, 876...... 8595 35...... 8209 308...... 6774 9649, 9792, 9794, 9796, 896...... 9762 250...... 9312 310...... 6774 9799, 9800 756...... 7926 318...... 6774, 6975 71 ...... 6461, 6462, 6686, 6975, 22 CFR 914...... 9313 320...... 6774 7718, 9652, 9653 43...... 7443 917...... 9314 325...... 6774 121...... 6632, 8490 226...... 7712 935...... 9317 326...... 6774 125...... 6632 327...... 6774 514...... 8547 135...... 6632 31 CFR 381...... 6774, 6975 Proposed Rules: 15 CFR 140...... 7737 500...... 8933 10 CFR 550...... 8300 15a...... 9291 23 CFR 20...... 7900 575...... 6376 925...... 9294 Proposed Rules: Proposed Rules: 630...... 9306 32 CFR Chapter I...... 9634 16 CFR 50...... 7467, 9634 40a...... 8936 24 CFR 52...... 7467 305...... 9295 113...... 8940 100...... 7467 1500...... 8188 91...... 6967 199...... 6013 Proposed Rules: 207...... 9297 320...... 7908 11 CFR Ch. 1 ...... 6463 213...... 9297 552...... 8305 100...... 7862 307...... 8312 221...... 9297 553...... 8305 104...... 7862 310...... 8313 236...... 9297 Proposed Rules: 113...... 7862 1700...... 9654 390...... 9530 199...... 7489 395...... 9530 12 CFR 17 CFR 585...... 9734 33 CFR 3...... 7903 140...... 8194 907...... 6399 117 ...... 6658, 7121, 7122, 8941 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Reader Aids iii 161...... 8942 81...... 7124, 7453 43 CFR 78...... 8618 165 ...... 7909, 7910, 8943 82...... 7386 4...... 9894 80...... 8618 Proposed Rules: 93...... 7449 12...... 9786 87...... 8618 Ch. I...... 7927, 8993 180 .....6032, 7456, 7457, 7458, 18...... 9786 90...... 8341, 8618 117 ...... 7928, 7930, 8209 9780, 9781, 9783 1780...... 9894 94...... 8618 137...... 7652 185...... 9783 4100...... 9894 95...... 8618 186...... 9783 97...... 8618 Proposed Rules: 34 CFR 261...... 7366, 7824 11...... 7154, 7155 270...... 6666 48 CFR 74...... 6660 2920...... 7877 271...... 7824 75...... 6660 8360...... 7743 31...... 7133 300...... 8570, 8570 99...... 8563 Public Land Orders: Proposed Rules: Proposed Rules: 302...... 7824 28...... 6602 372...... 9299 7114...... 8571 668...... 6940 7115...... 8956 32...... 6602 Proposed Rules: 45...... 7744 36 CFR Ch. I ...... 7931 44 CFR 52...... 6602, 7744 51...... 7508 7...... 6021 64...... 6034, 6035 52 ...... 6049, 6051, 6052, 6467, Proposed Rules: 65...... 6403, 6404 49 CFR 6687, 7154, 7742, 7931, 242...... 6466 67...... 6407 173...... 7627 7934, 8612, 8993, 8994, 1400...... 7506 206...... 7130 192...... 7133 9802, 9810 501...... 9788 63 ...... 8333, 9802, 9812, 9813 Proposed Rules: 37 CFR 571 ...... 6411, 7461, 8199, 8202 70...... 8335 67...... 6470 251...... 8196, 8198 80...... 8341 Proposed Rules: 252...... 8196 46 CFR 81...... 9813 214...... 8619 253...... 8196 82...... 7390 15...... 8308 225...... 9001 254...... 8196 86...... 7404 25...... 7131 653...... 7100 255...... 8196 93...... 7508 160...... 7131 654...... 7100 256...... 8196 180 .....6052, 7509, 8612, 8615, 500...... 9786 257...... 8196 9815, 9816 Proposed Rules: 50 CFR 258...... 8196 185...... 7511 Ch. I ...... 6687 17...... 6671, 6968 259...... 8196, 8198 186...... 7511 381...... 6067 227...... 8956 Proposed Rules: 261...... 6054, 7513 572...... 6482 229...... 6036 1...... 8609 271...... 7513 611 ...... 7288, 8470, 8479 3...... 8609 300 ...... 7934, 8212, 8616 47 CFR 625...... 8958 1...... 9889 642...... 7134, 7716 38 CFR 302...... 7513 430...... 9813 2...... 8309 651...... 6446 3 ...... 6660, 9626, 9627 435...... 9428 22...... 9889 663...... 6039 4...... 7124 761...... 7742 24...... 8571 672 .....7136, 7288, 7917, 8470, 64...... 7131 8478 39 CFR 41 CFR 73...... 6670, 9628 675 ...... 6974, 8479, 8960 20...... 7912 90...... 9787 676 ...... 6448, 7288, 8470, 8479 233...... 8305 101±40...... 7129 97...... 7459 201±3...... 7715 Proposed Rules: Proposed Rules: Proposed Rules: Ch. VI...... 7156 201±9...... 7715 111...... 6047, 7154 Ch. I...... 6482, 8994 17 ...... 8342, 8620, 9484 201±18...... 7715 265...... 8610 0...... 8618 100...... 6466 201±20...... 7715 3001...... 8211 1...... 8618, 8995 222...... 6977 201±21...... 7715 17...... 8618 424...... 7744 201±23...... 7715 40 CFR 21...... 8618 611...... 8114 201±39...... 7715 51...... 7449 22...... 8618 638...... 9320 52 ...... 6022, 6027, 6401, 7124, 23...... 8618 646...... 8620 7453, 7713, 7715, 7913, 42 CFR 25...... 8618 649...... 7936 8306, 8563, 8565, 8566, 100...... 7678 63...... 8996 650...... 7936, 8622 8943, 8948, 8949, 9778 410...... 8951 64...... 8217 651...... 7936 63...... 7627 Proposed Rules: 73 ...... 6068, 6483, 6490, 6689, 652...... 6977 70...... 8772 52a...... 9560 8618, 9001 675...... 8114 80...... 6030 482...... 7514 74...... 8618 676...... 8114