Pages 24283±24500 Vol. 64 5±6±99 eDt 6AR9 90 a 5 99Jt134 O000Fm001Ft41 ft41 :F\M0MW.X fm7PsN:06MYWS pfrm07 E:\FR\FM\06MYWS.XXX Sfmt4710 Fmt4710 Frm00001 PO00000 Jkt183247 19:01May05, 1999 VerDate 26-APR-99 No. 87 federal register May 6,1999 Thursday announcement ontheinsidecoverofthisissue. For informationonbriefingsinWashington,DC,see Briefings onhowtousetheFederalRegister 1 II Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999
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Contents Federal Register Vol. 64, No. 87
Thursday, May 6, 1999
Agriculture Department Commodity Futures Trading Commission See Farm Service Agency NOTICES See Forest Service Committees; establishment, renewal, termination, etc.: See Rural Business-Cooperative Service Agricultural Advisory Committee, 24372 See Rural Housing Service Contract market proposals: See Rural Utilities Service Dual trading prohibitions; exemption petitions— Chicago Mercantile Exchange, 24372 Alcohol, Tobacco and Firearms Bureau Kansas City Board of Trade— PROPOSED RULES Western natural gas index, 24372–24373 Alcohol; viticultural area designations: Applegate Valley, OR, 24308–24311 Customs Service NOTICES Army Department Customhouse broker license cancellation, suspension, etc.: See Engineers Corps C.G. Staff Cos. et al., 24449 NOTICES Agency information collection activities: Proposed collection; comment request, 24373 Defense Department Patent licenses; non-exclusive, exclusive, or partially See Army Department exclusive: See Engineers Corps Vaccine against gram negative bacteria; correction, 24451 PROPOSED RULES Federal Acquisition Regulation (FAR): Bonneville Power Administration Review of award fee determinations, 24471–24473 NOTICES Power subscription strategy: Sales to customers; contracts; draft policy proposal, Education Department 24376–24382 NOTICES Subscription power sales and service standards: Grants and cooperative agreements; availability, etc.: Federal power purchase; draft policy, 24382–24386 National Institute on Disability and Rehabilitation Research— Disability and Rehabilitation Research Projects and Broadcasting Board of Governors Centers Program; correction, 24451 NOTICES Meetings: Meetings; Sunshine Act, 24319 Federal Interagency Coodinating Council, 24374–24375 Centers for Disease Control and Prevention NOTICES Employment and Training Administration Agency information collection activities: NOTICES Proposed collection; comment request, 24396–24398 Adjustment assistance: Grants and cooperative agreements; availability, etc.: ARCO Exploration and Production Technology, 24417 Excellence in health statistics centers, 24398–24401 Baker Hughes Inteq, 24417–24418 Baroid Drilling Fluids, 24418 Children and Families Administration BP/Amoco, et al., 24418 NOTICES Exolon-ESK Co., 24418 Meetings: Guilford Fibers, Inc., 24419 President’s Committee on Mental Retardation, 24401– Guilford Mills, Inc., 24419 24402 Key Energy Services, Inc., 24419 Shape Global, 24419–24420 Civil Rights Commission Siemens Energy & Automation, 24420 NOTICES Union Pacific Fuels, Inc., et al., 24420 Meetings; State advisory committees: Wilson Supply et al., 24420–24421 New Mexico, 24319 NAFTA transitional adjustment assistance: Oro Nevada Exploration, Inc., 24421 Coast Guard RULES Energy Department Ports and waterways safety: See Bonneville Power Administration New York Harbor, NY; safety zone, 24286–24288 See Federal Energy Regulatory Commission NOTICES Commerce Department Atomic energy agreements; subsequent arrangements, See Export Administration Bureau 24375–24376 See International Trade Administration Applications, hearings, determinations, etc.: See National Oceanic and Atmospheric Administration Electric Clearinghouse, Inc., 24375
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Engineers Corps Transcontinental Gas Pipe Line Corp., 24386 NOTICES Williston Basin Interstate Pipeline Co., 24386–24387 Environmental statements; availability, etc.: Queen Anne’s County, MD; Site 104; open-water Federal Maritime Commission placement of dredged material; correction, 24451 NOTICES Environmental statements; notice of intent: Agreements filed, etc., 24394 Dade County Beach Erosion Control and Hurricane Freight forwarder licenses: Protection Project, FL, 24373–24374 I.C.E., 24394 S.A.T. Sea & Air Transport Inc., 24394–24395 Environmental Protection Agency RULES Federal Reserve System Clean Air Act: NOTICES State operating permits programs— Banks and bank holding companies: Alaska, 24288–24292 Change in bank control, 24395 Pesticides; tolerances in food, animal feeds, and raw Formations, acquisitions, and mergers, 24395 agricultural commodities: Permissible nonbanking activities, 24395–24396 Myclobutanil, 24292–24295 NOTICES Food and Drug Administration Grants and cooperative agreements; availability, etc.: NOTICES Local ground water and source water protection; small, Agency information collection activities: rural, or economically disadvantaged communities, Proposed collection; comment request, 24402–24406 24392–24394 Submission for OMB review; comment request, 24406– 24407 Executive Office of the President Food additive petitions: See Trade Representative, Office of United States Ciba Specialty Chemicals Corp., 24407–24408 Food for human consumption: Export Administration Bureau Identity standards deviation; market testing permits— NOTICES Kraft Foods, Inc., 24408 Export privileges; actions affecting: Reports and guidance documents; availability, etc.: McNeil, William F., and American Protection Corp., Immunotoxicity testing framework; draft guidance 24320–24321 availability, 24408–24409 Meetings: Regulations and Procedures Technical Advisory Forest Service Committee, 24321 NOTICES Environmental statements; notice of intent: Farm Service Agency Payette National Forest, ID, 24318–24319 RULES Program regulations: General Services Administration Farm labor housing loans and grants; requests processing, PROPOSED RULES 24475–24482 Federal Acquisition Regulation (FAR): Review of award fee determinations, 24471–24473 Federal Aviation Administration NOTICES RULES Meetings: Standard instrument approach procedures, 24283–24286 President’s Commission on Celebration of Women in NOTICES American History, 24396 Agency information collection activities: Proposed collection; comment request, 24447 Health and Human Services Department Aircraft: See Centers for Disease Control and Prevention Two-engine aircraft operation approval criteria; 207- See Children and Families Administration minute extended range operations; correction, 24451 See Food and Drug Administration Passenger facility charges; applications, etc.: See National Institutes of Health Atlantic City International Airport, NJ, 24447–24448 See Program Support Center Boise Air Terminal Airport, ID, 24448–24449 John F. Kennedy International Airport, NY; LaGuardia Housing and Urban Development Department Airport, NY; and Newark International Airport, NJ, NOTICES 24449 Agency information collection activities: Proposed collection; comment request, 24413–24414 Federal Election Commission Grants and cooperative agreements; availability, etc.: NOTICES Housing assistance payments (Section 8)— Meetings; Sunshine Act, 24394 Non-elderly persons with disabilities in support of designated housing plans et al., 24414–24415 Federal Energy Regulatory Commission NOTICES Indian Affairs Bureau Environmental statements; availability, etc.: PROPOSED RULES Independence Pipeline Co., et al.; Independence Pipeline Financial assistance and social services programs, 24296– and Market Link Expansion Projects; meetings, 24387 24308 Hydroelectric applications, 24387–24391–24392 NOTICES Applications, hearings, determinations, etc.: Meetings: Texas Gas Transmission Corp., 24386 Indian education topics; tribal consultation, 24415
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Interior Department National Center for Research Resources, 24410 See Indian Affairs Bureau National Heart, Lung, and Blood Institute, 24410 See Land Management Bureau National Human Genome Research Institute, 24410 National Institute of Allergy and Infectious Diseases, Internal Revenue Service 24412 NOTICES National Institute of Diabetes and Digestive and Kidney Meetings: Diseases, 24412–24413 Tax software developers, 24449–24450 National Institute of Environmental Health Sciences, 24411 International Trade Administration National Institute of Mental Health, 24411–24412 NOTICES National Institute of Neurological Disorders and Stroke, Antidumping: 24410–24411 Brake rotors from— China, 24322–24327 National Oceanic and Atmospheric Administration Circular welded non-alloy steel pipe from— NOTICES Korea, 24327–24328 Agency information collection activities: Freshwater crawfish tail meat from— Submission for OMB review; comment request, 24371 China, 24328–24329 Permits: Hot-rolled flat-rolled carbon-quality steel from— Marine mammals, 24371 Japan, 24329–24370 Russian Federation, 24329 National Transportation Safety Board Oil country tubular goods from— NOTICES Mexico, 24370 Meetings; Sunshine Act, 24426 Antidumping and countervailing duties: Hot-rolled flat-rolled carbon-quality steel from— Nuclear Regulatory Commission Brazil, 24321–24322 Countervailing duties: NOTICES Cut-to-length carbon steel plate from— Applications, hearings, determinations, etc.: Mexico, 24370–24371 Boston Edison Co., 24426–24427
International Trade Commission Office of United States Trade Representative NOTICES See Trade Representative, Office of United States Agency information collection activities: Submission for OMB review; comment request, 24416– Pension and Welfare Benefits Administration 24417 NOTICES Employee benefit plans; prohibited transaction exemptions: Justice Department Standard Bank Employees et al., 24422–24424 See Prisons Bureau Prisons Bureau Labor Department PROPOSED RULES See Employment and Training Administration Inmate control, custody, care, etc.: See Pension and Welfare Benefits Administration Smoking/no smoking areas, 24467–24469
Land Management Bureau Program Support Center NOTICES NOTICES Environmental statements; availability, etc.: Agency information collection activities: Gravel Mining Operation, CA, 24415–24416 Proposed collection; comment request, 24413 Utah public lands; new wilderness study areas, 24416
Maritime Administration Public Health Service PROPOSED RULES See Centers for Disease Control and Prevention U.S.-flag commercial vessels: See Food and Drug Administration U.S.-flag vessels of 100 feet or greater; eligibility to obtain See National Institutes of Health commercial fisheries documents, 24311–24317 Rural Business-Cooperative Service National Aeronautics and Space Administration RULES PROPOSED RULES Program regulations: Federal Acquisition Regulation (FAR): Farm labor housing loans and grants; requests processing, Review of award fee determinations, 24471–24473 24475–24482
National Archives and Records Administration Rural Housing Service NOTICES RULES Agency records schedules; availability, 24424–24426 Program regulations: Farm labor housing loans and grants; requests processing, National Institutes of Health 24475–24482 NOTICES NOTICES Meetings: Grants and cooperative agreements; availability, etc.: National Cancer Institute, 24409 Off-farm housing, 24483–24485
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Rural Utilities Service Transportation Department RULES See Coast Guard Program regulations: See Federal Aviation Administration Farm labor housing loans and grants; requests processing, See Maritime Administration 24475–24482 NOTICES Meetings: Securities and Exchange Commission Amtrak Reform Council; seminar, 24446–24447 RULES Treasury Department Investment companies: See Alcohol, Tobacco and Firearms Bureau Investment company assets; custody outside the United See Customs Service States, 24487–24488 PROPOSED RULES See Internal Revenue Service PROPOSED RULES Investment companies: Freedom of Information Act; implementation, 24453–24466 Investment company assets; custody outside the United States, 24489–24499 NOTICES Self-regulatory organizations; proposed rule changes: Separate Parts In This Issue National Association of Securities Dealers, Inc., 24430– 24435 Part II New York Stock Exchange, Inc., 24435–24437 Treasury Department, 24453–24466 Applications, hearings, determinations, etc.: Bankers Trust co., et al., 24427–24430 Part III Department of Justice, Bureau of Prisons, 24467–24469 Small Business Administration Part IV NOTICES Department of Defense, General Services Administration, Meetings; district and regional advisory councils: National Aeronautics and Space Administration, Maine, 24437–24438 24471–24473
Tennessee Valley Authority Part V NOTICES Department of Agriculture, Farm Service Agency, Rural Agency information collection activities: Business-Cooperative Service, Rural Housing Service, Proposed collection; comment request, 24438 Rural Utilities Service, 24475–24485
Trade Representative, Office of United States Part VI NOTICES Securities and Exchange Commission, 24487–24499 Intellectual property rights protection, countries denying; policies and practices: Argentina et al., 24438–24439 Reader Aids Reports and guidance documents; availability, etc.: Consult the Reader Aids section at the end of this issue for Trade expansion priorities pursuant to Executive Order phone numbers, online resources, finding aids, reminders, 13116, Super 301, 24439–24446 and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR 1940...... 24476 1944...... 24476 14 CFR 97 (2 documents) ...... 24283, 24284 17 CFR 270...... 24488 Proposed Rules: 270...... 24489 25 CFR Proposed Rules: 20...... 24296 27 CFR Proposed Rules: 9...... 24308 28 CFR Proposed Rules: 551...... 24468 31 CFR Proposed Rules: 1...... 24454 33 CFR 165...... 24286 40 CFR 61...... 24288 63...... 24288 180...... 24292 46 CFR Proposed Rules: 356...... 24311 48 CFR Proposed Rules: 16...... 24472 48...... 24472 52...... 24472
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Rules and Regulations Federal Register Vol. 64, No. 87
Thursday, May 6, 1999
This section of the FEDERAL REGISTER For Purchase—Individual SIAP identification and the amendment contains regulatory documents having general copies may be obtained from: number. applicability and legal effect, most of which 1. FAA Public Inquiry Center (APA– The Rule are keyed to and codified in the Code of 200), FAA Headquarters Building, 800 Federal Regulations, which is published under Independence Avenue, SW., This amendment to part 97 of the 50 titles pursuant to 44 U.S.C. 1510. Washington, DC 20591; or Federal Aviation Regulations (14 CFR The Code of Federal Regulations is sold by 2. The FAA Regional Office of the part 97) establishes, amends, suspends, the Superintendent of Documents. Prices of region in which the affected airport is or revokes SIAPs. For safety and new books are listed in the first FEDERAL located. timeliness of change considerations, this REGISTER issue of each week. By Subscription—Copies of all SIAPs, amendment incorporates only specific mailed once every 2 weeks, are for sale changes contained in the content of the by the Superintendent of Documents, following FDC/P NOTAMs for each DEPARTMENT OF TRANSPORTATION US Government Printing Office, SIAP. The SIAP information in some Washington, DC 20402. previously designated FDC/Temporary Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to 14 CFR Part 97 Donald P. Pate, Flight Procedure Standards Branch (AMCAFS–420), FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled. [Docket No. 29558; Amdt. No. 1929] Flight Technologies and Programs Division, Flight Standards Service, The FDC/P NOTAMs for the SIAPs contained in this amendment are based Standard Instrument Approach Federal Aviation Administration, Mike on the criteria contained in the U.S. Procedures; Miscellaneous Monroney Aeronautical Center, 6500 Standard for Terminal Instrument Amendments South MacArthur Blvd. Oklahoma City, OK. 73169 (Mail Address: P.O. Box Procedures (TERPS). In developing AGENCY: Federal Aviation 25082 Oklahoma City, OK. 73125) these chart changes to SIAPs by FDC/P Administration (FAA), DOT. telephone: (405) 954–4164. NOTAMs, the TERPS criteria were applied to only these specific conditions ACTION: Final rule. SUPPLEMENTARY INFORMATION: This existing at the affected airports. All amendment to part 97 of the Federal SUMMARY: This amendment establishes, SIAP amendments in this rule have Aviation Regulations (14 CFR part 97) amends, suspends, or revokes Standard been previously issued by the FAA in a establishes, amends, suspends, or Instrument Approach Procedures National Flight Data Center (FDC) revokes Standard Instrument Approach (SIAPS) for operations at certain Notice to Airmen (NOTAM) as an Procedures (SIAPs). The complete airports. These regulatory actions are emergency action of immediate flight regulatory description on each SIAP is needed because of changes occurring in safety relating directly to published contained in the appropriate FAA Form the National Airspace System, such as aeronautical charts. The circumstances 8260 and the National Flight Data the commissioning of new navigational which created the need for all these Center (FDC)/Permanent (P) Notices to facilities, addition of new obstacles, or SIAP amendments requires making Airmen (NOTAM) which are changes in air traffic requirements. them effective in less than 30 days. incorporated by reference in the These changes are designed to provide Further, the SIAPs contained in this amendment under 5 U.S.C. 552(a), 1 safe and efficient use of the navigable amendment are based on the criteria CFR part 51, and § 97.20 of the Federal airspace and to promote safe flight contained in the TERPS. Because of the Aviation’s Regulations (FAR). Materials operations under instrument flight rules close and immediate relationship incorporated by reference are available at the affected airports. between these SIAPs and safety in air for examination or purchase as stated commerce, I find that notice and public DATES: An effective date for each SIAP above. procedure before adopting these SIAPs is specified in the amendatory The large number of SIAPs, their are impracticable and contrary to the provisions. complex nature, and the need for a public interest and, where applicable, Incorporation by reference-approved special format make their verbatim that good cause exists for making these by the Director of the Federal Register publication in the Federal Register SIAPs effective in less than 30 days. on December 31, 1980, and reapproved expensive and impractical. Further, as of January 1, 1982. airmen do not use the regulatory text of Conclusion ADDRESSES: Availability of matter the SIAPs, but refer to their graphic The FAA has determined that this incorporated by reference in the depiction of charts printed by regulation only involves an established amendment is as follows: publishers of aeronautical materials. body of technical regulations for which For Examination— Thus, the advantages of incorporation frequent and routine amendments are 1. FAA Rules Docket, FAA by reference are realized and necessary to keep them operationally Headquarters Building, 800 publication of the complete description current. It, therefore—(1) is not a Independence Avenue, SW., of each SIAP contained in FAA form ‘‘significant regulatory action’’ under Washington, DC 20591; documents is unnecessary. The Executive Order 12866; (2) is not a 2. The FAA Regional Office of the provisions of this amendment state the ‘‘significant rule’’ under DOT region in which affected airport is affected CFR (and FAR) sections, with Regulatory Policies and Procedures (44 located; or the types and effective dates of the FR 11034; February 26, 1979); and (3) 3. The Flight Inspection Area Office SIAPs. This amendment also identifies does not warrant preparation of a which originated the SIAP. the airport, its location, the procedure regulatory evaluation as the anticipated
VerDate 26-APR-99 09:01 May 05, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\A06MY0.018 pfrm01 PsN: 06MYR1 24284 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations impact is so minimal. For the same Federal Aviation Regulations (14 CFR §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, reason, the FAA certifies that this part 97) is amended by establishing, 97.3 [Amended] amendment will not have a significant amending, suspending, or revoking By amending: § 97.23 VOR, VOR/ economic impact on a substantial Standard Instrument Approach DME, VOR or TACAN, and VOR/DME number of small entities under the Procedures, effective at 0901 UTC on or TACAN; § 97.25 LOC, LOC/DME, criteria of the Regulatory Flexibility Act. the dates specified, as follows: LDA, LDA/DME SDF, SDF/DME; § 97.27 List of Subjects in 14 CFR Part 97 PART 97ÐSTANDARD INSTRUMENT NDB, NDB/DME; § 97.29 ILS, ILS/DME, Air traffic control, Airports, APPROACH PROCEDURES ISMLS, MLS, MLS/DME, MLS/RNAV; Navigation (air). § 97.31 RADAR SIAPs; § 97.33 RNAV Issued in Washington, DC on 30 April 1. The authority citation for part 97 is SIAPs; and § 97.35 COPTER DIAPs, 1999. revised to read as follows: identified as follows: L. Nicholas Lacey, Authority: 49 U.S.C. 40103, 40113, 40120, ** * effective upon publication Director, Flight Standards Service. 44701; 49 U.S.C. 106(g); and 14 CFR Adoption of the Amendment 11.49(b)(2). Accordingly, pursuant to the 2. Part 97 is amended to read as authority delegated to me, part 97 of the follows:
FDC date State City Airport FDC No. SIAP
04/14/99 ...... AL Evergreen ...... Middleton Field ...... FDC 9/2496 VOR/DME or GPS RWY 9 Amdt 2... 04/14/99 ...... PA Monongahela ...... Monongahela/Rostraver ...... FDC 9/2482 GPS RWY 25 Orig... 04/15/99 ...... ME Greenville ...... Greenville Muni ...... FDC 9/2513 NDB or GPS RWY 14 Amdt 4A... 04/15/99 ...... ME Greenville ...... Greenville Seaplane Base ...... FDC 9/2517 NDB or GPS±A Amdt 4B... 04/16/99 ...... KY Flemingsburg ...... Fleming-Mason ...... FDC 9/2556 LOC RWY 25 Orig... 04/16/99 ...... KY Glasgow ...... Glasgow Muni ...... FDC 9/2569 SDF RWY 7 Amdt 9... 04/16/99 ...... KY Louisville ...... Louisville Intl-Standiford Field ...... FDC 9/2536 ILS RWY 35R (CAT I, II, III), Amdt 2... 04/16/99 ...... MA Nantucket ...... Nantucket Memorial ...... FDC 9/2545 NDB RWY 24 Amdt 11... 04/16/99 ...... MA Nantucket ...... Nantucket Memorial ...... FDC 9/2546 ILS RWY 24 Amdt 15A... 04/16/99 ...... MA Nantucket ...... Nantucket Memorial ...... FDC 9/2547 VOR or GPS RWY 24 Amdt 13... 04/16/99 ...... MA Nantucket ...... Nantucket Memorial ...... FDC 9/2548 GPS RWY 33 Orig... 04/19/99 ...... ND Grand Forks ...... Grand Forks Intl ...... FDC 9/2605 LOC BC RWY 17R, Amdt 12A... 04/19/99 ...... ND Grand Forks ...... Grand Forks Intl ...... FDC 9/2606 VOR or GPS RWY 17R, Amdt 5... 04/19/99 ...... ND Grand Forks ...... Grand Forks Intl ...... FDC 9/2608 ILS RWY 35L, Amdt 11... 04/19/99 ...... ND Grand Forks ...... Grand Forks Intl ...... FDC 9/2610 GPS RWY 26, Orig... 04/19/99 ...... NJ Teterboro ...... Teterboro ...... FDC 9/2599 GPS RWY 24 Orig... 04/21/99 ...... MA Boston ...... General Edward Lawrence Logan Intl FDC 9/2666 ILS RWY 15R Orig-A... 04/21/99 ...... MA Marshfield ...... Marshfield ...... FDC 9/2667 NDB RWY 6 Amdt 4... 04/21/99 ...... ND Grand Forks ...... Grand Forks Intl ...... FDC 9/2619 VOR or SPS RWY 35L, Amdt 6... 04/21/99 ...... NM Socorro ...... Socorro Muni ...... FDC 9/2655 GPS RWY 33, Orig... 04/21/99 ...... NM Socorro ...... Socorro Muni ...... FDC 9/2656 NDB±B, Orig... 04/21/99 ...... NM Socorro ...... Socorro Muni ...... FDC 9/2657 VOR/DME or GPS±A, Orig... 04/22/99 ...... MA Marshfield ...... Marshfield ...... FDC 9/2698 GPS RWY 6 Orig... 04/22/99 ...... MO Bowling Green ...... Bowling Green Muni ...... FDC 9/2687 VOR/DME or GPS±A, Amdt 1A... 04/22/99 ...... VA Portsmouth ...... Hampton Roads ...... FDC 9/2700 NDB or GPS RWY 2, Amdt 6A... 04/27/99 ...... GA Statesboro ...... Statesboro Muni ...... FDC 9/2776 LOC RWY 32, Amdt 4A... 04/27/99 ...... PA Allentown ...... LeHigh Valley Intl ...... FDC 9/2804 ILS RWY 6 Amdt 21... 04/27/99 ...... PA Harrisburg ...... Capital City ...... FDC 9/2805 ILS RWY 8 Amdt 10B... 04/27/99 ...... PA Harrisburg ...... Harrisburg Intl ...... FDC 9/2806 ILS RWY 13 Orig... 04/27/99 ...... UT Cedar City ...... Cedar City Regional ...... FDC 9/2800 VOR RWY 20, Amdt 5...
[FR Doc. 99–11391 Filed 5–5–99; 8:45 am] DEPARTMENT OF TRANSPORTATION SUMMARY: This amendment establishes, BILLING CODE 4910±01±M amends, suspends, or revokes Standard Federal Aviation Administration Instrument Approach Procedures (SIAPs) for operations at certain 14 CFR Part 97 airports. These regulatory actions are needed because of the adoption of new [Docket No. 29557; Amdt. No. 1928] or revised criteria, or because of changes Standard Instrument Approach occurring in the National Airspace Procedures; Miscellaneous System, such as the commissioning of Amendments new navigational facilities, addition of new obstacles, or changes in air traffic AGENCY: Federal Aviation requirements. These changes are Administration (FAA), DOT. designed to provide safe and efficient use of the navigable airspace and to ACTION: Final rule. promote safe flight operations under
VerDate 26-APR-99 15:17 May 05, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\06MYR1.XXX pfrm07 PsN: 06MYR1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations 24285 instrument flight rules at the affected publication in the Federal Register amendment will not have a significant airports. expensive and impractical. Further, economic impact on a substantial DATES: An effective date for each SIAP airmen do not use the regulatory text of number of small entities under the is specified in the amendatory the SIAPs, but refer to their graphic criteria of the Regulatory Flexibility Act. depiction on charts printed by provisions. List of Subjects in 14 CFR Part 97 Incorporation by reference-approved publishers of aeronautical material. by the Director of the Federal Register Thus, the advantages of incorporation Air traffic control, Airports, on December 31, 1980, and reapproved by reference are realized and Navigation (air). as of January 1, 1982. publication of the complete description Issued in Washington, DC, on April ADDRESSES: Availablity of matters of each SIAP contained in FAA form 30, 1999. incorporated by reference in the documents is unnecessary. The L. Nicholas Lacey, provisions of this amendment state the amendment is as follows: Director, Flight Standards Service. For Examination— affected CFR (and FAR) sections, with 1. FAA Rules Docket, FAA the types and effective dates of the Adoption of the Amendment Headquarters Building, 800 SIAPs. This amendment also identified Accordingly, pursuant to the Independence Avenue, SW., the airport, its location, the procedure authority delegated to me, part 97 of the Washington, DC 20591; identification and the amendment Federal Aviation Regulations (14 CFR 2. The FAA Regional Office of the number. part 97) is amended by establishing, region in which the affected airport is The Rule amending, suspending, or revoking located; or This amendment to part 97 is effective Standard Instrument Approach 3. The Flight Inspection Area Office upon publication of each separate SIAP Procedures, effective at 0901 UTC on which originated the SIAP. the dates specified, as follows: For Purchase—Individual SIAP as contained in the transmittal. Some copies may be obtained from: SIAP amendments may have been PART 97ÐSTANDARD INSTRUMENT 1. FAA Public Inquiry Center (APA– previously issued by the FAA in a APPROACH PROCEDURES 200), FAA Headquarters Building, 800 National Flight Data Center (NFDC) Independence Avenue, SW., Notice to Airmen (NOTAM) as an 1. The authority citation for part 97 is Washington, DC 20591; or emergency action of immediate flight revised to read as follows: safety relating directly to published 2. The FAA Regional Office of the Authority: 49 U.S.C. 106(g), 40103, 40113, region in which the affected airport is aeronautical charts. The circumstances 40120, 44701; and 14 CFR 11.49(b)(2). located. which created the need for some SIAP amendments may require making them 2. Part 97 is amended to read as By Subscription—Copies of all SIAPs, follows: mailed once every 2 weeks, are for sale effective in less than 30 days. For the by the Superintendent of Documents, remaining SIAPs, an effective date at §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 U.S. Government Printing Office, least 30 days after publication is and 97.35 [Amended] Washington, DC 20402. provided. Further, the SIAPs contained in this By amending: § 97.23 VOR, VOR/ FOR FURTHER INFORMATION CONTACT: amendment are based on the criteria DME, VOR or TACAN, and VOR/DME Donald P. Pate, Flight Procedure contained in the U.S. Standard for or TACAN; § 97.25 LOC, LOC/DME, Standards Branch (AMCAFS–420), Terminal Instrument Procedures LDA, LDA/DME, SDF, SDF/DME; Flight Technologies and Programs (TERPS). In developing these SIAPs, the § 97.27 NDB, NDB/DME; § 97.29 ILS, Division, Flight Standards Service, TERPS criteria were applied to the ILS/DME, ISLMLS, MLS, MLS/DME, Federal Aviation Administration, Mike conditions existing or anticipated at the MLS/RNAV; § 97.31 RADAR SIAPs; Monroney Aeronautical Center, 6500 affected airports. Because of the close § 97.33 RNAV SIAPs; and § 97.35 South MacArthur Blvd., Oklahoma City, and immediate relationship between COPTER SIAPs, identified as follows: OK 73169 (Mail Address: P.O. Box these SIAPs and safety in air commerce, * * * Effective May 20, 1999 25082 Oklahoma City, OK 73125) I find that notice and public procedure De Kalb, IL, De Kalb Taylor Muni, LOC/DME telephone: (405) 954–4164. before adopting these SIAPs are RWY 2, Orig SUPPLEMENTARY INFORMATION: This impracticable and contrary to the public De Kalb, IL, De Kalb Taylor Muni, NDB RWY amendment to part 97 of the Federal interest and, where applicable, that 27, Amdt 1 Aviation Regulations (14 CFR part 97) good cause exists for making some De Kalb, IL, De Kalb Taylor Muni, GPS RWY establishes, amends, suspends, or SIAPs effective in less than 30 years. 9, Amdt 1 revokes Standard Instrument Approach De Kalb, IL, De Kalb Taylor Muni, VOR/DME Procedures (SIAPs). The complete Conclusion OR GPS RWY 27, Amdt 5 regulatory description of each SIAP is The FAA has determined that this Indianapolis, IN, Indianapolis Intl, ILS RWY 5L, Amdt 1 contained in official FAA form regulation only involves an established Indianapolis, IN, Indianapolis Intl, ILS RWY documents which are incorporated by body of technical regulations for which 23R, Amdt 1 reference in this amendment under 5 frequent and routine amendments are Rockland, ME, Knox County Regional, NDB U.S.C. 552(a), 1 CFR part 51, and § 97.20 necessary to keep them operationally RWY 3, Orig of the Federal Aviation Regulations current. It, therefore—(1) is not a Rockland, ME, Knox County Regional, NDB (FAR). The applicable FAA Forms are ‘‘significant regulatory action’’ under RWY 31, Orig identified as FAA Forms 8260–3, 8260– Executive Order 12866; (2) is not a Minneapolis, MN, Minneapolis-St. Paul Intl/ 4, and 8260–5. Materials incorporated ‘‘significant rule’’ under DOT Wold Chamberlain, ILS RWY 22, Amdt 7 by reference are available for Regulatory Policies and Procedures (44 Minneapolis, MN, Minneapolis-St. Paul Intl/ Wold Chamberlain, ILS RWY 30R, Amdt 9 examination or purchase as stated FR 11034; February 26, 1979); and (3) Minneapolis, MN, Minneapolis-St. Paul Intl/ above. does not warrant preparation of a Wold Chamberlain, (Simultaneous Close The large number of SIAPs, their regulatory evaluation as the anticipated Parallel) ILS PRM RWY 30R, Amdt 4 complex nature, and the need for a impact is so minimal. For the same Owatonna, MN, Owatonna Muni, ILS RWY special format make their verbatim reason, the FAA certifies that this 30, Orig
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Sand Island, Midway Atoll, MQ, Henderson Stockton, MO, Stockton Muni, GPS RWY 19, DEPARTMENT OF TRANSPORTATION Field, NDB RWY 6, Orig Orig Sand Island, Midway Atoll, MQ, Henderson Santa Fe, NM, Santa Fe Muni, GPS RWY 2, Coast Guard Field, NDB RWY 24, Orig Orig * * * Effective June 17, 1999 Santa Fe, NM, Santa Fe Muni, GPS RWY 33, 33 CFR Part 165 Orig Leesburg, FL, Leesburg Regional, GPS RWY [CGD 01±99±034] 13, Orig Elizabethtown, NC, Elizabethtown, GPS RWY Bainbridge, GA, Decatur County Industrial 15, Orig RIN 2115±AA97 Air Park, GPS RWY 9, Orig Elizabethtown, NC, Elizabethtown, VOR/ Carrollton, GA, West Georgia Regional O V DME RWY 15, Amdt 1 Safety Zone: Ellis Island Medals of Gray Field, NDB, OR GPS RWY 34, Amdt Elizabethtown, NC, Elizabethtown, GPS RWY Honor Fireworks, New York Harbor, 2 33, Orig Marietta, GA, Cobb County-McCollum Field, Upper Bay Elizabethtown, NC, Elizabethtown, NDB GPS RWY 9, Orig AGENCY: Coast Guard, DOT. Crookston, MN, Crookston Muni Kirkwood RWY 33, Amdt 1 Fld, VOR RWY 31, Amdt 5 Wadesboro, NC, Anson County, GPS RWY ACTION: Temporary final rule. Crookston, MN, Crookston Muni Kirkwood 17, Orig Fld, NDB OR GPS RWY 13, Amdt 7 Wadesboro, NC, Anson County, GPS RWY SUMMARY: The Coast Guard is Crookston, MN, Crookston Muni Kirkwood 35, Orig establishing a temporary safety zone for Fld, GPS RWY 31, Amdt 1 Bismarck, ND, Bismarck Muni, RADAR–1, the Ellis Island Medals of Honor * * * Effective July 15, 1999 Amdt 3 Fireworks program located north of Ada, OK, Ada Muni, GPS RWY 17, Orig Federal Anchorage 20B, New York Gambell, AK, Gambell, NDB RWY 16, Amdt Altus, OK, Altus Muni, GPS RWY 17, Amdt 1 Harbor, Upper Bay. This action is Gambell, AK, Gambell, NDB/DME RWY 34, 1 necessary to provide for the safety of life Amdt 2 Altus, OK, Altus Muni, VOR/DME RNAV on navigable waters during the event. Gambell, AK, Gambell, GPS RWY 16, Orig RWY 17, Amdt 2 This action is intended to restrict vessel Gambell, AK, Gambell, GPS RWY 34, Orig Chickasha, OK, Chickasha Muni, GPS RWY traffic in a portion of Federal Haleyville, AL, Posey Field, GPS RWY 36, 35, Orig Anchorages 20A and 20B. Orig Jacksboro, TN, Campbell County, GPS RWY DATES: This rule is effective from 8:30 Fort Myers, FL, Page Field, GPS RWY 5, Orig 23, Orig Fort Myers, FL, Page Field, GPS RWY 13, p.m. until 10 p.m., on Saturday, May 8, Lawrenceburg, TN, Lawrenceburg-Lawrence- 1999. There is no rain date for this Orig County, GPS RWY 17, Orig Fort Myers, FL, Page Field, GPS RWY 23, event. Rogersville, TN, Hawkins County, GPS RWY Orig ADDRESSES: Documents as indicated in Fort Myers, FL, Page Field, GPS RWY 31, 7, Orig Savannah, TN, Savannah-Hardin County, this preamble are available for Orig inspection or copying at Coast Guard Miami, FL, Opa Locka, GPS RWY 9L, Orig GPS RWY 1, Orig Miami, FL, Opa Locka, GPS RWY 27R, Orig Savannah, TN, Savannah-Hardin County, Activities New York, 212 Coast Guard Atlanta, GA, Fulton County Airport-Brown GPS RWY 19, Orig Drive, room 205, Staten Island, New Field, GPS RWY 26, Orig Austin, TX, Robert Mueller Muni, ILS RWY York 10305, between 8 a.m. and 3 p.m., Toccoa, GA, Toccoa RG Letourneau Field, 13R, Amdt 10A, CANCELLED Monday through Friday, except Federal GPS RWY 2, Orig Austin, TX, Robert Mueller Muni, ILS RWY holidays. The telephone number is (718) Toccoa, GA, Toccoa RG Letourneau Field, 31L, Amdt 33A, CANCELLED 354–4193. VOR OR GPS RWY 20, Amdt 12 Austin, TX, Robert Mueller Muni, GPS RWY FOR FURTHER INFORMATION CONTACT: Washington, IA, Washington Muni, GPS RWY 18, Orig 13R, Orig-A, CANCELLED Lieutenant J. Lopez, Waterways Washington, IA, Washington Muni, GPS Austin, TX, Robert Mueller Muni, GPS RWY Oversight Branch, Coast Guard RWY 36, Orig 31L, Orig-A, CANCELLED Activities New York (718) 354–4193. West Union, IA, George L. Scott Muni, GPS Crockett, TX, Houston County, GPS RWY 2, SUPPLEMENTARY INFORMATION: RWY 17, Orig Orig West Union, IA, George L. Scott Muni, GPS Crockett, TX, Houston County, GPS RWY 20, Regulatory History RWY 35, Orig Orig Lexington, KY, Blue Grass, GPS RWY 4, Orig Pursuant to 5 U.S.C. 553, a notice of Houston, TX, William P. Hobby, GPS RWY proposed rulemaking (NPRM) was not Lexington, KY, Blue Grass, GPS RWY 22, 4, Orig Orig published for this regulation. Good Houston, TX, William P. Hobby, GPS RWY Somerset, KY, Somerset-Pulaski County-J.T. cause exists for not publishing an NPRM Wilson Field, GPS RWY 22, Amdt 1 12R, Orig and for making this regulation effective Columbus-West Point-Starkville, MS, Golden Houston, TX, William P. Hobby, GPS RWY less than 30 days after Federal Register Triangle Regional, GPS RWY 18, Orig 17, Orig publication. Due to the date the Columbus-West Point-Starkville, MS, Golden Houston, TX, William P. Hobby, GPS RWY Application for Approval of Marine Triangle Regional, GPS RWY 36, Orig 22, Orig Event was receive, there was Oxford, MS, University-Oxford, GPS RWY 9, Houston, TX, William P. Hobby, GPS RWY Orig insufficient time to draft and publish an 30L, Orig NPRM and publish the final rule 30 Oxford, MS, University-Oxford, GPS RWY Houston, TX, William P. Hobby, GPS RWY 27, Orig days before its effective date. Any delay 35, Orig Yazoo City, MS, Yazoo County, GPS RWY 17, encountered in this regulation’s Orig [FR Doc. 99–11390 Filed 5–5–99; 8:45 am] effective date would be contrary to Yazoo City, MS, Yazoo County, GPS RWY 35, BILLING CODE 4910±13±M public interest since immediate action is Orig needed to close a portion of the Columbia, MO, Columbia Regional, ILS RWY waterway and protect the maritime 2, Amdt 13 Stockton, MO, Stockton Muni, VOR/DME OR public from the hazards associated with GPS–A, Amdt 2 this fireworks display. This is also an Stockton, MO, Stockton Muni, GPS RWY 1, annual event published in 33 CFR Orig 100.114. However, this year’s display is
VerDate 26-APR-99 09:01 May 05, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\A06MY0.017 pfrm01 PsN: 06MYR1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations 24287 being moved from east of Liberty Island Small Entities for inspection or copying where to east of Ellis Island. Under the Regulatory Flexibility Act indicated under ADDRESSES. Background and Purpose (5 U.S.C. 601 et seq.), the Coast Guard Other Executive Orders on the On March 3, 1999, Fireworks by considered whether this rule will have Regulatory Process Grucci submitted an application to hold a significant economic impact on a In addition to the statutes and a fireworks program on the water of substantial number of small entities. Executive Orders already addressed in Upper New York Bay between Federal ‘‘Small entities’’ include small this preamble, the Coast Guard Anchorages 20A and 20B. The fireworks businesses, not-for-profit organizations considered the following executive program is being sponsored by The that are independently owned and orders in developing this Final rule and Forum. This regulation establishes a operated and are not dominant in their reached the following conclusions: safety zone in all waters of Upper New fields, and governmental jurisdictions E.O. 12630, Governmental Actions York Bay within a 360 yard radius of the with populations of less than 50,000. and Interference with Constitutionally fireworks barge located in approximate For reasons discussed in the Protected Property Rights. This Rule position 40°41′15′′ N. 074°02′09′′ W. Regulatory Evaluation above, the Coast will not effect a taking of private (NAD 1993), approximately 365 yards Guard certifies under section 605(b) of property or otherwise have taking east of Ellis Island. The safety zone is in the Regulatory Flexibility Act (5 U.S.C. implications under this Order. effect from 8:30 p.m. until 10 p.m. on 601 et seq.) that this final rule will not E.O. 12875, Enhancing the Saturday, May 8, 1999. There is no rain have a significant economic impact on Intergovernmental Partnership. This date for this event. The safety zone a substantial number of small entities. Rule will not impose, on any State, prevents vessels from transiting a Collection of Information local, or tribal government, a mandate portion of Federal Anchorages 20A and that is not required by statute and that 20B and is needed to protect boaters This final rule does not provide for a is not funded by the Federal from the hazards associated with collection of information under the government. fireworks launched form a barge in the Paperwork Reduction Act of 1995 (44 E.O. 12988, Civil Justice Reform. This area. Recreational and commercial U.S.C. 3501 et seq.). Rule meets applicable standards in vessel traffic will be able to anchor in Federalism sections 3(a) and 3(b)(2) of this Order to the unaffected northern and southern minimize litigation, eliminate portions of Federal Anchorages 20A and The Coast Guard has analyzed this ambiguity, and reduce burden. 20B. Federal Anchorages 20C, 20D and final rule under the principles and E.O. 13045, Protection of Children 20E, to the south, are also available for criteria contained in Executive Order from Environmental Health Risks and vessel use. Marine traffic will still be 12612 and has determined that this final Safety Risks. This Rule is not an able to transit through Anchorage rule does not have sufficient economically significant rule and does Channel, Upper Bay, during the event as implications for federalism to warrant not concern an environmental risk to the safety zone only extends 150 yards the preparation of a Federalism safety disproportionately affecting into the 900-yard wide channel. The Assessment. children. Captain of the Port does not anticipate Unfunded Mandates List of Subjects in 33 CFR Part 165 any negative impact on vessel traffic due to this event. Public notifications Title II of the Unfunded Mandates Harbors, Marine safety, Navigation will be made prior to the event via local Reform Act of 1995 (UMRA) [Pub. L. (water), Reporting and recordkeeping notice to mariners, and marine 104–4, 109 Stat. 48] requires Federal requirements, Security measures, information broadcasts. agencies to assess the effects of certain Waterways. regulatory actions on State, local, and Regulation Regulatory Evaluation tribal governments, and the private This final rule is not a significant sector. UMRA requires a written For the reasons discussed in the regulatory action under section 3(f) of statement of economic and regulatory preamble, the Coast Guard amends 33 Executive Order 12866 and does not alternatives for rules that contain CFR Part 165 as follows: require an assessment of potential costs Federal mandates. A Federal mandate is and benefits under section 6(a)(3) of that a new or additional enforceable duty PART 165Ð[AMENDED] Order. It has not been reviewed by the imposed on any State, local, or tribal 1. The authority citation for Part 165 Office of Management and Budget under government, or the private sector. If any continues to read as follows: that Order. It is not significant under the Federal mandate causes those entities to Authority: 33 U.S.C. 1231; 50 U.S.C. 191; regulatory policies and procedures of spend, in the aggregate, $100 million or 33 CFR 1.05–1(g), 6.04–6, 160.5; 49 CFR 1.46. the Department of Transportation (DOT) more in any one year, the UMRA Section 165.100 is also issued under (44 FR 11040; February 26, 1979). The analysis is required. This Final Rule authority of Sec. 311, Pub. L. 105–383. Coast Guard expects the economic does not impose Federal mandates on 2. Add temporary § 165.T01–034 to impact of this final rule to be so any State, local, or tribal governments, read as follows: minimal that a full Regulatory or the private sector. Evaluation under paragraph 10e of the § 165.T01±034 Safety Zone; Ellis Island regulatory policies and procedures of Environment Medals of Honor Fireworks, New York DOT is unnecessary. This finding is The Coast Guard has considered the Harbor, Upper Bay. based on the limited marine traffic in environmental impact of this final rule (a) Location. The following area is a the area, the minimal time that vessels and concluded that under Figure 2–1, safety zone: All waters of New York will be restricted from the zone, that paragraph 34(g), of Commandant Harbor, Upper Bay within a 360 yard vessels may safely anchor to the north Instruction M16475.1C, this final rule is radius of the fireworks barge in and south of the zone, that vessels may categorically excluded from further approximate position 40°41′15′′ N., still transit through Anchorage Channel environmental documentation. A 074°02′09′′ W. (NAD 1983), during the event, and extensive advance written Categorical Exclusion approximately 365 yards East of Ellis notifications which will be made. Determination is available in the docket Island.
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(b) Effective period. This section is FOR FURTHER INFORMATION CONTACT: Under section 307(b)(1) of the CAA, effective from 8:30 p.m. until 10 p.m. on Andrea Wullenweber, US EPA, Region petitions for judicial review of this Saturday, May 8, 1999. There is no rain X (OAQ–107), 1200 Sixth Avenue, action must be filed in the United States date for this event. Seattle, WA, 98101, (206) 553–8760. Court of Appeals for the appropriate (c) Regulations. SUPPLEMENTARY INFORMATION: circuit by July 6, 1999. Filing a petition (1) The general regulations contained for reconsideration by the Administrator in 33 CFR 165.23 apply. I Administrative Requirements of this final rule does not affect the (2) All persons and vessels shall Under Executive Order (E.O.) 12866, finality of this rule for the purposes of comply with the instructions of the Regulatory Planning and Review (58 FR judicial review nor does it extend the Coast Guard Captain of the Port or the 51735, October 4, 1993), this action is time within which a petition for judicial designated on scene patrol personnel. not a ‘‘significant regulatory action’’ and review may be filed, and shall not U.S. Coast Guard patrol personnel is therefore, not subject to review by the postpone the effectiveness of such rule include commissioned, warrant, and Office of Management and Budget. In or action. This action may not be petty officers of the Coast Guard. Upon addition, this action does not impose challenged later in proceedings to being hailed by a U.S. Coast Guard any enforceable duty, contain any enforce its requirements [see section vessel via siren, radio, flashing light, or unfunded mandate, or impose any 307(b)(2)]. other means, the operator of a vessel significant or unique impact on small II Clarification shall proceed as directed. governments as described in the Dated: April 23, 1999. Unfunded Mandates Reform Act of 1995 What Action Is EPA Taking Today? R.E. Bennis, (Pub. L. 104–4). This rule also does not This action clarifies which 40 CFR Captain, U.S. Coast Guard, Captain of the require prior consultation with State, Parts 61 and 63 General Provisions Port, New York. local, and tribal government officials as authorities are delegated to the Alaska [FR Doc. 99–11343 Filed 5–5–99; 8:45 am] specified by Executive Order 12875 (58 Department of Environmental FR 58093, October 28, 1993) or BILLING CODE 4910±15±M Conservation (ADEC), and serves as a Executive Order 13084 (63 FR 27655, clarification to the Clean Air Act Final May 10, 1998), or involve special Approval in Part and Final Disapproval consideration of environmental justice in Part, Section 112(l), Program ENVIRONMENTAL PROTECTION related issues as required by Executive Submittal; State of Alaska, published on AGENCY Order 12898 (59 FR 7629, February 16, December 5, 1996 (see 61 FR 64463). 1994). Because this action is not subject 40 CFR Parts 61 and 63 to notice-and-comment requirements Why Is EPA Taking This Action? [FRL±6316±7] under the Administrative Procedure Act On December 5, 1996 (see 61 FR or any other statute, it is not subject to 64463), EPA granted ADEC final Clean Air Act Final Approval in Part the regulatory flexibility provisions of approval in part and final disapproval and Final Disapproval in Part, Section the Regulatory Flexibility Act (5 U.S.C. in part of Clean Air Act, Section 112(l), 112(l), Program Submittal; State of 601 et seq.). This rule also is not subject authority to implement and enforce Alaska; Amendment and Clarification to Executive Order 13045 (62 FR 19885, specific 40 CFR Parts 61 and 63 federal April 23, 1997), entitled ‘‘Protection of NESHAP regulations which have been AGENCY: Environmental Protection Children from Environmental Health adopted into state law. Since that Agency (EPA). Risks and Safety Risks,’’ because EPA December 5, 1996, Federal Register ACTION: Final approval in part and interprets E.O. 13045 as applying only action, EPA has issued guidance disapproval in part; amendment and to those regulatory actions that are identifying which 40 CFR Part 63, clarification. based on health or safety risks, such that Subpart A, General Provisions, the analysis required under section 5– authorities may and may not be SUMMARY: This action identifies which 501 of the Order has the potential to delegated to state and local agencies. 40 CFR Parts 61 and 63 General influence the regulation. This rule is not This guidance was issued in a Provisions authorities are delegated to subject to E.O. 13045 because it does not memorandum from John Seitz, Director, the Alaska Department of establish an environmental standard Office of Air Quality Planning and Environmental Conservation (ADEC), intended to mitigate health or safety Standards, dated July, 10, 1998, entitled, and serves as a clarification to the Clean risks. ‘‘Delegation of 40 CFR Part 63 General Air Act Final Approval in Part and Final The Congressional Review Act, 5 Provisions Authorities to State and Disapproval in Part, Section 112(l), U.S.C. 801 et seq., as added by the Small Local Air Pollution Control Agencies.’’ Program Submittal; State of Alaska, Business Regulatory Enforcement In light of this guidance, Chuck Clarke, published on December 5, 1996 (see 61 Fairness Act of 1996, generally provides Regional Administrator, EPA, Region X, FR 64463). This action amends 40 CFR that before a rule may take effect, the issued a letter of clarification to Michele 61.04 and 63.99 by revising and adding agency promulgating the rule must Brown, Commissioner, ADEC, dated tables outlining ADEC’s current submit a rule report, which includes a March 11, 1999, identifying specifically delegation status. copy of the rule, to each House of the which 40 CFR Parts 61 and 63 General DATES: The amendments are effective on Congress and to the Comptroller General Provisions authorities are and are not May 6, 1999. of the United States. EPA will submit a delegated to ADEC. This clarification ADDRESSES: Copies of the requests for report containing this rule and other notice summarizes that letter. delegation and other supporting required information to the U.S. Senate, documentation are available for public the U.S. House of Representatives, and Which Part 63 General Provisions inspection at the following location: the Comptroller General of the United Authorities Are Delegated to ADEC? U.S. Environmental Protection Agency, States prior to publication of the rule in EPA, Region 10, has determined that Region X, Office of Air Quality (OAQ– the Federal Register. This rule is not a ADEC has sufficient expertise to 107), 1200 Sixth Avenue, Seattle, WA, ‘‘major rule’’ as defined by 5 U.S.C. implement all of the 40 CFR Part 63 98101. 804(2). General Provisions authorities which
VerDate 26-APR-99 15:17 May 05, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\06MYR1.XXX pfrm07 PsN: 06MYR1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations 24289 may be delegated to state and local adjustments to the timing that reports stringency of the underlying standard. agencies, as listed in the July 10, 1998, are due, but does not have the authority The intent is that ADEC will make memorandum from John Seitz to alter the contents of the reports. For decisions on a source-by-source basis, (referenced above). The table below lists Title V sources, semiannual and annual not on a source category-wide basis. these General Provisions authorities reports are required by Part 70, and this Additionally, ADEC may assume that which are delegated to ADEC. In does not change that requirement. for any authorities not listed in this delegating 40 CFR 63.9 and 63.10, In delegating these authorities, EPA preamble, in the Part 63 Delegation Approval of Adjustments to Time grants ADEC the authority to make Status table, or in the subparts as not Periods for Submitting Reports, ADEC decisions which are not likely to be delegable, ADEC has been delegated that has the authority to approve nationally significant nor alter the particular authority.
40 CFR PART 63, SUBPART A, GENERAL PROVISIONS AUTHORITIES WHICH ADEC IS DELEGATED
Section Authorities
63.1 ...... Applicability Determinations. 63.6(e) ...... Operation and Maintenance RequirementsÐResponsibility for Deter- mining Compliance. 63.6(f) ...... Compliance with Non-Opacity StandardsÐResponsibility for Deter- mining Compliance. 63.6(h) [except 63.6(h)(9)] ...... Compliance with Opacity and Visible Emissions StandardsÐResponsi- bility for Determining Compliance. 63.7(c)(2)(i) and (d) ...... Approval of Site-Specific Test Plans. 63.7(e)(2)(i) ...... Approval of Minor Alternatives to Test Methods. 63.7(e)(2)(ii) and (f) ...... Approval of Intermediate Alternatives to Test Methods. 63.7(e)(2)(iii) ...... Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors. 63.7(e)(2)(iv) and (h)(2), (3) ...... Waiver of Performance Testing. 63.8(c)(1) and (e)(1) ...... Approval of Site-Specific Performance Evaluation (monitoring) Test Plans. 63.8(f) ...... Approval of Minor Alternatives to Monitoring. 63.8(f) ...... Approval of Intermediate Alternatives to Monitoring. 63.9 and 63.10 [except 63.10(f)] ...... Approval of Adjustments to Time Periods for Submitting Reports. Note: For definitions of minor and intermediate alternatives to test methods and monitoring, see memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July, 10, 1998, entitled, ``Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies.''
Which Part 63 General Provisions Which Part 63 General Provisions and Availability of Information and Authorities Are Automatically Granted Authorities Are Not Delegated to ADEC? Confidentiality (63.15). to ADEC as Part of Its Part 70 Operating As a general rule, in delegating the Which Part 61 General Provisions Permits Program? authorities of 40 CFR Part 63, Subpart Authorities Are Not Delegated to ADEC? The 40 CFR Part 63 General A, to state or local agencies, EPA retains As a general rule, in delegating the Provisions authorities that are certain decision-making authorities authorities of 40 CFR Parts 61, Subpart automatically granted to ADEC as part which could result in a change to the A, to state or local agencies, EPA retains of its Part 70 operating permits program stringency of an underlying standard, certain decision-making authorities which are likely to be nationally approval (regardless of whether the which could result in a change to the significant, or which may require a operating permits program approval is stringency of an underlying standard, rulemaking and subsequent Federal interim or final) are: 40 CFR 63.5(e) and which are likely to be nationally Register notice. ADEC is not delegated significant, or which may require a (f), Approval and Disapproval of those 40 CFR Parts 63 authorities listed Construction and Reconstruction, and rulemaking and subsequent Federal in the footnotes of the Part 63 Register notice. In the footnotes of the 63.6(i)(1), Extension of Compliance with Delegation Status table at the end of this Emission Standards. Sections 112(i)(1) Part 61 Delegation Status table at the rule. Additionally, ADEC is not end of this rule, EPA has identified and (3) state that the ‘‘Administrator (or delegated any authorities identified in which authorities are not delegated to a State with a permit program approved the subparts (i.e., under ‘‘Delegation of ADEC. This list has been compiled under Title V)’’ may conduct Authority’’) that cannot be delegated. jointly by EPA’s Office of preconstruction review and may grant Section 63.6(g), Use of an Alternative Environmental Compliance and compliance extensions. EPA interprets Non-opacity Emission Standard, also Assistance (OECA) and EPA, Region 10, that this authority does not require cannot be delegated to a state or local based on the July 10, 1998, delegation through subpart E and, agency because approval of such an memorandum from John Seitz (as instead, is automatically granted to alternative requires a Federal referenced above), EPA policy memos States as part of their Part 70 operating rulemaking. Sections 63.12 through from pre-1990, and a guidance permits program approval. Additionally, 63.15 contain the following information, document under development by OECA for 40 CFR 63.6(i)(1), ADEC does not which is not necessary to delegate to entitled, ‘‘How to Review and Issue need to have been delegated a particular state or local agencies: State Authority Clean Air Act Applicability standard or have issued a Part 70 and Delegations (63.12), Addresses of Determinations and Alternative operating permit to a particular source State Air Pollution Control Agencies Monitoring.’’ to grant that source a compliance and EPA Regional Offices (63.13), Sections 61.04(b) and 61.16 contain extension. Incorporations By Reference (63.14), the following information, respectively,
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These intermediate EPA is amending 40 CFR 61.04(b)(C) subparts pertaining to approval of test methods or monitoring changes to correct ADEC’s address, and is alternative standards (i.e., alternative should be sent via mail or facsimile to: amending 40 CFR 61.04(c)(10) to add means of emission limitations), or Chief, Source Categorization Group A, ADEC’s delegation status for Part 61 approval of major alternatives to test U.S. EPA (MD–19), Research Triangle standards to the existing table for methods or monitoring; as well as any Park, NC 27711, Facsimile telephone Region X. EPA is also amending 40 CFR authorities identified in the subparts number: (919) 541–1039. 63.99(a)(2) to add a table listing ADEC’s (i.e., under ‘‘Delegation of Authority’’) delegation status for Part 63 standards. that cannot be delegated. What Is the Effective Date of This These Delegation Status tables are listed Clarification? Which Part 61 General Provisions at the end of this rule. Authorities Are Delegated to ADEC? This clarification of ADEC’s Why Is EPA Taking This Action? delegation of authority was effective on ADEC may assume that for any EPA is amending these tables to add the date of the letter from Chuck Clarke, authorities not listed in this preamble, ADEC’s delegation status to help the EPA, to Michele Brown, ADEC, which in the Part 61 Delegation Status table, or reader more easily distinguish which was March 11, 1999. Please note that in the subparts as not delegable, ADEC subparts of Parts 61 and 63 are has been delegated that particular this clarification does not change any delegated. This information helps the authority. Additionally, in delegating source-specific determinations that have reader determine which agency (EPA or these authorities, EPA grants ADEC the already been made under the 40 CFR ADEC) is the primary implementing and authority to make decisions which are Parts 61 and 63 General Provisions; enforcing agency for a particular not likely to be nationally significant instead, this should be used as guidance subpart. These tables list the subparts nor alter the stringency of the for all future decisions regarding the that were delegated to ADEC in a underlying standard. The intent is that General Provisions authorities. Federal Register action published on ADEC will make decisions on a source- December 5, 1996 (see 61 FR 64463), by-source basis, not on a category-wide What Is the Impact of This Clarification on the Regulated Community? and also list the Parts 61 and 63 General basis. Provisions authorities which are not What Are ADEC’s Reporting This clarification notice informs the delegated to ADEC, based on this Requirements to EPA? regulated community where to send clarification notice. As a condition of receiving delegation requests for determinations that will be List of Subjects of the General Provisions authorities, made pursuant to the General 40 CFR Part 61 ADEC must submit to EPA the following Provisions authorities in Parts 61 and information: 63. For those General Provisions Environmental protection, Air • ADEC must input all source authorities that are delegated, requests pollution control, Arsenic, Asbestos, information into the Aerometric should be submitted to ADEC; and for Benzene, Beryllium, Hazardous Information Retrieval System (AIRS) for those General Provisions authorities that substances, Mercury, Reporting and both point and area sources by are not delegated, requests should be recordkeeping requirements, Vinyl September 30 of each year; submitted to EPA. Chloride. • ADEC must report to EPA, Region What Is The Impact of This Clarification X, all MACTRAX information upon 40 CFR Part 63 on Indian Country in Alaska? request, which is typically Environmental protection, Air semiannually. (MACTRAX provides This clarification notice (as well as pollution control, Hazardous summary data for each implemented the original December 5, 1996, substances, Reporting and NESHAP that EPA uses to evaluate the delegation) does not extend to ‘‘Indian recordkeeping requirements. Air Toxics Program); • country’’ located in Alaska, as defined Dated: March 18, 1999. ADEC must also provide any in 18 USC Section 1151. Because the Jane S. Moore, additional compliance related extent of Indian country is currently Acting Regional Administrator, Region X. information to EPA, Region X, as agreed unknown and is subject to litigation, the upon in the Compliance Assurance exact boundaries of Indian country have Title 40, chapter I, parts 61 and 63 of Agreement; the Code of Federal Regulations is • ADEC must submit to EPA, Region not been established in Alaska. At amended as follows: X, copies of determinations issued present, the lands acknowledged to be Indian country are the Annette Island pursuant to the delegated General PART 61Ð[AMENDED] Provisions authorities (which are listed Reserve, the trust lands identified as in Table 1); Indian country by the United States in 1. The authority citation for part 61 • ADEC must also forward to EPA, Klawock, Kake, and Angoon, and the continues to read as follows: Region X, copies of any notifications Native allotments still in restricted status. With this clarification, EPA does Authority: 42 U.S.C. 7401, 7412, 7413, received pursuant to 63.6(h)(7)(ii) 7414, 7416, 7601 and 7602. pertaining to the use of a continuous not intend to affect the rights of opacity monitoring system; and federally-recognized Indian tribes in Subpart AÐGeneral Provisions ADEC must submit to EPA’s Emission Alaska, nor does it intend to limit the Measurement Center of the Emissions existing rights of the State of Alaska. 2. Section 61.04 is amended in Monitoring and Analysis Division Because the approved ADEC program paragraph (b) by revising paragraph copies of any approved intermediate does not extend to sources and activities (b)(C); and by revising the existing table changes to test methods or monitoring. in Indian country, EPA will continue to in paragraph (c)(10) and the note to (For definitions of major, intermediate implement NESHAPs in Indian country. paragraph (c)(10) to read as follows:
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§ 61.04 Address. Willoughby Avenue, Suite 105, Juneau, AK (c) * * * 99801–1795. * * * * * (10) * * * (b) * * * Note: For a table listing ADEC’s delegation status, see paragraph (c)(10) of this section. (C) State of Alaska, Department of Environmental Conservation (ADEC), 410 * * * * *
DELEGATION STATUS FOR PART 61 STANDARDSÐREGION X
E L c N O P S S Y A I O R o B W A S C W R Subpart D D D A l C A P A A A C E E E P o A P C P P P A C 1 Q 2 Q 3 A 6 C C C A 4 g A 7 A 8 A 12 A 9 A 10 A 11 y 5
A General Provisions 13 ...... X ...... X ...... X ...... X B Radon from Underground Uranium Mines C Beryllium ...... X ...... X ...... X D Beryllium Rocket Motor Firing ...... X ...... X ...... X E Mercury ...... X ...... X ...... X ...... X F Vinyl Chloride ...... X ...... X ...... X H Emissions of Radionuclides other than Radon from Dept of Energy facilities I Radionuclides from Federal Facilities other than Nuclear Regulatory Commission Licensees and not covered by Subpart H J Equipment Leaks of Benzene ...... X ...... X ...... X ...... X K Radionuclides from Elemental Phosphorus Plants L Benzene from Coke Recovery ...... X ...... X ...... M Asbestos ...... X 1 ...... X ...... X ...... X N Arsenic from Glass Plants ...... X ...... X ...... X O Arsenic from Primary Copper Smelters ...... X ...... X ...... X P Arsenic from Arsenic Production Facilities ...... X ...... X ...... X Q Radon from Dept of Energy facilities R Radon from Phosphogypsum Stacks T Radon from Disposal of Uranium Mill Tailings V Equipment Leaks ...... X ...... X ...... X ...... X W Radon from Operating Mill Tailings Y Benzene from Benzene Storage Vessels ...... X ...... X ...... X ...... X BB Benzene from Benzene Transfer Operations ...... X ...... X ...... X FF Benzene Waste Operations ...... X ...... X ...... X ...... X .
1 Alaska Department of Environmental Conservation (1/18/97) NOTE: Alaska received delegation for sections 61.145 and 61.154 of Subpart M (Asbestos), along with other sections and appendices which are referenced in 61.145, as 61.145 applies to sources required to obtain an oper- ating permit under Alaska's regulations. EPA retains the authority to implement and enforce Subpart M for area source asbestos demolition and renovation activities. 2 Idaho Division of Environmental Quality. 3 Oregon Department of Environmental Quality. 4 Lane Regional Air Pollution Authority. 5 Washington Department of Ecology. 6 Benton Clean Air Authority. 7 Northwest Air Pollution Authority (5/14/98). 8 Olympic Air Pollution Control Authority. 9 Puget Sound Air Pollution Control Agency (7/1/97). 10 Spokane County Air Pollution Control Authority. 11 Southwest Air Pollution Control Authority (8/1/96). 12 Yakima Regional Clean Air Authority. 13 Authorities which are not delegated include: 40 CFR 61.04(b); 61.12(d)(1); 61.13(h)(1)(ii) for approval of major alternatives to test methods; 61.14(g)(1)(ii) for approval of major alternatives to monitoring; 61.16; 61.53(c)(4); any sections in the subparts pertaining to approval of alter- native standards (i.e., alternative means of emission limitations), or approval of major alternatives to test methods or monitoring; and all authori- ties identified in the subparts (i.e., under ``Delegation of Authority'') that cannot be delegated.
Note to paragraph (c)(10): Dates in Authority: 42 U.S.C. 7401, et seq. (2) Alaska. parenthesis indicate the effective date of the (i) The following table lists the federal rules that have been adopted by and Subpart EÐApproval of State delegated to the state or local air pollution Programs and Delegation of Federal specific part 63 standards that have control agency. Therefore, any amendments Authorities been delegated unchanged to the Alaska made to these delegated rules after this Department of Environmental effective date are not delegated to the agency. 2. Section 63.99 is amended by Conservation. The (X) symbol is used to adding paragraph (a)(2) to read as indicate each subpart that has been PART 63Ð[AMENDED] follows: delegated. § 63.99 Delegated Federal authorities. 1. The authority citation for part 63 continues to read as follows: (a) * * *
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DELEGATION STATUS FOR PART 63 STANDARDSÐALASKA
Alaska Depart- ment of Envi- Subpart ronmental Conservation (1/18/97)
A ...... General Provisions 1 ...... X D ...... Early Reductions ...... X F ...... HON-SOCMI. G ...... HON-Process Vents. H ...... HON-Equipment Leaks. I ...... HON-Negotiated Leaks. L ...... Coke Oven Batteries. M ...... Perc Dry Cleaning ...... X N ...... Chromium Electroplating ...... X 2 O ...... Ethylene Oxide Sterilizers. Q ...... Industrial Process Cooling Towers ...... X R ...... Gasoline Distribution ...... X S ...... Pulp and Paper. T ...... Halogenated Solvent Cleaning ...... X U ...... Polymers and Resins I. W ...... Polymers and Resins II-Epoxy. X ...... Secondary Lead Smelting. Y ...... Marine Tank Vessel Loading ...... X CC ...... Petroleum Refineries ...... X DD ...... Off-Site Waste and Recovery ...... X EE ...... Magnetic Tape Manufacturing. GG ...... Aerospace Manufacturing & Rework. II ...... Shipbuilding and Ship Repair ...... X JJ ...... Wood Furniture Manufacturing Operations ...... X KK ...... Printing and Publishing Industry ...... X LL ...... Primary Aluminum. OO ...... TanksÐLevel 1. PP ...... Containers. QQ ...... Surface Impoundments. RR ...... Individual Drain Systems. VV ...... Oil-Water Separators and Organic-Water Separators. EEE ...... Hazardous Waste Combustors. JJJ ...... Polymers and Resins IV. 1 Authorities which are not delegated include: 40 CFR 63.6(g); 63.6(h)(9); 63.7(e)(2)(ii) and (f) for approval of major alternatives to test meth- ods; 63.8(f) for approval of major alternatives to monitoring; 63.10(f); and all authorities identified in the subparts (i.e., under ``Delegation of Au- thority'') that cannot be delegated. For definitions of minor, intermediate, and major alternatives to test methods and monitoring, see memo- randum from John Seitz, Office of Air Quality Planning and Standards, dated July, 10, 1998, entitled, ``Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies.'' 2 Alaska received delegation for Subpart N (Chromium Electroplating) as it applies to sources required to obtain an operating permit under Alaska's regulations. EPA retains the authority for implementing and enforcing Subpart N for area source chromium electroplating and anodizing operations which have been exempted from Part 70 permitting in 40 CFR 63.340(e)(1).
(ii) [Reserved] ENVIRONMENTAL PROTECTION EPA’s granting of an emergency Note to paragraph (a)(2): The date in AGENCY exemption under section 18 of the parenthesis indicates the effective date of the Federal Insecticide, Fungicide, and 40 CFR Part 180 federal rules that have been adopted by and Rodenticide Act (FIFRA) authorizing use of the pesticide on strawberries. delegated to the Alaska Department of [OPP±300846; FRL±6074±9] Environmental Conservation. Therefore, any Section 408(l)(6) of the Federal Food, amendments made to these delegated rules RIN 2070±AB78 Drug, and Cosmetic Act requires EPA to after this effective date are not delegated to establish a time-limited tolerance or the agency. Myclobutanil; Extension of Tolerance exemption from the requirement for a for Emergency Exemptions tolerance for pesticide chemical * * * * * residues in food that will result from the [FR Doc. 99–11270 Filed 5–5–99; 8:45 am] AGENCY: Environmental Protection use of a pesticide under an emergency BILLING CODE 6560±50±P Agency (EPA). exemption granted by EPA under FIFRA ACTION: Final rule. section 18.
SUMMARY: This regulation extends a DATES: This regulation becomes time-limited tolerance for combined effective May 6, 1999. Objections and residues of the fungicide myclobutanil requests for hearings must be received and its metabolite in or on strawberries by EPA, on or before July 6, 1999. at 0.5 parts per million (ppm) for an ADDRESSES: Written objections and additional 1-year period. This tolerance hearing requests, identified by the will expire and is revoked on March 31, docket control number [OPP-300846], 2000. This action is in response to must be submitted to: Hearing Clerk
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(1900), Environmental Protection March 31, 1998. EPA extended the I. Objections and Hearing Requests Agency, Rm. M3708, 401 M St., SW., expiration date of this tolerance to The new FFDCA section 408(g) Washington, DC 20460. Fees March 31, 1999, in a Federal Register provides essentially the same process accompanying objections and hearing notice published March 4, 1998 (FRL for persons to ‘‘object’’ to a tolerance requests shall be labeled ‘‘Tolerance 5772–8). EPA established the tolerance regulation as was provided in the old Petition Fees’’ and forwarded to: EPA because section 408(l)(6) of the FFDCA section 408 and in section 409. Headquarters Accounting Operations requires EPA to establish a time-limited However, the period for filing objections Branch, OPP (Tolerance Fees), P.O. Box tolerance or exemption from the is 60 days, rather than 30 days. EPA 360277M, Pittsburgh, PA 15251. A copy requirement for a tolerance for pesticide currently has procedural regulations of any objections and hearing requests chemical residues in food that will which govern the submission of filed with the Hearing Clerk identified result from the use of a pesticide under objections and hearing requests. These by the docket control number, [OPP- an emergency exemption granted by regulations will require some 300846], must also be submitted to: EPA under FIFRA section 18. Such modification to reflect the new law. Public Information and Records tolerances can be established without However, until those modifications can Integrity Branch, Information Resources providing notice or period for public be made, EPA will continue to use those and Services Division (7502C), Office of comment. procedural regulations with appropriate Pesticide Programs, Environmental EPA received a request to extend the adjustments to reflect the new law. Protection Agency, 401 M St., SW., use of myclobutanil on strawberries for Any person may, by July 6, 1999, file Washington, DC 20460. In person, bring this year growing season due to written objections to any aspect of this a copy of objections and hearing continued incidence of powdery regulation and may also request a requests to Rm. 119, Crystal Mall #2, mildew in Florida and California and hearing on those objections. Objections 1921 Jefferson Davis Hwy., Arlington, the claimed ineffectiveness of registered and hearing requests must be filed with VA. alternatives at controlling the disease. the Hearing Clerk, at the address given A copy of objections and hearing After having reviewed the submission, under the ‘‘ADDRESSES’’ section (40 requests filed with the Hearing Clerk EPA concurs that an emergency CFR 178.20). A copy of the objections may also be submitted electronically by condition could exist. EPA has and/or hearing requests filed with the sending electronic mail (e-mail) to: opp- authorized under FIFRA section 18 the Hearing Clerk should be submitted to [email protected]. Copies of electronic use of myclobutanil on strawberries for the OPP docket for this rulemaking. The objections and hearing requests must be control of powdery mildew in objections submitted must specify the submitted as an ASCII file avoiding the strawberries. provisions of the regulation deemed use of special characters and any form EPA assessed the potential risks objectionable and the grounds for the of encryption. Copies of objections and presented by residues of myclobutanil objections (40 CFR 178.25). Each hearing requests will also be accepted in or on strawberries. In doing so, EPA objection must be accompanied by the on disks in WordPerfect 5.1/6.1 or considered the safety standard in fee prescribed by 40 CFR 180.33(i). EPA ASCII file format. All copies of FFDCA section 408(b)(2), and decided is authorized to waive any fee electronic objections and hearing that the necessary tolerance under requirement ‘‘when in the judgement of requests must be identified by the FFDCA section 408(l)(6) would be the Administrator such a waiver or docket control number [OPP–300846]. consistent with the safety standard and refund is equitable and not contrary to No Confidential Business Information with FIFRA section 18. The data and the purpose of this subsection.’’ For (CBI) should be submitted through e- other relevant material have been additional information regarding mail. Copies of electronic objections and evaluated and discussed in the final rule tolerance objection fee waivers, contact hearing requests on this rule may be of April 11, 1997 (62 FR 17730) (FRL– James Tompkins, Registration Division filed online at many Federal Depository 5597–9). Based on that data and (7505C), Office of Pesticide Programs, Libraries. information considered, the Agency Environmental Protection Agency, 401 FOR FURTHER INFORMATION CONTACT: By reaffirms that extension of the time- M St., SW., Washington, DC 20460. mail: Stephen Schaible, Registration limited tolerance will continue to meet Office location, telephone number, and Division (7505C), Office of Pesticide the requirements of section 408(l)(6). e-mail address: Rm. 239, Crystal Mall Programs, Environmental Protection Therefore, the time-limited tolerance is #2, 1921 Jefferson Davis Hwy., Agency, 401 M St., SW., Washington, extended for an additional 1–year Arlington, VA, (703) 305-5697, DC 20460. Office location, telephone period. EPA will publish a document in [email protected]. Requests for number, and e-mail address: Rm., 271, the Federal Register to remove the waiver of tolerance objection fees Crystal Mall #2, 1921 Jefferson Davis revoked tolerance from the Code of should be sent to James Hollins, Hwy., Arlington, VA, 703–308–9362; e- Federal Regulations (CFR). Although Information Resources and Services mail: [email protected]. this tolerance will expire and is revoked Division (7502C), Office of Pesticide SUPPLEMENTARY INFORMATION: EPA on March 31, 2000, under FFDCA Programs, Environmental Protection issued a final rule, published in the section 408(l)(5), residues of the Agency, 401 M St., SW., Washington, Federal Register of April, 11, 1997 (62 pesticide not in excess of the amounts DC 20460. FR 17730) (FRL–5597–9), which specified in the tolerance remaining in If a hearing is requested, the announced that on its own initiative or on strawberries after that date will objections must include a statement of under section 408 of the Federal Food, not be unlawful, provided the pesticide the factual issues on which a hearing is Drug, and Cosmetic Act (FFDCA), 21 is applied in a manner that was lawful requested, the requestor’s contentions U.S.C. 346a and (l)(6), as amended by under FIFRA and the application on such issues, and a summary of any the Food Quality Protection Act of 1996 occurred prior to the revocation of the evidence relied upon by the requestor (FQPA) (Pub. L. 104–170) it established tolerance. EPA will take action to revoke (40 CFR 178.27). A request for a hearing a time-limited tolerance for the this tolerance earlier if any experience will be granted if the Administrator combined residues of myclobutanil and with, scientific data on, or other determines that the material submitted its metabolite in or on strawberries at relevant information on this pesticide shows the following: There is genuine 0.5 ppm, with an expiration date of indicate that the residues are not safe. and substantial issue of fact; there is a
VerDate 26-APR-99 09:01 May 05, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\A06MY0.029 pfrm01 PsN: 06MYR1 24294 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations reasonable possibility that available III. Regulatory Assessment unfunded, EPA must provide to OMB a evidence identified by the requestor Requirements description of the extent of EPA’s prior would, if established, resolve one or A. Certain Acts and Executive Orders consultation with representatives of more of such issues in favor of the affected State, local, and tribal requestor, taking into account This final rule establishes a tolerance governments, the nature of their uncontested claims or facts to the under section 408 of the FFDCA. The concerns, copies of any written contrary; and resolution of the factual Office of Management and Budget communications from the governments, issues in the manner sought by the (OMB) has exempted these types of and a statement supporting the need to actions from review under Executive requestor would be adequate to justify issue the regulation. In addition, Order 12866, entitled Regulatory the action requested (40 CFR 178.32). Executive Order 12875 requires EPA to Planning and Review (58 FR 51735, Information submitted in connection develop an effective process permitting with an objection or hearing request October 4, 1993). This final rule does not contain any information collections elected officials and other may be claimed confidential by marking representatives of State, local, and tribal any part or all of that information as subject to OMB approval under the Paperwork Reduction Act (PRA), 44 governments ‘‘to provide meaningful CBI. Information so marked will not be U.S.C. 3501 et seq., or impose any and timely input in the development of disclosed except in accordance with enforceable duty or contain any regulatory proposals containing procedures set forth in 40 CFR part 2. unfunded mandate as described under significant unfunded mandates.’’ A copy of the information that does not Title II of the Unfunded Mandates Today’s rule does not create an contain CBI must be submitted for Reform Act of 1995 (UMRA) (Pub. L. unfunded Federal mandate on State, inclusion in the public record. 104–4). Nor does it require any prior local, or tribal governments. The rule Information not marked confidential consultation as specified by Executive does not impose any enforceable duties may be disclosed publicly by EPA Order 12875, entitled Enhancing the without prior notice. on these entities. Accordingly, the Intergovernmental Partnership (58 FR requirements of section 1(a) of II. Public Record and Electronic 58093, October 28, 1993), or special Executive Order 12875 do not apply to Submissions considerations as required by Executive this rule. Order 12898, entitled Federal Actions to EPA has established a record for this Address Environmental Justice in C. Executive Order 13084 regulation under docket control number Minority Populations and Low-Income [OPP–300846] (including any comments Populations (59 FR 7629, February 16, Under Executive Order 13084, and data submitted electronically). A 1994), or require OMB review in entitled Consultation and Coordination public version of this record, including accordance with Executive Order 13045, with Indian Tribal Governments (63 FR printed, paper versions of electronic entitled Protection of Children from 27655, May 19, 1998), EPA may not comments, which does not include any Environmental Health Risks and Safety issue a regulation that is not required by information claimed as CBI, is available Risks (62 FR 19885, April 23, 1997). statute, that significantly or uniquely for inspection from 8:30 a.m. to 4 p.m., In addition, since tolerances and affects the communities of Indian tribal Monday through Friday, excluding legal exemptions that are established under governments, and that imposes holidays. The public record is located in section 408(l)(6) of FFDCA, such as the substantial direct compliance costs on Room 119 of the Public Information and exemption in this final rule, do not those communities, unless the Federal Records Integrity Branch, Information require the issuance of a proposed rule, government provides the funds Resources and Services Division the requirements of the Regulatory necessary to pay the direct compliance (7502C), Office of Pesticide Programs, Flexibility Act (RFA) (5 U.S.C. 601 et costs incurred by the tribal Environmental Protection Agency, seq.) do not apply. Nevertheless, the governments. If the mandate is Crystal Mall #2, 1921 Jefferson Davis Agency previously assessed whether unfunded, EPA must provide OMB, in Hwy., Arlington, VA. establishing tolerances, exemptions a separately identified section of the from tolerances, raising tolerance levels preamble to the rule, a description of Objections and hearing requests may or expanding exemptions might the extent of EPA’s prior consultation be sent by e-mail directly to EPA at: adversely impact small entities and with representatives of affected tribal [email protected]. concluded, as a generic matter, that governments, a summary of the nature there is no adverse economic impact. of their concerns, and a statement The factual basis for the Agency’s E-mailed objections and hearing supporting the need to issue the generic certification for tolerance requests must be submitted as an ASCII regulation. In addition, Executive Order actions published on May 4, 1981 (46 file avoiding the use of special 13084 requires EPA to develop an FR 24950), and was provided to the characters and any form of encryption. effective process permitting elected Chief Counsel for Advocacy of the Small officials and other representatives of The official record for this regulation, Business Administration. Indian tribal governments ‘‘to provide as well as the public version, as meaningful and timely input in the described in this unit will be kept in B. Executive Order 12875 development of regulatory policies on paper form. Accordingly, EPA will Under Executive Order 12875, matters that significantly or uniquely transfer any copies of objections and entitled Enhancing the affect their communities.’’ hearing requests received electronically Intergovernmental Partnership (58 FR into printed, paper form as they are 58093, October 28, 1993), EPA may not Today’s rule does not significantly or received and will place the paper copies issue a regulation that is not required by uniquely affect the communities of in the official record which will also statute and that creates a mandate upon Indian tribal governments. This action include all comments submitted directly a State, local or tribal government, does not involve or impose any in writing. The official record is the unless the Federal government provides requirements that affect Indian tribes. paper record maintained at the Virginia the funds necessary to pay the direct Accordingly, the requirements of address in ‘‘ADDRESSES’’ at the compliance costs incurred by those section 3(b) of Executive Order 13084 beginning of this document. governments. If the mandate is do not apply to this rule.
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IV. Submission to Congress and the the Federal Register. This rule is not a PART 180Ð[AMENDED] Comptroller General ‘‘major rule’’ as defined by 5 U.S.C. The Congressional Review Act, 5 804(2). 1. The authority citation for part 180 U.S.C. 801 et seq., as added by the Small List of Subjects in 40 CFR Part 180 continues to read as follows: Business Regulatory Enforcement Authority: 21 U.S.C. 321(q), 346(a), and Fairness Act of 1996, generally provides Environmental protection, 371. that before a rule may take effect, the Administrative practice and procedure, Agency promulgating the rule must Agricultural commodities, Pesticides submit a rule report, which includes a and pests, Reporting and recordkeeping §180.443 [Amended] copy of the rule, to each House of the requirements. Congress and the Comptroller General of Dated: April 23, 1999. 2. In §180.443, by amending the table the United States. EPA will submit a in paragraph (b), by revising the date for report containing this rule and other Peter Caulkins, Strawberries from ‘‘3/31/99’’ to read ‘‘3/ required information to the U.S. Senate, Acting Director, Registration Division, Office 31/00’’. the U.S. House of Representatives and of Pesticide Programs. [FR Doc. 99–11385 Filed 5–5–99; 8:45 am] the Comptroller General of the United Therefore, 40 CFR chapter I is States prior to publication of the rule in amended as follows: BILLING CODE 6560±50±F
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Proposed Rules Federal Register Vol. 64, No. 87
Thursday, May 6, 1999
This section of the FEDERAL REGISTER present an opportunity to review the regulations and tell you how to get a contains notices to the public of the proposed current priorities and policies contained service area if one does not yet exist. issuance of rules and regulations. The in the regulations and propose changes Regulatory Planning and Review (E.O. purpose of these notices is to give interested that conform to existing conditions. 12866) persons an opportunity to participate in the We’ve considered the following factors rule making prior to the adoption of the final rules. in proposing changes in the current This document is not a significant regulations: rule and is not subject to review by the • The primary purpose of the Office of Management and Budget under DEPARTMENT OF THE INTERIOR amendments is to provide clear, concise Executive Order 12866. regulations that will improve program (1) This rule will not have an effect of Bureau of Indian Affairs implementation; $100 million or more on the economy. • Congress has enacted a cap on the It will not adversely affect in a material 25 CFR Part 20 level of financial assistance funding; way the economy, productivity, • RIN 1076±AD95 Existing financial assistance and competition, jobs, the environment, social services regulations do not public health or safety, or State, local, Financial Assistance and Social provide for the development of tribal or tribal governments or communities. Services Programs welfare reform/redesign plans in Tribes have been operating this accordance with tribal desires and financial assistance program for thirty AGENCY: Bureau of Indian Affairs, existing law; years and the amount of funding is Interior. • Given fluctuations in financial dependent upon the local economy in ACTION: Proposed rule. assistance caseloads and emergencies, it terms of unemployment and extent of need for funds. Approximately 400 SUMMARY: The Bureau of Indian Affairs has been difficult to plan and refine the existing service delivery framework; tribes receive some form of financial (Bureau) is proposing to revise the • existing Financial Assistance and Social The Department of Health and assistance yearly and the amount of Services Program regulations to Human Services (HHS) has made a funds varies according to caseload incorporate rules for Burial Assistance, policy decision to allow Temporary increases and decreases. Child Assistance, Disaster Assistance, Assistance for Needy Families (TANF) (2) This rule will not create a serious Emergency Assistance, General payments to be included as one of the inconsistency or otherwise interfere grants under Pub. L. 102–477; with an action taken or planned by Assistance, Services to Children, Elderly • and Families, and Tribal Welfare Pub. L. 104–193 Personal another agency. Reform. All other sections are revised Responsibility and Work Opportunity (3) This rule does not alter the and renumbered to conform to existing Reconciliation Act of 1996 (PRWORA) budgetary effects or entitlements, grants, programmatic and budgetary statutes reduced funding level authorizations user fees, or loan programs or the rights and conditions. Also, these regulations and requires General Assistance (GA) or obligations of their recipients. have been rewritten in Plain English as payments to be equal to the level of state (4) This rule does not raise novel legal required by E.O. 12866. In keeping with TANF payments; and or policy issues. • The Indian Child Protection and the intent of Plain English, we added Regulatory Flexibility Act more subparts for easier use in Family Violence Prevention Act and the reference. Adoption and Safe Families Act have The Department certifies that this established new standards in child document will not have a significant DATES: Comments must be received by welfare, and the regulations need economic effect on a substantial number July 6, 1999. revision to incorporate and consolidate of small entities under the Regulatory ADDRESSES: Mail comments to Division additional child protection and Flexibility Act (5 U.S.C. 601 et seq.). of Social Services, Bureau of Indian permanency planning requirements. The rule affects a number of Indian Affairs, 1849 C Street, NW, MS–4660– The continued focus and use of the Communities throughout the nation but MIB, Washington, DC 20240 or hand financial assistance and social services the impact is not adverse because the deliver them to room 4660 at the above program needs to be on the reservation financial assistance programs have been address. Comments will be available for and other areas where the Indian in operation for many years and this inspection at this address from 9:00 a.m. Community resides and where other regulation does not increase cases and to 4:00 p.m., Monday through Friday government entities do not provide expenditures over prior year totals beginning approximately May 26, 1999. reasonably comparable and available because it is dependent upon the extent FOR FURTHER INFORMATION CONTACT: services. The Bureau continues to of need. Larry Blair, Chief, Division of Social support the policy that Indian people Small Business Regulatory Enforcement Services, Bureau of Indian Affairs at living away from their reservation are Fairness Act (SBREFA) telephone (202) 208–2479. eligible and should receive financial SUPPLEMENTARY INFORMATION: We last assistance and social services from local This rule is not a major rule under 5 revised the financial assistance and state, county, and city resources on the U.S.C. 804(2), the Small Business social services regulations in 25 CFR same basis as non-Indians. For the Regulatory Enforcement Fairness Act. Part 20 in 1985. Since that time, a purposes of simplifying the locations This rule: number of important changes have where we will provide the financial a. Does not have an annual effect on occurred that are not reflected in the assistance and social services program, the economy of $100 million or more. existing regulations. These actions we use the term ‘‘service area’’ in these The financial assistance funds are
VerDate 26-APR-99 15:19 May 05, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.XXX pfrm03 PsN: 06MYP1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24297 divided up between 400 Indian being collected. The information quality of the human environment. A communities based upon need. collection takes 15 minutes for 200,000 detailed statement under the National b. Will not cause a major increase in respondents for a burden of 50,000 Environmental Policy Act of 1969 is not costs or prices for consumers, hours. The information collection will required. individual industries, Federal, State, or be used to make decisions within the Clarity of This Regulation local government agencies, or framework of the financial assistance geographic regions. This rule provides program, such as determining eligibility, Executive Order 12866 requires each guidance for a welfare benefit program ensuring uniformity of services, and agency to write regulations that are easy and will not affect payment levels of maintaining current records for audit to understand. We invite your eligible clients nor cause increases or purposes. The information collection is comments on how to make this decreases in existing caseloads or total required to obtain or retain a benefit. proposed rule easier to understand, expenditures. Information covered by the Privacy Act including answers to questions such as c. Does not have significant adverse will be kept confidential as required by the following: (1) Are the requirements effects on competition, employment, regulation. Please note that an agency in the proposed rule clearly stated? (2) investment, productivity, innovation, or may not collect or sponsor, and a person Does the proposed rule contain the ability of U.S.-based enterprises to is not required to respond to, a technical language or jargon that compete with foreign-based enterprises. collection of information unless it interferes with its clarity? (3) Does the This program is a welfare benefit displays a currently valid OMB control format of the proposed rule (grouping program and does not affect local number. and order of sections, use of headings, enterprises. The Paperwork Reduction Act paragraphing, etc.) aid or reduce its submission began as a separate issue in clarity? (4) Would the rule be easier to Unfunded Mandates Reform Act order to allow the tribes to continue understand if it were divided into more This rule does not impose an working with the family assistance (but shorter) sections? (A ‘‘section’’ unfunded mandate on State, local, or programs while the rule was being appears in bold type and is preceded by tribal governments or the private sector revised. The notice of reinstatement for the symbol ‘‘§ ’’ and a numbered of more than $100 million per year. The this information collection was heading; for example, § 20.300 What rule does not have a significant or published in the Federal Register for a are the basic eligibility criteria?) (5) Is unique effect on State, local, or tribal 60 day notice period, and recently for a the description of the proposed rule in governments or the private sector. A 30 day period (63 FR 30771 of December the ‘‘supplementary information’’ statement containing the information 21, 1998 and 63 FR 70414 of March 31, section of this preamble helpful in required by the Unfunded Mandates 1999 respectively). The Federal Register understanding the proposed rule? What Reform Act (1 U.S.C. 1531, et seq.) is not Notices specifically requested else could we do to make the proposed required. comments concerning: rule easier to understand? 1. Whether the collection of Takings (E.O. 12630) Send a copy of any comments that information is necessary for the proper concern how we could make this In accordance with Executive Order performance of the functions of the proposed rule easier to understand to: 12630, the rule does not have significant Bureau including whether the Office Regulatory Affairs, Department of takings implications. A takings information will have practical utility; the Interior, Room 7229, 1849 C Street implication assessment is not required. 2. The accuracy of the Bureau’s NW, Washington, DC 20240. You may estimate of the burden of the Federalism (E.O. 12612) also e-mail the comments to this information collection, including the address: [email protected] In accordance with Executive Order validity of the methodology and 12612 this rule does not have significant assumptions used; List of Subjects in 25 CFR Part 20 Federalism effects. A Federalism 3. The quality, utility, and clarity of Administrative practice and assessment is not required. the information to be collected; and, procedures, Child welfare, Indians- 4. How to minimize the burden of the Civil Justice Reform (Executive Order Social welfare, Public assistance information collection on those who are 12988) programs. to respond, including the use of In accordance with Executive Order appropriate automated electronic, For the reasons set out in the 12988, the Office of the Solicitor has mechanical or other forms of preamble, Part 20 of Title 25, determined that this rule does not information technology. Subchapter D, Chapter I of the Code of unduly burden the judicial system and OMB received the request for Federal Regulations is proposed to be meets the requirements of sections 3(a) clearance of this information collection amended as set forth below: and 3(b)(2) of the Order. March 31, 1999. You may send any SUBCHAPTER DÐHUMAN SERVICES comments about the collection to the Paperwork Reduction Act Desk Officer for the Department of the PART 20ÐFINANCIAL ASSISTANCE This regulation requires an Interior, Office of Information and AND SOCIAL SERVICES PROGRAMS information collection from 10 or more Regulatory Affairs—Office of parties and a submission under the Management and Budget, 725 17th Subpart AÐDefinitions, Purpose and Policy Paperwork Reduction Act is required. Street NW, Washington, DC 20503. Sec. An OMB Form 83–I has been reviewed OMB has up to 60 days to decide if the 20.100 What definitions clarify the meaning by the Department and sent to OMB for information collection will be approved; of the provisions of this part? 20.101 What is the purpose of this part? approval. however, your comments will receive The Paperwork Reduction Act 20.102 What is the Bureau’s policy in maximum consideration if they are providing financial assistance and social submission is BIA Financial Assistance received within the first 30 days. services under this part? and Social Services Program, form National Environmental Policy Act 20.103 Have the information collection number OMB 1076–0017. The Bureau requirements in this part been approved has reviewed the information needed This rule does not constitute a major by the Office of Management and and reduced the amount of information Federal action significantly affecting the Budget?
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Subpart BÐWelfare Reform 20.322 Who is eligible to receive a TWEP Subpart FÐAdministrative Procedures 20.200 What contact will the Bureau incentive payment? 620.600 How is an application for maintain with state, tribal, county, local, 20.323 Will the local TWEP be required to financial assistance or social services and other Federal agency programs? have written program procedures? made? 20.201 How does the Bureau designate 20.324 When can the Bureau provide Burial 20.601 From whom is eligibility service area and what information is Assistance? information collected? required? 20.325 What is the process for making 20.602 How is an application approved or 20.202 What does financial assistance application for Burial Assistance for denied? include? eligible Indians? 20.603 How is an applicant or recipient 20.203 What is a tribal redesign plan? 20.326 When are the related transportation notified that benefits or services are 20.204 Can a tribe incorporate assistance expenses covered by Burial Assistance? denied? from other sources into a tribal redesign 20.327 When can the Bureau provide 20.604 How is an incorrect payment plan? Disaster Assistance? adjusted or recovered? 20.205 Must all tribes develop a tribal 20.328 How can a tribe apply for Disaster 20.605 What happens when applicants or redesign plan? Assistance? recipients knowingly and willfully 20.206 Can tribes change eligibility criteria 20.329 When can the Bureau provide provide false, fictitious, or fraudulent or levels of payments for General Emergency Assistance payments? information? Assistance? 20.330 What is the payment standard for Subpart GÐHearings and Appeals 20.207 Must a tribe get approval for a tribal Emergency Assistance? redesign plan? 20.700 Can an applicant or recipient appeal 20.208 Can a tribe use savings from a tribal Subpart DÐServices to Children, Elderly, the decision of a Bureau official? redesign plan to meet other priorities of and Families 20.701 Does an applicant or recipient the tribe? 20.400 For whom should Services to receive financial assistance while an 20.209 What if the tribal redesign plan Children, Elderly, and Families be appeal is pending? leads to increased costs? provided? 20.702 When is an appeal hearing 20.210 Can a tribe operating under a tribal 20.401 What services are included under scheduled? redesign plan go back to operating under Services to Children, Elderly, and 20.703 What must the written notice of this part? Families Services? hearing include? 20.211 Can eligibility criteria or payments 20.704 Who conducts the hearing or appeal for Burial Assistance, Child Assistance, Subpart EÐChild Assistance from a Bureau decision or action and what is the process? and Disaster Assistance change? 20.500 What are the eligibility criteria for 20.705 Can an applicant or recipient appeal Child Assistance? Subpart CÐDirect Assistance a tribal decision? 20.501 What are the rates of payment for 20.300 What are the basic eligibility foster care? Authority: 25 U.S.C. 13; Pub. L. 102–477, criteria? 106 Stat. 2302; Pub. L. 104–193, 110 Stat. 20.502 Can Child Assistance funds be used 20.301 What is the goal of General 2105; Pub. L. 105–83, 111 Stat. 1543. Assistance? for placement of Indian children in 20.302 Are Indian applicants required to treatment centers? seek assistance through TANF? 20.503 Can Child Assistance funds be used Subpart AÐDefinitions, Purpose and 20.303 When is an applicant eligible for for Indian adoption subsidies or Policy General Assistance? subsidized guardianships? 20.504 What eligibility requirements must § 20.100 What definitions clarify the 20.304 When will the Bureau review meaning of the provisions of this part? eligibility for General Assistance? be met for an Indian adoption subsidy or 20.305 What does redetermination involve? subsidized guardianship? Appeal means a written request for 20.306 What is the payment standard for 20.505 What is the payment standard for correction of an action or decision of a General Assistance? adoption and guardianship? specific program decision by a Bureau 20.307 What resources does the Bureau 20.506 Can homemaker services be official (§ 20.700) or a tribal official consider when determining need? provided with Child Assistance? (§ 20.705). 20.308 What does earned income include? 20.507 What services are provided jointly Applicant means an Indian individual with the Child Assistance Program? 20.309 What does unearned income or person by or on whose behalf an include? 20.508 What information is required in the 20.310 What recurring income must be foster care case file? application for financial assistance and/ prorated? 20.509 What are the requirements for foster or social services has been made under 20.311 What deducted amounts will be care? this part. disregarded from the gross amount of 20.510 How is the court involved in foster Application means the written earned income? care placements? process through which a request is 20.312 What amounts will be disregarded 20.511 Should permanency plans be made for financial assistance or social from income or other resources? developed? services. 20.313 How will the Bureau compute 20.512 Can the Bureau/tribal contractors Area Director means the Bureau financial assistance payments? make Indian adoptive placements? official in charge of an Area Office. 20.314 What is the policy on employment? 20.513 Should Interstate Compacts be used Assistant Secretary means the 20.315 When is the employment policy not for the placement of children? applicable? Assistant Secretary—Indian Affairs. 20.514 What assistance can the courts 20.316 What must a person covered by the Authorized representative means a request from social services on behalf of employment policy do? parent or other caretaker relative, children? 20.317 How will the ineligibility period be 20.515 What is required for case conservator, legal guardian, foster implemented? parent, attorney, paralegal acting under 20.318 What case management management? 20.516 How are child abuse and neglect the supervision of an attorney, friend or responsibilities does the social services other spokesperson duly authorized and worker have? cases to be handled? 20.319 What responsibilities does the acting on behalf or representing the general assistance recipient have? applicant or recipient. 20.320 What is TWEP? Bureau means the Bureau of Indian 20.321 Does TWEP allow incentive Affairs of the United States Department payment? of the Interior.
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Bureau Standard of Assistance means Federal assistance as documented in the eligible for any other programs such as payment standards established by the case file and who requires placement in Medicaid/Medicare as documented in Assistant Secretary—Indian Affairs for a foster home or specialized non- the case file. These individuals must be burial, disaster, emergency, and medical care facility, in accordance with under the supervision of a social adoption and guardianship subsidy. In standards of payments established by services agency which is administered accordance with Pub. L. 104–193, the the state in which they reside pursuant by a person trained in such skills as Bureau standard of assistance for to the foster care program under Title IV child care and home management to general assistance is the state rate for of the Social Security Act (49 Stat. 620), prevent out-of-home placement. TANF in the state where the applicant or has special needs as specified in Household means persons living lives. Child Assistance and foster care § 20.100 (pp). together who may or may not be related rates are in accordance with Title IV of Designated representative means an to the ‘‘head of household.’’ the Social Security Act (49 Stat. 620) official of the Bureau who is designated Indian means any person who is a and Pub. L. 104–193. by a Superintendent to hold a hearing member of any of those tribes listed in Burial assistance means a financial as prescribed in §§ 20.700 through the Federal Register pursuant to 25 CFR assistance payment made on behalf of 20.705 and who has had no prior part 83, as recognized by and receiving an indigent eligible Indian person who involvement in the proposed decision services from the Bureau of Indian meets the eligibility criteria to provide under § 20.602 and whose hearing Affairs. minimum burial expenses according to decision under §§ 20.700 through Indian court means Indian tribal court Bureau payment standards established 20.705 will have the same force and or court of Indian offenses. by the Assistant Secretary—Indian effect as if rendered by the Indian tribe means an Indian or Affairs. Superintendent. Alaskan Native tribe, band, nation, Case means all individuals in the Disaster means a situation where a pueblo, village, or community that the household. Tribal Community is adversely effected Secretary of the Interior acknowledges Case management means the activity by a natural disaster or other forces to exist as an Indian tribe pursuant to of a social services worker in assessing which pose a threat to life, safety, or Pub. L. 103–454, 108 Stat. 4791. client and family problem(s), case health as specified in §§ 20.327 and Individual Self-sufficiency Plan (ISP) planning, coordinating and linking 20.328. means a plan designed to meet the goal services for clients, monitoring service Emergency means a situation where of employment through specific action provisions and client progress, an individual or family’s home and steps and is incorporated within the advocacy, tracking and evaluating personal possessions are either case plan. The plan is jointly developed services provided, such as evaluation of destroyed or damaged through forces and signed by the general assistance child’s treatment being concurrent with beyond their control as specified in recipient and social services worker. parent’s treatment, and provision of § 20.329. Need means the deficit after aftercare service. Activities may also Employable means an eligible Indian consideration of income and other include resource development and person who is physically and mentally resources necessary to meet the cost of providing other direct services such as able to obtain employment, and who is essential need items and special need accountability of funds, data collection, not exempt from seeking employment in items as defined by the Bureau standard reporting requirements, and accordance with the criteria specified in of assistance for the state in which the documenting activities in the case file. § 20.315. applicant or recipient resides. Case plan means a signed written Essential needs means shelter, food, Non-medical care means financial plan with time limited goals which is clothing and utilities, as included in the assistance for room and board services developed and signed by the service standard of assistance in the state where for individuals in non-medical care recipient and social services worker. the eligible applicant lives. facilities. These individuals must not be The case plan will include Extended family means persons eligible for SSI or any other Federal or documentation of referral and related by blood, marriage or as defined state programs and this information ineligibility for other services. The plan by Indian custom. must be documented in the case file. must incorporate the steps needed to Family assessment means a social Permanency plan means the assist individuals and families to services evaluation of a family’s abilities documentation in a case plan which resolve social, economic, psychological, and resources to provide the necessary provides for permanent living interpersonal, and/or other problems, to care and supervision for the child(ren), alternatives for the child(ren) in foster achieve self-sufficiency and and individuals within the family’s care who are not eligible for any other independence. All plans for children in current living situation and is included Federal or state program. Permanency foster care must include a time specific in the case file. plans are developed in accordance with goal of the return of the child to the Foster care services means those tribal, cultural, and tribal/state legal home or initiation of a guardianship/ social services provided when an Indian standards when the parent or guardian adoption. child lives away from the family home. is unable to resolve the issues that Child means an Indian person under General Assistance means a require out of home placement of the the age of 18 or such other age of secondary or residual source of financial child(ren). majority as may be established for assistance payments to eligible Indian Protective services means those purposes of parental support by tribal or individuals for essential needs as services necessary to protect an state law (if any) applicable to the provided and pursuant to §§ 20.300 individual who is the victim of an person at his or her residence, except through 20.319. alleged and/or substantiated abuse or that no person who has been Head of household means the persons neglect incident. In coordination with emancipated by marriage will be in the household with whom the law enforcement and tribal courts, this deemed a child. household members live and who may include placement of the Child assistance means financial makes application for benefits. individual out of the home to assure the assistance provided on behalf of an Homemaker services means those safety of the individual while the Indian child, or an Indian under age 18, non-medical services purchased or allegations are being investigated. Social who is not eligible for any other state or contracted for individuals who are not workers will not remove individuals
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The children must not be the Office of Management and Budget? provision of social services in the home, eligible for any other Federal or state The information collection the coordination and referral to other program and this must be documented requirements contained in §§ 20.300, programs/services and the involvement in the case file. 20.400, and 20.500 have been submitted of Child Protection and/or Multi- Substitute care means the provision of for clearance to the Office of Disciplinary Teams. foster care or any in-home, out of home, Management and Budget under 44 Public assistance means those or relative placement of the child(ren) U.S.C. 35d et seq. The notice of programs of financial assistance by someone other than a parent. reinstatement for this information provided by state, tribal, county, local collection was published in the Federal Superintendent means the Bureau Register on March 31, 1999. and Federal organizations including official in charge of an Agency Office. programs under Title IV of the Social Supplemental Security Income (SSI) Subpart BÐWelfare Reform Security Act (49 Stat. 620), as amended, means those programs of assistance and (Pub. L. 104–193). provided under Title XVI of the Social § 20.200 What contact will the Bureau Recipient is an individual or person maintain with State, tribal, county, local, who has been determined as eligible Security Act (49 Stat. 620), as amended. and other Federal agency programs? through documentation in the case file Temporary Assistance for Needy We will coordinate all financial and is receiving financial assistance or Families (TANF) means one of the assistance and social services programs social services under this part. programs of financial assistance with State, tribal, county, local and Recurring income means any cash or provided under the Personal other Federal agency programs to ensure in kind payment, earned or unearned, Responsibility and Work Opportunity that the financial assistance and social received on a monthly, quarterly, Reconciliation Act of 1996, (PRWORA). services program avoids duplication of semiannual, or annual basis. Tribal governing body means the assistance. Resources means income and other federally recognized governing body of liquid assets available to an Indian an Indian tribe. § 20.201 How does the Bureau designate a person or household to meet current service area and what information is Tribal redesign plan means a tribally required? living costs, unless otherwise designed method for changing general (a) The geographic boundaries of specifically excluded by Federal statute. assistance eligibility and/or payment reservations for those tribes having Liquid assets are those properties in the levels in accordance with appropriation reservations defines their service area. form of cash or other financial language so as to reduce dependence on instruments which can be converted to (b) The Assistant Secretary—Indian general assistance as specified in Affairs can designate service areas for cash, such as savings or checking §§ 20.203 through 20.211. accounts, promissory notes, mortgages financial assistance or social services to: Tribal Work Experience Program (1) Tribes having no reservations; and similar properties, and retirements (TWEP) means a program operated by (2) Tribes having no areas adjacent or and annuities. tribal contract/grant or self-governance adjoining reservations; Secretary means the Secretary of the annual funding agreement, which (3) Tribes having no allotments Interior. provides eligible participants with work outside the reservations; Service area means: experience and training that promotes (4) Tribes having no areas defined as (1) Reservations; and/or and preserves work habits and develops reservations or service areas by statute; (2) Areas adjacent or adjoining work skills aimed toward self- or reservations; and/or (5) Tribes having no other defined (3) Allotments outside the sufficiency. The Bureau payment areas designated by the Assistant reservations; and/or standard is established by the Assistant Secretary—Indian Affairs. (4) Areas defined as reservations or Secretary—Indian Affairs. Unemployable means a person who (c) If you are a tribe requesting service service areas by statute; and/or area designation you must submit a (5) Other defined areas designated by meets the criteria specified in § 20.315. resolution that certifies that: the Assistant Secretary—Indian Affairs § 20.101 What is the purpose of this part? (1) Tribal members and their Indian pursuant to this part. family members residing within the Services to children, elderly and The regulations in this part govern the service area are socially, culturally, and families means social services, provision of Child Assistance, General economically affiliated with your tribe including protective services, not Assistance, and Services to Children, Elderly and Families to eligible Indians. and service area. including money payments, provided (2) The proposed service area will not through the social work skills of § 20.102 What is the Bureau's policy in include counties or parts thereof that casework, group work or community providing financial assistance and social have reasonably available comparable development to assist in solving social services under this part? services. problems involving children, elderly (d) You must provide documentation and families. (a) The Bureau can provide assistance under this part to eligible Indians when showing that: Special needs means a financial (1) The area is administratively assistance payment made to or on behalf financial assistance or social services are either not available or not provided feasible (that is, it can allow us to of individuals who have extenuating, provide an adequate level of services to non-medical circumstances which by State, tribal, county, local and other Federal agencies. the Indian people residing in the area); warrant a one-time annual financial (2) The area is near the Indian assistance payment when other (b) Bureau social services programs Community; resources are not available and the will not be used to supplement or (3) No duplication of services exists; circumstances are documented in the supplant other programs. and case files. (c) Bureau financial assistance and (4) All eligible Indians will be served. Subsidized guardianship means a social services are subject to annual (e) You must send documentation to payment of a monthly subsidy, not to Congressional appropriations. the Area Director who will certify its
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Bureau servicing office can administer a (a) Be a member of an Indian tribe or tribal redesign plan as requested by a § 20.202 What does financial assistance be a one-fourth degree or more blood include? tribal resolution. quantum descendant of a member of any The following types of assistance are § 20.207 Must a tribe get approval for a Indian tribe; and included in financial assistance: tribal redesign plan? (b) Not have sufficient resources to (a) Burial Assistance for indigent meet the essential need items defined by burials; (a) If you have a Pub. L. 93–638 the Bureau standard of assistance; and (b) Child Assistance for children in contract or receive direct services from (c) Reside in the service area as foster home care, children in need of us, you must obtain approval from the defined in § 20.100; and adoption or guardianship, children in Area Director or a Bureau servicing (d) Meet the additional eligibility need of residential care, and children office before developing a redesign plan. criteria for each of the specific programs with special needs; You must submit your redesign plan for of financial assistance or social services (c) Disaster Assistance in cases where approval at least three months before in §§ 20.301 through 20.516. the Federal Emergency Management the effective date in accordance with Agency (FEMA) or the Red Cross do not § 20.301 What is the goal of General Pub. L. 93–638 as amended and part Assistance? provide assistance. 900. (d) Emergency Assistance for essential The goal of the General Assistance (b) If you operate with a self- needs to prevent hardship caused by program is to increase self-sufficiency. burnout, flooding of homes, or other life governance annual funding agreement Each General Assistance recipient must threatening situations that may cause or Pub. L. 102–477 grant you must ask work with the social services worker to loss or damage of personal possessions; the appropriate Area Director to make a develop and sign an Individual Self- and recommendation for approval of the Sufficiency Plan (ISP). The plan must (e) General Assistance for basic redesign. The Assistant Secretary— outline the specific steps the individual essential needs. Indian Affairs will consider the Area will take to increase independence by Director’s recommendation for approval meeting the goal of employment. § 20.203 What is a tribal redesign plan? before making a final decision. § 20.302 Are Indian applicants required to (a) A tribal redesign plan allows a seek assistance through TANF? tribe to: § 20.208 Can a tribe use savings from a (1) Change eligibility for general tribal redesign plan to meet other priorities Yes. All Indian applicants with assistance in the service area; or of the tribe? dependent children are required to apply for TANF and follow TANF (2) Change the amount of general Yes. You may use savings from a regulations. assistance payments for individuals redesign to meet other priorities. within the service area. § 20.303 When is an applicant eligible for (b) If you develop a tribal redesign § 20.209 What if the tribal redesign plan General Assistance? leads to increased costs? plan it must: To be eligible for General Assistance (1) Treat all persons in the same The tribe must meet any increase in an applicant must: situation equally; and costs to the General Assistance program (a) Meet the criteria contained in (2) Not result in additional expenses that result solely from tribally increased § 20.300; for the Bureau. payment levels due to a redesign plan. (b) Not have sufficient resources to § 20.204 Can a tribe incorporate meet the essential need items defined by assistance from other sources into a tribal § 20.210 Can a tribe operating under a the Bureau standard of assistance; and redesign plan? tribal redesign plan go back to operating (c) Apply concurrently for financial under this part? Yes. A tribe may incorporate an HHS- assistance from other State, tribal, approved TANF tribal welfare plan and Yes. A tribe operating under a tribal county, local, or other Federal agency associated funding into a Pub. L. 102– redesign plan can choose to return to programs for which he/she is eligible; 477 grant, a Pub. L. 103–413 self- operation of the program as provided in (d) Not receive TANF, Supplemental Security Income (SSI), or benefits from governance annual funding agreement, §§ 20.300 through 20.323. or a tribal redesign plan. other state or Federal entitlement § 20.211 Can eligibility criteria or programs; and § 20.205 Must all tribes submit a tribal payments for Burial Assistance, Child (e) Develop with a social services redesign plan? Assistance, and Disaster Assistance worker and sign an employment strategy No. You must submit a tribal redesign change? to meet the goal of employment through specific action steps including job plan under § 20.206 only if you want to No. Neither the Bureau nor a tribe change the way that the General readiness and job search activities. may change eligibility criteria or levels Assistance program operates in your of payment for Burial Assistance, Child § 20.304 When will the Bureau review service area. Assistance, Disaster Assistance, and eligibility for General Assistance? § 20.206 Can tribes change eligibility Emergency Assistance awarded in Pub. The Bureau will review eligibility for criteria or levels of payments for General L. 93–638 contracts, Pub. L. 102–477 General Assistance: Assistance? grants, Pub. L. 103–413 self-governance (a) Whenever there is an indication of Yes. If you have a redesign plan you annual funding agreements. a change in status which can affect a can administer General Assistance recipient’s eligibility or amount of
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Recipients are required to when the applicant or recipient has a (b) Income received by individuals immediately inform the social services legal interest in the liquidated sum, as employed on a contractual basis over office of any such changes; defined in § 20.100. the term of a contract; and (b) Not less than every 3 months for (c) Intermittent income received individuals who are not exempt from § 20.308 What does earned income quarterly, semiannually, or yearly over include? seeking or accepting employment in the period covered by the income. accordance with § 20.315 or the ISP; and Earned income is cash or any in-kind (c) Not less than every 6 months for payment earned in the form of wages, § 20.311 What deducted amounts will be all recipients. salary, commissions, or profit, from disregarded from the gross amount of activities by an employee or self- earned income? § 20.305 What does redetermination employed individual. Earned income (a) The social services worker will involve? include: disregard the following amounts from (a) Redetermination assesses the need (a) Any one-time payment to an the earned income: for continued financial assistance as individual for activities which were (1) Other Federal, State, and local outlined in § 20.304. It includes: sustained over a period of time (for taxes; (1) A home visit; example, the sale of farm crops, (2) Social Security (FICA); (2) An estimate of income, living livestock, artwork, crafts and beading); (3) Health insurance; circumstances, household composition and (4) Work related expenses, including for the month(s) for which financial (b) With regard to self-employment, reasonable transportation costs; assistance is to be provided; and total profit from a business enterprise (5) Child care costs, except where the (3) Appropriate revisions to the case (i.e., gross receipts less expenses other parent in the home is not working plan. incurred in producing the goods or or is not disabled; and (b) The social services worker will services). Business expenses do not (6) The cost of special clothing, tools, make a decision as to whether the include depreciation, personal business and equipment directly related to the recipient will continue to receive and entertainment expenses, personal individual’s employment. general assistance based on paragraph transportation, capital equipment (b) For self-employed individuals, the (a) of this section. purchases, or principal payments on social services worker will deduct the loans for capital assets or durable goods. costs of conducting business and all of § 20.306 What is the payment standard for the amounts in paragraph (a) of this General Assistance? § 20.309 What does unearned income section. (a) Under Pub. L. 104–193, the Bureau include? must use the same TANF payment Unearned income includes, but is not § 20.312 What amounts will be disregarded standard (and any associated rateable limited to: from income or other resources? reduction) that exists in the State or (a) Income from interest; oil and gas The social services worker will service area where the applicant or and other mineral royalties; gaming disregard the following amounts from recipient resides. This payment income per capita distributions; rental income, or other resources: standard is the amount from which the property; cash contributions, such as (a) The first $2,000 of liquid resources Bureau subtracts net income and child support and alimony; gaming annually available to the household; resources to determine General winnings; retirement; (b) Any home produce from a garden, Assistance eligibility and payment (b) Annuities, veteran’s disability, livestock, and poultry used by the levels; unemployment benefits, and Federal applicant or recipient and his/her (b) If the State does not have a and State tax refunds; household for their consumption; and standard for an adult, we will use either (c) Per capita payments not excluded (c) Resources specifically excluded by the difference between the standard for by Federal statute; Federal statute. a child and the standard for a household (d) Income from sale of trust land and of two, or one-half of the standard for real or personal property that is set § 20.313 How will the Bureau compute financial assistance payments? a household of two, whichever is aside for reinvestment in trust land or greater; and a primary residence, but has not been (a) The social services worker will (c) If the State does not have a TANF reinvested in trust land or a primary compute financial assistance payments program, we will use the AFDC residence at the end of one year from by: payment standard which was in effect the date the income was received; (1) Calculating the difference between on September 30, 1995, in the State (e) In-kind contributions providing the Bureau standard of assistance and where the applicant or recipient resides. shelter at no cost to the individual or all resources calculated under §§ 20.307 household, this must equal the amount through 20.310; § 20.307 What resources does the Bureau for shelter included in the State (2) Applying the rateable reduction or consider when determining need? standard, or 25 percent of the State maximum payment level used by the When the Bureau determines General standard, whichever is less; and State where the applicant lives; Assistance eligibility and payment (f) Financial assistance provided by a (3) Deducting an amount for shelter levels, we consider income and other State, tribal, county, local, or other (see paragraph (b) of this section for resources as specified in §§ 20.308 and Federal agency. details on how to calculate a shelter 20.309. amount); and (a) All earned or unearned income § 20.310 What recurring income must be (4) Rounding the result down to the must be calculated as income in the prorated? next lowest dollar. month it is received and as a resource The following recurring income is (b) The social services worker must thereafter, except that certain income prorated: calculate a shelter amount for purposes obtained from the sale of real or (a) Recurring income received by of paragraph (a)(3) of this section. To personal property may be exempt as individuals over a 12-month period for calculate the shelter amount: provided in § 20.309. less than a full year’s employment (for (1) The shelter amount must not (b) Resources are considered to be example, income earned by teachers exceed the amount for shelter in the available when they are liquidated and who are not employed for a full year); State TANF standard;
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(2) If the State TANF does not specify (c) The social services worker must (3) Accept local and seasonable an amount for shelter, the social not provide General Assistance employment when it is available. services worker must calculate the payments for any period before the date (b) A head of household who does not amount as 25 percent of the total State of the application for assistance. comply with this section will not be TANF payment; and (3) If there is more than one § 20.314 What is the policy on eligible for General Assistance for a household in a dwelling, the social employment? period of at least 60 days but not more than 90 days. This action must be services worker must prorate the actual (a) An applicant or recipient must: shelter cost among the households documented in the case file. receiving General Assistance; this (1) Actively seek employment, including the use of available State, § 20.315 When is the employment policy amount cannot exceed the amount in not applicable? the standard for individuals in similar tribal, county, local or Bureau-funded circumstances. The head of each employment services; The employment policy in § 20.314 household is responsible for his/her (2) Make satisfactory progress in an does not apply to the persons shown in portion of the documented shelter cost. ISP; and the following table.
The employment policy in § 20.314 does not apply to * ** if * ** and * **
(a) Anyone younger than 16. (b) A full-time student under the age of 19 ...... he/she is attending an elementary or sec- he/she is making satisfactory progress. ondary school or a vocational or technical school equivalent to a secondary school. (c) A person enrolled at least half-time in a pro- he/she is making satisfactory progress ...... he/she was an active General Assistance re- gram of study under Section 5404 of Pub. L. cipient for a minimum of 3 months before 100±297. determination/redetermination of eligibility. (d) A person suffering from a temporary med- it is documented in the case plan that the ill- ical injury or illness. ness or injury is serious enough to tempo- rarily prevent employment. (e) An incapacitated person who has not yet re- a physician, psychologist, or social services the assessment is documented in the case ceived Supplemental Security Income (SSI) worker certifies that a physical or mental plan. assistance. impairment (either by itself, or in conjunc- tion with age) prevents the individual from being employed. (f) A caretaker who is responsible for a person a physician or certified psychologist verifies the case plan documents that: the condition in the home who has a physical or mental the condition. requires the caretaker to be home on a vir- impairment. tually continuous basis; and there is no other appropriate household member avail- able. (g) A parent or other individual who does not he/she personally provides full-time care to a have access to child care. child under the age of six. (h) A person for whom employment is not ac- there is a minimum commuting time of one cessible. hour each way.
§ 20.316 What must a person covered by show that you have sought local and § 20.319 What responsibilities does the the employment policy do? seasonal employment in accordance general assistance recipient have? (a) If you are covered by the with the ISP; and In working with the social services employment policy in § 20.314, you (c) Your eligibility suspension will worker, you the recipient must: must seek employment and provide affect only you. The Bureau will not evidence of your monthly efforts to apply it to other eligible members of the (a) Participate with the social services obtain employment in accordance with household. worker in developing an ISP and sign your ISP. the ISP; § 20.318 What case management (b) If you do not seek and accept responsibilities does the social services (b) Perform successfully in the work available local and seasonal worker have? related activities, community service, employment, or you quit a job without training and/or other employment In working with each recipient, you, good cause, you cannot receive General assistance programs developed in the the social services worker must: Assistance for a period of at least 60 ISP; days but not more than 90 days after (a) Assess the general employability of (c) Participate successfully in you refuse or quit a job. the recipient; (b) Assist the recipient in the treatment and counseling services § 20.317 How will the ineligibility period be development of the ISP; identified in the ISP; implemented? (c) Sign the ISP; (d) Participate in evaluations of job (a) If you refuse or quit a job, your (d) Help the recipient identify the readiness and or any other testing ineligibility period will continue until service(s) needed to meet the goals required for employment purposes; and you seek and accept appropriate identified in their ISP; (e) Demonstrate that you are actively available local and seasonal (e) Monitor and supervise recipient seeking employment by providing the employment and fulfill your obligations participation in work related training social services worker with evidence of already agreed to in the ISP. and other employment assistance job search activities as required in the (b) The Bureau will reduce your programs; and suspension period by 30 days when you (f) Document activities in the case file. ISP.
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§ 20.320 What is TWEP? social security, and Individual Indian decision on whether disaster assistance TWEP is a program that provides Money (IIM) accounts. Determination of will be provided and to what extent. work experience and job skills to need will be accomplished on a case by case basis using the Bureau payment § 20.329 When can the Bureau provide enhance potential job placement for the Emergency Assistance payments? general assistance recipient. TWEP standard. programs can be incorporated within (b) Requests and applications for Emergency Assistance payments can Pub. L. 93–638 self-determination Burial Assistance must be submitted be provided to individuals or families contracts, Pub. L. 102–477 grants, and within 30 days following death. who suffer from a burn out, flood, or Pub. L. 103–413 self-governance annual (c) Applications are subject to other destruction of their home and loss funding agreements at the request of the eligibility determinations in accordance or damage to personal possessions and tribe. with criteria specified at § 20.300. will be limited to essential needs and (d) The approved payment standard other non-medical necessities. § 20.321 Does TWEP allow an incentive will not exceed the Bureau maximum payment? § 20.330 What is the payment standard for burial payment standard which will be Emergency Assistance? Yes. Incentive payments to established by the Assistant Secretary— participants are separate and will not be The approved payment standard will Indian Affairs 60 days after this rule is not exceed the Bureau’s maximum considered as wages or work related published in final. The payment expenses, but as grant assistance Emergency Assistance payment standard will be reviewed periodically standard which will be established by payments under §§ 20.320 through to determine if revision is necessary. 20.323. Incentive payments will not the Assistant Secretary—Indian Affairs exceed the Bureau maximum payment § 20.326 When are the related 60 days after this rule is published in standard established by the Assistant transportation expenses covered by Burial final. The payment standard will be Secretary—Indian Affairs. The payment Assistance? reviewed periodically to determine if standard will be reviewed periodically Transportation costs directly revision is necessary. to determine if revision is necessary. associated with burials are normally a Subpart DÐServices to Children, part of the established burial rate. In Elderly, and Families § 20.322 Who is eligible to receive a TWEP those instances where an additional incentive payment? transportation charge is added to the § 20.400 For whom should Services to (a) Consistent with the ISP, in burial rate because of extenuating Children, Elderly, and Families be situations where the participation is circumstances, the social services provided? mandatory and the recognized head of worker can pay the added charge. Services to Children, Elderly, and the family unit is certified as However, the social services worker will Families will be provided for Indians unemployable, an alternate member of ensure that these charges are reasonable, meeting the requirements prescribed in the assistance group, such as the spouse equitable, and apply to burials for § 20.300 who request such services or or another adult, will be designated as eligible indigent individuals who are on whose behalf such services are available for the TWEP incentive socially, culturally, and economically requested. payment. affiliated with their tribes and who have (b) Where there are multiple family not resided out of the service area for a § 20.401 What services are included under Services to Children, Elderly and Families? units in one household, one member of period of time exceeding six each family unit will be eligible to consecutive months and this must be Services to Children, Elderly, and receive the TWEP incentive payment. documented in the case plan. Families can include, but are not limited to, the following: § 20.323 Will the local TWEP be required to § 20.327 When can the Bureau provide (a) Assistance in solving problems have written program procedures? Disaster Assistance? related to family functioning, Yes. The local TWEP must have Disaster assistance is immediate and interpersonal relationships, economic specific written program procedures or short term relief from a disaster and opportunity, money management, and that cover hours of work, acceptable can be provided to a tribal community referral to the appropriate resource for reasons for granting leave from work, when services are not provided by problems related to illness, physical or evaluation criteria and monitoring plans FEMA or Red Cross in accordance to mental handicaps, drug abuse, and ISP’s for participants. Work § 20.328. alcoholism, and violation of law. readiness progress must be documented (b) Protective services are provided in each ISP. § 20.328 How can a tribe apply for Disaster when children or adults are deprived Assistance? § 20.324 When can the Bureau provide temporarily or permanently of needed Burial Assistance? (a) The tribe affected by the disaster supervision by responsible adults, or are is considered the applicant and must In the absence of other resources, the neglected, exploited, or need services submit the following to the Area Bureau can provide Burial Assistance when they are mentally or physically Director through the local for eligible indigent Indians meeting the handicapped or otherwise disabled. Superintendent: requirements prescribed in § 20.300. Protective services for children and (1) A tribal resolution requesting associated case management data have § 20.325 What is the process for making disaster assistance; and been developed for protective services, application for Burial Assistance for eligible (2) A copy of county, state, or and will continue to be consolidated for Indians? Presidential declaration of disaster; and nationwide reporting as per Pub. L. (a) The application is made on behalf (3) The projected extent of need in the 101–630 and Pub. L. 99–570. Such of the deceased who is considered the service area not covered by other services can include, but are not limited applicant. Determination of eligibility is Federal funding sources. to, the following: based on the income and resources (b) The Area Director must forward (1) Response to requests from available to him/her in accordance with the above tribal documents and his/her members of the community on behalf of § 20.100(mm). This includes but is not recommendation to the Assistant children or adults alleged to need limited to SSI, veterans death benefits, Secretary—Indian Affairs for final protective services. Coordination with
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Law Enforcement and/or courts must be financial assistance. The child is not a child currently in foster care. All other completed prior to removal of receiving and is not eligible to receive available resources must be considered individuals except in life or death TANF or other assistance and is not and documented in the case file. Prior situations. included in such payments involving to authorizing a subsidy, approval of the (2) Family and child services, other caregivers. An otherwise eligible Area Director is required. including referrals for homemaker and child can receive Child Assistance upon day care services for children; and application for and pending initial § 20.504 What eligibility requirements receipt of TANF or other financial must be met for an Indian adoption subsidy (3) Services to Indian courts, which or subsidized guardianship? can include, but are not limited to, the assistance; following: (c) The child resides in an area where The eligibility requirements that must (i) Investigation of and reports comparable Child Assistance and be met for an Indian adoption subsidy concerning allegations of child abuse services are not available or are not or subsidized guardianship are as and neglect, abandonment, and being provided to all residents on the follows: (a) The child(ren) must be under the conditions such as mentally or same basis from a state, tribal, county, age of 18 (with regards to special physically handicapped or otherwise local, and Federal agencies; and circumstances as defined by tribal disabled individual which can require (d) All income accruing to children, except income exempted by Federal standards); referrals; (b) The child(ren) must have been in (ii) Provision of social information statute and income earned by the child, foster care prior to the adoption or related to the disposition of a case, will be considered as a resource which guardianship placement with payment, including recommendation of must be used to meet the cost of out of care, supervision, and responsibilities alternative resources for treatment; and home care authorized and arranged by placed with the social services program; (iii) Provision of placement services the social services providers. (e) All Bureau and Tribal Agencies (c) The adoption placement or by the court order prior to and after guardianship meets the special needs of adjudication. must work on developing partnerships with state and local governments to the child(ren) as indicated in the home (4) Community services which are study; services involving other groups, increase accessibility to funding sources and develop IV–E agreements/contracts. (d) The social services worker has agencies, and facilities in the provided permanency planning community can include, but are not § 20.501 What are the rates of payment for services; limited to: foster care? (e) Adoption or guardianship has been (i) Responses to community needs for The state foster care rate in the state clearly shown to be in the best interest evaluating social conditions affecting in which the Indian child resides is the of the child(ren); the well-being of its citizens; foster care payment level, as provided (f) All other resources for adoption or (ii) Treatment of the identified by Title IV of the Social Security Act (49 long-term guardianship placement have conditions that are within the Stat. 620). been explored; and competence of social services; and (g) The child(ren)’s adoption or (iii) Maintenance of liaison with other § 20.502 Can Child Assistance funds be guardianship placement could not be community agencies for the purpose of used for placement of Indian children in completed without Bureau/tribal identifying available services for treatment centers? financial assistance. assistance in solving the social problems Child Assistance funds must be used of individuals, families, and children as a last resort for placements of Indian § 20.505 What is the payment standard for and facilitating the use of available children in specialized non-medical adoption and guardianship? community services by Indian persons care facilities licensed by tribe or state. The approved payment standard will who need them. These services may be purchased or not exceed the Bureau’s maximum (5) Documentation of all activities and contracted under the supervision of the adoption and guardianship payment services in case files. social services programs for children for standard which will be established by whom the resources are not available the Assistant Secretary—Indian Affairs Subpart EÐChild Assistance from the state, tribal, county, local, and 60 days after this rule is published in Federal agencies. The payment will only final. The payment standard will be § 20.500 What are the eligibility criteria for reviewed periodically to determine if Child Assistance? consist of room and board. Other services that may be needed, including revision is necessary. An Indian child meeting the mental health, education, and physical requirements established in § 20.300 can § 20.506 Can homemaker services be therapy must be assumed by the be considered eligible for child provided with Child Assistance? respective agency responsible for the assistance or services under this part, When other resources such as provision of the service. Prior to provided, that: Medicaid are not available, homemaker placement a written agreement must be (a) The child’s legally responsible services can be purchased or contracted signed between the various funding parent, custodian/guardian, or Indian and provided under the supervision of sources to identify the services that will court having jurisdiction requests such the social services program, e.g., for a be paid by each source and will require assistance, in writing, and indicates severely handicapped child whose care approval of the Area Director. they are unable to provide necessary places undue stress on the family and care and guidance for the child, or to § 20.503 Can Child Assistance funds be for whom resources are unavailable provide for the child’s special needs in used for Indian adoption subsidies or from the state, tribal, county, local, and his/her own home. A documented subsidized guardianships? other Federal agencies. Homemaking family assessment is required to Yes, Child Assistance funds can be services can be purchased on a short- determine whether parent(s)/custodian/ authorized to provide either adoption or term basis not to exceed three months. guardian(s) are able to care for their guardianship subsidies for a period not While housekeeping services are one child(ren); to exceed two years for each child portion of this service, homemaker (b) Relative caregivers must apply for involved. The funds must be used to services must focus on training and be denied TANF payments or other assist in the adoption or guardianship of household members in such skills as
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If necessary, protective needs child(ren) whose care places involved; services will be provided in undue stress on the family; or (j) Involuntary placements must be in collaboration with other service (c) Child(ren) whose care would accordance with Tribal Codes and providers; benefit from specialized training and authorized by a court of competent (h) The social services worker will supportive services provided to family jurisdiction. A family assessment must complete a yearly assessment of each members. be completed by a social services tribal or state certified/licensed foster worker within 30 days of placement; home as to how the home has fulfilled § 20.507 What services are provided jointly its function relative to the needs of the with the Child Assistance Program? (k) All placements require at a minimum one home visit per month by child(ren) placed in the home; (a) Social services provided for (i) An off-reservation family home or children in their own home aimed at the social services worker with the child(ren), documented in the file; and institution under contract must meet the strengthening the family’s ability to licensing standards of the state in which (l) A list of all prior placements, provide for and nurture their child(ren). it is located or tribally established including the names of the foster These supportive services can include, certifying/licensing standards; and social work-case management, parents and dates of placements. (j) The social services agency must counseling for parents and children, § 20.509 What are the requirements for make efforts to secure child support for group work, day care, and homemaker foster care? child(ren) in foster care, through a court services, when necessary; of competent jurisdiction. (b) Protection of Indian children from The social services worker will select abuse and neglect in coordination with substitute care, which meets the § 20.510 How is the court involved in law enforcement and courts; physical, behavioral, and emotional foster care placements? (c) Foster care or care other than in needs of the child(ren) who require such The court retains custody of the parental home. When temporary care, which is intended to be short-term child(ren) in placement and the care placement out of the home is necessary, in nature. The following requirements and supervision must be given to the a written case plan must be established must be met and documented in a case appropriate social services agency. Even within 30 days of placement and plan: though the court can issue any court reviewed within 60 days of placement (a) All foster homes must be certified/ order consistent with tribal law, the or as outlined in tribally established licensed by the tribe or other recognized courts do not have the authority to standards. The case plan must contain authority, as appropriate. Foster care require expenditure of Federal funds to a written agreement signed among the placements must be made through a pay for specifically prescribed or various funding sources to identify the court of competent jurisdiction to restrictive services or out-of-home services that will be paid by each source ensure Federal background checks are placements of children. Case plans must in those instances where the child completed as required by Pub. L. 101– be reviewed with the appropriate court requires services outside the authority 630, and training (optional for relative at least every six months and a of the Child Assistance program. placements) will be provided to the permanency hearing held within twelve foster family; months after a child enters foster care or § 20.508 What information is required in (b) Relative placements must have on according to established tribal the foster care case file? file an approved current home study; standards. These standards can be At a minimum the following (c) The social services worker must established in the tribal code and can be information is required: discuss with foster parents or caretakers, in accordance with available funding (a) Tribal enrollment verification in the child(ren)’s special needs, including source requirements. accordance with § 20.100; disabilities, and provide counseling or (b) A written case plan must be § 20.511 Should permanency plans be referral to available resources; developed? established within 30 days of (d) Any child(ren) requiring medical, Permanency planning must be placement, which includes the need for substance abuse, and/or behavioral considered for child(ren) whose parents and expected length of placement; (mental) health services will be referred (c) Information on the child(ren)’s have not made reasonable efforts to to appropriate health-services agencies health status and school records, meet case plan goals or have not had for assessment and provision of including medications and any contact with the child(ren) in foster services; immunization records; care or substitute placement and must (d) Parental consents for emergency (e) Provision must be made for all be developed six months after initial medical care, school, and necessary costs of care, which includes placement of the child. Every effort will transportation; clothing, incidentals, and personal be made to preserve the family and/or (e) A signed plan for payment, allowance, in accordance with reunify the children with the family and including financial responsibility of established state standards of payments; relatives when developing permanency parents and use of other appropriate (f) A foster family agreement will be plans. resources; developed establishing roles and (f) A copy of the certification/license responsibilities of the biological parents, § 20.512 Can the Bureau/tribal contractors of the foster home; foster parents, placing agency, the terms make Indian adoptive placements? (g) A current photo of the child(ren); of payment of care and the need for The Bureau is not an authorized (h) A copy of the social security card, adherence to the established case plan. adoption agency, and staff must not birth certificate, Medicaid card and The agreement will be signed and dated arrange adoptive placements. However, current court order; by the parties involved; long term permanency planning can
VerDate 26-APR-99 15:19 May 05, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.XXX pfrm03 PsN: 06MYP1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24307 involve the Bureau social services (b) All applications must be in written (4) Include the address of the local workers cooperating with Tribal Courts form to the Superintendent or his/her Superintendent or his/her designated to provide adoption subsidy. Tribal designated representative. representative to whom the request for contractors will provide adoption a hearing must be submitted; and services, as authorized by the tribal § 20.601 From whom is eligibility (5) Advise the applicant or recipient information collected? courts in accordance with tribal codes/ that failure to request a hearing within law. (a) Each applicant is the primary 20 days of the date of the notice will source of information used to determine cause the decision to become final and § 20.513 Should Interstate Compacts be eligibility and need. If it is necessary to subject to appeal under Part 2 of 25 used for the placement of children? secure information such as medical CFR. Interstate compact agreements must records, from other sources, the (b) Upon receipt of the timely appeal, be used whenever possible for foster applicant must authorize the release of the financial assistance will remain care, adoption and guardianship to information. unchanged and will continue to be assure the availability of the funding (b) Recipients must accurately report provided, pending the issuance of a resources and services from the any changes in circumstances which written decision by the Superintendent originating placement source. may affect their eligibility or the amount or his/her designated representative. § 20.514 What assistance can the courts of financial assistance they receive. § 20.604 How is an incorrect payment request from social services on behalf of Recipients must report changes in adjusted or recovered? children? circumstance within 30 days. (a) When an incorrect payment of The courts can request the following: § 20.602 How is an application approved financial assistance has been made to an (a) Investigations of law enforcement or denied? reports of child abuse and neglect; individual or family, a proper (b) Assessment of the need for out of (a) Each application must be approved adjustment or recovery is required. home placement of the child(ren); and if the applicant meets the eligibility (b) The proper adjustment or recovery (c) Provision of court-related services criteria in §§ 20.301 through 20.516 for is based upon individual need as following adjudication, such as the type of assistance requested. appropriate to the circumstances that monitoring, foster care, or pre/post Financial assistance will be made back resulted in an incorrect payment. placement services. to the date of application. (c) Prior to adjustment or recovery, (b) An application must be denied if the recipient will be notified of the § 20.515 What is required for case the applicant does not meet the proposal to correct the payment and management? eligibility criteria set forth in §§ 20.301 given an informal opportunity to resolve Social Services staff are required to through 20.516. the matter. document regular contact with children (c) Action to approve or deny an (d) If an informal resolution cannot be and families in accordance with specific application must be made within 30 attained, the recipient must be given a program requirements. The social days of the date of the application. If written notice of decision. services agency is responsible for action cannot be taken within 30 days, (e) If a hearing is requested, the implementation of quality case the applicant must be notified in writing hearing will be conducted in accordance management; this requires the of the reasons why the decision cannot with the procedures under §§ 20.700 supervisor’s review of case plans every be made. The local social services through 20.705. 90 days. worker must issue written notice of the § 20.605 What happens when applicants or § 20.516 How are child abuse and neglect approval or denial of each application recipients knowingly and willfully provide cases to be handled? within 45 days of the date of the false, fictitious, or fraudulent information? Reported child abuse and neglect application. Applicants or recipients who cases must be handled in accordance § 20.603 How is an applicant or recipient knowingly and willfully provide false with the Indian Child Protection and notified that benefits or services are fictitious, or fraudulent information are Family Violence Prevention Act of 1990, denied? subject to prosecution under 18 U.S.C. Pub. L. 101–630, 25 CFR Part 63, (a) Written notice of the denial of 1001, which carries a fine of not more Federal and/or state laws where benefits or services must be mailed or than $10,000 or imprisonment for not applicable, and tribal codes which hand delivered to the applicant or more than five years, or both. The social protect Indian children and victims of recipient. Any action that increases, services worker will prepare a written domestic violence. Child Protection decreases, suspends, or terminates report detailing the action considered to Teams must be developed in accordance financial assistance requires written be fraud and submit the report to the to Pub. L. 99–570. Those cases referred notice to the applicant or recipient 20 Superintendent or his/her designated by the state will be handled according days in advance of the effective date. representative for appropriate to the Indian Child Welfare Act, Pub. L. The notice must clearly and completely investigative action. 95–608, and 25 CFR Part 23. advise the applicant or recipient of the Subpart GÐHearings and Appeals Subpart FÐAdministrative Procedures legal right to contest any adverse decision under §§ 20.600 through § 20.700 Can an applicant or recipient § 20.600 How is an application for financial 20.605. The notice must: appeal the decision of a Bureau official? assistance or social services made? (1) State the action taken, the effective Yes. Any applicant or recipient who (a) Written or oral applications by or date, and the reason(s) for the decision; is dissatisfied with a Bureau decision on behalf of any individual or group (2) Inform the applicant or recipient concerning eligibility or receipt of will be accepted for financial assistance of the right to request a hearing if financial assistance under this part can or social services. Referrals will be dissatisfied with the decision; request a hearing before the accepted from relatives, interested (3) Advise the applicant or recipient Superintendent or his/her designated individuals, social services agencies, of the right to be represented by an representative. The request for a hearing law enforcement agencies, courts and authorized representative at no expense must be made within 20 days of the date others. to the Bureau; of the written notice of the decision as
VerDate 26-APR-99 15:19 May 05, 1999 Jkt 183247 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.XXX pfrm03 PsN: 06MYP1 24308 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules stated in § 20.603. The Superintendent (1) A written statement covering the (Attn: Notice No. 874). Copies of the or his/her designated representative can evidence relied upon and reasons for petition, the proposed regulations, the extend the 20 day period if good cause the decision, and appropriate maps, and any written is shown and documented in the record. (2) The applicant’s or recipient’s right comments received will be available for to appeal the Superintendent or his/her public inspection during normal § 20.701 Does an applicant or recipient designated representative’s decision business hours at the ATF Reading receive financial assistance while an appeal pursuant to Part 2 of 25 CFR and request is pending? Room, Office of Public Affairs and Bureau assistance in preparation of the Disclosure, Room 6480, 650 Yes. Financial assistance will be appeal. Massachusetts Avenue, NW, continued or reinstated to insure there Washington, DC., 20226. is no break in financial assistance until § 20.705 Can an applicant or recipient such time as the Superintendent or his/ appeal a tribal decision? FOR FURTHER INFORMATION CONTACT: her designated representative renders a Yes. The applicant or recipient must Jackie White, Regulations Division, decision. The Superintendent or his/her pursue the appeal process applicable to Bureau of Alcohol, Tobacco and designated representative can adjust the Pub. L. 93–638 contract, Pub. L. Firearms, 650 Massachusetts Avenue, payments or recover overpayments to 102–477 grant, or Pub. L. 103–413 self- NW, Washington DC., 20226, (202) 927– conform with his/her decision. governance annual funding agreement. 8145. If no appeal process exists, then the SUPPLEMENTARY INFORMATION: § 20.702 When is an appeal hearing applicant or recipient must pursue the scheduled? 1. Background on Viticultural Areas appeal through the appropriate tribal The Superintendent or his/her forum. What is ATF’s Authority To Establish a designated representative must set a Viticultural Area? date for the hearing within 10 days of Dated: April 30, 1999. the date of request for a hearing and give Kevin Gover, ATF published Treasury Decision written notice to the applicant or Assistant Secretary—Indian Affairs. ATF–53 (43 FR 37672, 54624) on recipient. [FR Doc. 99–11334 Filed 5–5–99; 8:45 am] August 23, 1978. This decision revised BILLING CODE 4310±02±P the regulations in 27 CFR Part 4, § 20.703 What must the written notice of Labeling and Advertising of Wine, to hearing include? allow the establishment of definitive The written notice of hearing must DEPARTMENT OF THE TREASURY viticultural areas. The regulations allow include: the name of an approved viticultural (a) The date, time and location of the Bureau of Alcohol, Tobacco and area to be used as an appellation of hearing; Firearms origin on wine labels and in wine (b) A statement of the facts and issues advertisements. On October 2, 1979, giving rise to the appeal; 27 CFR Part 9 ATF published Treasury Decision ATF– (c) The applicant’s or recipient’s right [Notice No. 874] 60 (44 FR 56692) which added 27 CFR to be heard in person, or to be Part 9, American Viticultural Areas, for represented by an authorized RIN 1512±AA07 the listing of approved American representative at no expense to the viticultural areas, the names of which Applegate Valley Viticultural Area Bureau; may be used as appellations of origin. (d) The applicant or recipient’s right (99R±112P) to present both oral and written What is the Definition of an American AGENCY: Bureau of Alcohol, Tobacco Viticultural Area? evidence during the hearing; and Firearms (ATF), Treasury. (e) The applicant’s or recipient’s right ACTION: Notice of proposed rulemaking. An American viticultural area is a to confront and cross-examine witnesses delimited grape-growing region at the hearing; SUMMARY: The Bureau of Alcohol, distinguishable by geographic features. (f) The applicant’s or recipient’s right Tobacco and Firearms (ATF) has The viticultural features such as soil, of one continuance of not more than 10 received a petition proposing to climate, elevation, topography, etc., days with respect to the date of hearing; establish a viticultural area within the distinguish it from surrounding areas. and State of Oregon to be known as (g) The applicant’s or recipient’s right ‘‘Applegate Valley.’’ The proposed What Is Required To Establish a to examine and copy, at a reasonable viticultural area is within Jackson and Viticultural Area? time before the hearing, his/her case Josephine Counties and entirely within Any interested person may petition record as it relates to the proposed the existing Rogue Valley viticultural ATF to establish a grape-growing region action being contested. area as described in 27 CFR 9.132. Mr. as a viticultural area. The petition § 20.704 Who conducts the hearing or Barnard E. Smith, President, The should include: appeal of a Bureau decision or action and Academy of Wine of Oregon Inc., • Evidence that the name of the what is the process? submitted the petition. Mr. Smith proposed viticultural area is locally (a) The Superintendent or his/her believes that ‘‘Applegate Valley’’ is a and/or nationally known as referring to designated representative conducts the widely known name for the petitioned the area specified in the petition; hearing in an informal but orderly area, that the area is well defined, and • Historical or current evidence that manner, records the hearing, and that the area is distinguished from other the boundaries of the viticultural area provides the applicant or recipient with areas by its soil and climate. are as specified in the petition; a transcript of the hearing upon request. DATES: Send your comments on or • Evidence relating to the (b) The Superintendent or his/her before July 6, 1999. geographical characteristics (climate, designated representative must render a ADDRESSES: Send written comments to: soil, elevation, physical features, etc.) written decision within 10 days of the Chief, Regulations Division, Bureau of which distinguish the viticultural completion of the hearing. The written Alcohol, Tobacco and Firearms, P.O. features of the proposed area from decision must include: Box 50221, Washington, DC 20091–0221 surrounding areas;
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• A description of the specific one of the warmest grape growing areas which are more ideal. The petitioner boundaries of the viticultural area, in western Oregon.’’ claims that while soil origin is an based on features which can be found important factor in determining What Boundary Evidence Has Been on United States Geological Survey differences between the proposed Provided? (U.S.G.S.) maps of the largest applicable ‘‘Applegate’’ and the larger Rogue scale; and Applegate Valley is surrounded by the Valley viticultural areas, its role is • A copy (or copies) of the Siskiyou Mountains. To the east and secondary to climate. appropriate U.S.G.S. map(s) with the south is the Rogue River National • Climate: The grape-growing region boundaries prominently marked. Forest. To the west is the Siskiyou around Cave Junction located in the National Forest. According to the Illinois Valley is about 70 miles closer 2. Applegate Valley Petition petitioner, these proposed boundaries to the Pacific Ocean than the grape- ATF has received a petition proposing have been identified by the U.S. Forest growing region around Medford located to establish a viticultural area within the Service in minute detail but do not in Bear Creek Valley. The Siskiyou State of Oregon to be known as show on published maps. The petitioner Mountains separate the valleys which ‘‘Applegate Valley.’’ The proposed states that these boundaries can be further accentuate climate differences viticultural area is within Jackson and closely approximated by straight-line among the valleys. The precipitation in Josephine Counties, and entirely within segments drawn between prominent the Illinois Valley at Cave Junction is the existing Rogue Valley viticultural physical features of the terrain, mostly 58.9 inches per year. The precipitation area described in 27 CFR 9.132. The mountaintops. Boundaries of national decreases to 31.1 inches, at Grants Pass, petition was submitted by Mr. Barnard forests were used where appropriate. in the northeast and to 25.2 inches at E. Smith, President, The Academy of What Evidence Relating to Geographical Applegate. In the Bear Creek Valley at Wine of Oregon Inc. Mr. Smith believes Features Has Been Provided? Medford, the precipitation decreases further to 18.3 inches per year. that ‘‘Applegate Valley’’ is a widely • Topography: The proposed According to the petitioner, the known name for the petitioned area. Mr. boundaries are within Jackson and average temperature in the Illinois Smith states that the area is well Josephine Valley during the growing season (April defined, and that the area is Counties in the State of Oregon. The to October) is 2.5 degrees lower than in distinguished from other areas by its proposed area is entirely within the the eastern valleys. The petitioner states soil and climate. existing Rogue Valley viticultural area. that, cumulatively this means that the According to the petitioner, the The Rogue Valley viticultural area has degree-days rise from 4971 degree-days Applegate Valley has been a grape- three distinct sub regions: Illinois in Cave Junction to 5602 degree-days in growing region since 1870 when A. H. Valley, Applegate Valley, and Bear Grants Pass. This temperature data is Carson began planting 30 acres of grapes Creek Valley. The Illinois Valley lies to from a soil survey for Jackson and along North Applegate Road. There are the west of the proposed boundaries and Josephine Counties and does not now six bonded wineries in the valley Bear Creek Valley lies directly to the compare with Winkler’s values since it as well as 23 vineyards. The petitioner east of the proposed boundaries. states that over 235 acres have been The Applegate Valley is is based on temperature of 40 degrees planted to grapes. approximately 50 miles long running Fahrenheit instead of 50 degrees from its origins near the California Fahrenheit. What Name Evidence Has Been According to the Oregon Winegrape Provided? border generally northwest to where it joins the Rogue River just west of Grants Grower’s Guide, ‘‘As one moves from According to the petitioner, the Pass. According to the petitioner, the west to east, or from the Illinois River Applegate River was named for one or surrounding Siskiyou Mountains are Valley including Selma to the Applegate more of the Applegate brothers who believed to have been created in the Valley and into the Rogue Valley, good explored the area in 1846. The U.S.G.S. Jurassic period by up-thrusts of the grape growing sites generally become map used to show the boundaries of the ocean floor as a plate forced its way warmer due to the lessening of the area (Medford, Oregon; California scale under the continental shelf. The marine air influence.’’ The Oregon 1:250,000) uses the name Applegate proposed boundaries are found on the Winegrape Grower’s Guide goes on to River and shows the town of Applegate U.S.G.S. map titled ‘‘Medford, Oregon; point out that earlier ripening varieties within the proposed ‘‘Applegate Valley’’ California’’ NK 10–5 scale 1:250,000 such as Pinot noir, Early Muscat, and viticultural area. The petitioner has (1955, revised 1976). Gewurztraminer, do well in the Illinois provided the following other references • Soil: The petitioner states that soil Valley. In contrast, the Applegate Valley as name evidence. types are generally granite in origin as with its Region II temperature range can • ‘‘The Wine Appellations of Oregon’’ opposed to the volcanic origin of the ripen Cabernet Sauvignon, Merlot, and map published by the Oregon Wine Cascade Mountains to the east. Most of Chardonnay two to three weeks earlier Marketing Coalition shows the the Applegate Valley vineyards are than is possible in the Illinois Valley. Applegate Valley and mentions it in its planted on stream terraces or alluvial 3. Public Participation notes. fans providing deep well-drained soils. • The Oxford Companion to Wine According to the petitioner, the leaching Who May Comment on This Notice? (first edition) mentions the Applegate of the more basic soil components found ATF requests comments from all Valley on page 693. in the Illinois Valley have left the soil interested persons. In addition, ATF • The Oregon Winegrape Growers’ slightly more acidic than the soils in the specifically requests comments on the Guide devotes several paragraphs to a proposed boundaries. The petitioner clarity of this proposed rule and how it discussion of the Applegate Valley as further states that the soils outside the may be made easier to understand. one of Oregon’s grape growing areas. proposed boundaries to the east near Comments received on or before the • Treasury decision ATF–310 (The Bear Creek Valley tend to be less acidic closing date will be carefully Rogue Valley Viticultural Area) than the soils in the proposed considered. Comments received after describes ‘‘the Applegate Valley (within boundaries. The soils in the Applegate that date will be given the same the Rogue Valley viticultural area) as Valley have a pH between 6.1 and 6.5 consideration if it is practical to do so.
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However, assurance of consideration 4. Regulatory Analyses and Notices Subpart CÐApproved American can only be given to comments received Viticultural Areas on or before the closing date. Does the Paperwork Reduction Act Apply to This Proposed Rule? Par. 2. Subpart C is amended by Will ATF Keep My Comments adding § 9.165 to read as follows: The provisions of the Paperwork Confidential? * * * * * Reduction Act of 1995 44 U.S.C. ATF cannot recognize any material in Chapter 35, and its implementing § 9.165 Applegate Valley. comments as confidential. All regulations, 5 CFR Part 1320, do not (a) Name. The name of the viticultural comments and materials may be apply to this notice because no area described in this section is disclosed to the public. If you consider requirement to collect information is ‘‘Applegate Valley.’’ your material to be confidential or proposed. (b) Approved Maps. The appropriate inappropriate for disclosure to the map for determining the boundaries of public, you should not include it in the How Does the Regulatory Flexibility Act Apply to This Proposed Rule? the Applegate Valley viticultural area is comments. We may also disclose the one U.S.G.S. map titled ‘‘Medford, name of any person who submits a These proposed regulations will not Oregon; California’’ NK 10–5 scale comment. have a significant economic impact on 1:250,000 (1955, revised 1976). How do I Send Facsimile Comments? a substantial number of small entities. (c) Boundaries. The Applegate Valley The establishment of a viticultural area viticultural area is located within the You may submit comments of not is neither an endorsement nor approval State of Oregon within Jackson and more than three pages by facsimile by ATF of the quality of wine produced Josephine Counties, and entirely within transmission to (202) 927–8525. in the area, but rather an identification the existing Rogue Valley viticultural Facsimile comments must: of an area that is distinct from area. The boundaries are as follows: • Be legible. surrounding areas. ATF believes that the (1) Beginning at the confluence of the Applegate River with the Rogue River • Reference this notice number. establishment of viticultural areas merely allows wineries to more approximately 5 miles west of Grants • Be 81⁄2′′ x 11′′ in size. accurately describe the origin of their Pass, the boundary proceeds due west to • Contain a legible written signature. wines to consumers, and helps the boundary of the Siskiyou National • Be not more than three pages. consumers identify the wines they Forest north of Dutcher Creek; (2) Then southerly and westerly along We will not acknowledge receipt of purchase. Thus, any benefit derived from the use of a viticultural area name the boundary of the Siskiyou National facsimile transmissions. We will treat Forest to Highway 199; facsimile transmissions as originals. is the result of the proprietor’s own efforts and consumer acceptance of (3) Then easterly to the peak of How Do I Send Electronic Mail (E-mail) wines from that area. Roundtop Mountain (4663 feet); Comments? (4) Then easterly and southerly to the No new requirements are proposed. peak of Mungers Butte; You may submit comments by e-mail Accordingly, a regulatory flexibility (5) Then southerly and westerly to by sending the comments to analysis is not required. Holcomb Peak; [email protected]. You (6) Then in a generally southeasterly Is This a Significant Regulatory Action must follow these instructions. E-mail direction along the eastern boundary of as Defined by Executive Order 12866? comments must: the Siskiyou National Forest until it • Contain your name, mailing It has been determined that this joins the northern boundary of the address, and e-mail address. proposed regulation is not a significant Rogue River National Forest; (7) Then easterly along the northern • Reference this notice number. regulatory action as defined by Executive Order 12866. Therefore, a boundary of the Rogue River National • Be legible when printed on not regulatory assessment is not required. forest to a point due south of the peak more than three pages 81⁄2′′ x 11′′ in of Bald Mountain; size. 5. Drafting Information (8) Then due north to the peak of Bald We will not acknowledge receipt of e- Mountain (5635 feet); mail. We will treat e-mail as originals. The principal author of this document (9) Then northerly and westerly to the is Jackie White, Coordinator, Bureau of lookout tower on Anderson Butte; How do I Send Comments to the ATF Alcohol, Tobacco, and Firearms. (10) Then northerly and westerly to Internet Web Site? List of Subjects in 27 CFR Part 9 the peak of an unnamed mountain with You may also submit comments using an elevation of 3181 feet; (11) Then northerly and westerly to the comment form provided with the Administrative practices and the peak of Timber Mountain; online copy of the proposed rule on the procedures, Consumer protection, Viticultural areas, and Wine. (12) Then westerly and southerly to ATF Internet web site at http:// the middle peak of Billy Mountain; www.atf.treas.gov./core/regulations/ Authority and Issuance (13) Then northerly and westerly rules.htm. through a series of five unnamed peaks Title 27, Code of Federal Regulations, Can I Request a Public Hearing? with elevations of approximately 3600, Part 9, American Viticultural Areas, is 4000, 3800, 3400, and 3800 feet, If you desire the opportunity to proposed to be amended as follows: respectively; comment orally at a public hearing on (14) Then northerly and easterly to PART 9ÐAMERICAN VITICULTURAL this proposed regulation, you must Grants Pass Peak; submit your request in writing to the AREAS (15) Then westerly to Jerome Prairie; Director within the 60-day comment (16) Then northwesterly to the period. The Director reserves the right to Paragraph 1. The authority citation confluence of the Applegate River and determine, in light of all circumstances, for part 9 continues to read as follows: the Rogue River and the point of the whether a public hearing will be held. Authority: 27 U.S.C. 205 beginning.
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Signed: April 29, 1999. DATES: You should submit your written (1) An advance notice of proposed John W. Magaw, comments early enough to ensure that rulemaking (ANPRM). Director. we receive them no later than July 1, (2) A notice of proposed rulemaking [FR Doc. 99–11366 Filed 5–5–99; 8:45 am] 1999. In addition, public meetings at (NPRM). BILLING CODE 4810±31±P which oral and written comments may (3) A final rule. be presented have been scheduled for What is an ANPRM? the dates and locations listed in DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION. An ANPRM tells the public that we ADDRESSES: Comments should refer to are considering an area for rulemaking Maritime Administration the docket number that appears at the and requests written comments on the top of this document. Written comments appropriate scope of the rulemaking or 46 CFR Part 356 may be submitted by mail to the Docket on specific topics. This ANPRM does not include the text of a potential [Docket No. MARAD±99±5609] Clerk, U.S. DOT Dockets, Room PL–401, Department of Transportation, 400 7th regulation. RIN 2133±AB38 St., S.W., Washington, DC 20590–0001 What is a NPRM? Eligibility of U.S.-Flag Vessels of 100 or by e-mail to John T. Marquez, Jr. at ‘‘[email protected]’’. All A NPRM proposes our specific Feet or Greater To Obtain Commercial regulatory changes for public comment Fisheries Documents comments will become part of this docket and will be available for and contains supporting information. It AGENCY: Maritime Administration, inspection and copying at the above generally includes proposed regulatory Department of Transportation. address between 10 am and 5 pm, E.T., text. ACTION: Advance notice of proposed Monday through Friday, except Federal What is a Final Rule? Holidays. An electronic version of this rulemaking. A final rule sets out new regulatory document is available on the World requirements and their effective date. A SUMMARY: The Maritime Administration Wide Web at http://dms.dot.gov. (MARAD, we, our, or us) is soliciting final rule will also identify issues raised FOR FURTHER INFORMATION CONTACT: John public comments on the new U.S. by commenters in response to the notice T. Marquez, Jr. of the Office of Chief citizenship requirements set forth in the of proposed rulemaking and give the Counsel. You may contact him by phone American Fisheries Act of 1998 (AFA), agency’s response. at (202) 366–5320, by fax at (202) 366– P.L. 105–277, for vessels of 100 7485, by e-mail at Who May File Comments? registered feet or greater. The AFA seeks ‘‘[email protected]’’, or you to raise the U.S. ownership and control Anyone may file written comments standards for U.S.-flag fishing vessels may send mail to John T. Marquez, Jr., about proposals made in any operating in U.S. waters, to eliminate Maritime Administration, Office of rulemaking document that requests exemptions for vessels that can not meet Chief Counsel, Room 7228, MAR–222, public comments, including any State current citizenship standards, and to 400 Seventh St., S.W., Washington, D.C. government agency, any political help phase out of operation many of the 20590–0001. subdivision of a State, and any largest fishing vessels. These statutory SUPPLEMENTARY INFORMATION: interested person invited by us to changes are intended to give U.S. Public Hearing Dates and Locations participate in the rulemaking process. interests a priority in the harvest of U.S. 1. May 18, 1999, 9:00 a.m. to 5:00 How do I Prepare and Submit fishery resources. We are required to Comments? promulgate final regulations by April 1, p.m.—South Auditorium, Jackson 2000, regarding the citizenship Federal Building, 915 Second Avenue, Your comments must be written and requirements for ownership and control Seattle, WA; in English. To ensure that your 2. May 20, 1999, 9:00 a.m. to 5:00 of vessels of 100 registered feet or more comments are correctly filed in the that have or are seeking a fishery p.m.—Assembly Room, Z.J. Loussac Docket, please include the docket endorsement to their documentation. Library, 3600 Denall St., Anchorage, number of this document in your The regulations will become effective on AK; comments. 3. June 9, 1999, 7:00 p.m. to 10:00 October 1, 2001. We encourage you to write your Section 203 of the AFA specifically p.m.—Holiday Inn—Logan Airport, 225 primary comments in a concise fashion. requires that the regulations: prohibit McClellan Highway, Boston, MA; However, you may attach necessary 4. June 17, 1999, 9:00 a.m. to 1:00 impermissible transfers of ownership or additional documents to your p.m.—Suite 1830, Crescent City Room, control; identify transactions that will comments. There is no limit on the World Trade Center, 2 Canal Street, require prior MARAD approval; and length of the attachments. Please submit New Orleans, LA; and identify transactions that will not two copies of your comments, including 5. June 23, 1999, 9:00 a.m. to 1:00 require prior MARAD approval. To the the attachments, to Docket Management p.m.—Room 6200, Nassif Building, 400 extent practicable, the regulations are at the address given above under 7th Street S.W., Washington, D.C. required to minimize disruptions to the ADDRESSES. If possible, one copy should commercial fishing industry, to the Comments be in an unbound format to facilitate traditional financing arrangements of copying and electronic filing. How Will We Issue Rules To Implement such industry, and to the formation of The AFA? How can I be Sure that My Comments fishery cooperatives. We are seeking public comments We will be using informal rulemaking Were Received? related to our implementation of the procedures under the Administrative If you wish Docket Management to AFA. Your comment is welcome on the Procedure Act (5 U.S.C. 553) to notify you upon its receipt of your questions included in this ANPRM promulgate regulations implementing comments, enclose a self-addressed, following the section ‘‘What information the AFA. The process of promulgating stamped postcard in the envelope are we requesting?’’ or on any aspect of these regulations will include the containing your comments. Upon our implementation of the AFA. issuance of the following documents: receiving your comments, Docket
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Management will return the postcard by business information, to the Chief Please note that even after the mail. If you send comments by e-mail, Counsel, Maritime Administration, at comment closing date, we will continue you will receive a message by e-mail the address given above under FOR to file relevant information in the confirming receipt of your comments. FURTHER INFORMATION CONTACT. You Docket as it becomes available. Your e-mail address should be noted should mark ‘‘CONFIDENTIAL’’ on each Accordingly, we recommend that you with your comments. page of the original document that you periodically check the Docket for new What Takes Place at a Public Meeting? would like to keep confidential. material. In addition, you should submit two Background We have scheduled public meetings copies, from which you have deleted the in five cities during the sixty day claimed confidential business What are the New Requirements for a comment period to this ANPRM. information, to Docket Management at Fishery Endorsement Under the Meeting locations and times are the address given above under American Fisheries Act (AFA)? DATES provided above under . A public ADDRESSES. When you send comments meeting is a nonadversarial, fact-finding Documentation of vessels under containing information claimed to be federal law is a type of national proceeding conducted by a MARAD confidential business information, you representative. Generally, public registration which, among other things, should also include a cover letter setting serves to establish a vessel’s eligibility meetings are announced in the Federal forth with specificity the basis for any Register. Interested persons are invited to engage in a specified trade such as such claim (for example, it is exempt the fisheries of the United States. This to attend and to present their views to from mandatory public disclosure under the agency on specific issues. There are is done through an endorsement on the the Freedom of Information Act, 5 no formal pleadings and no adverse vessel’s Certificate of Documentation. In U.S.C. 552; it is information collected by parties, and any regulation issued order to obtain a fishery endorsement officials of the United States in the afterward is not necessarily based for a documented vessel, the owner of course of their employment duties that exclusively on the record of the a vessel must comply with the is exempt from disclosure pursuant to meeting. A record of oral comments will requirements set out in sections 12102 18 U.S.C. 1905). be made at the public meeting; however, and 12108 of Title 46, United States commenters are also requested to We will decide whether or not to treat Code. provide their comments to us in writing your information as confidential. You The AFA was passed as part of the at the meeting. A copy of all written and will be notified in writing of our Omnibus and Emergency oral comments made at the public decision to grant or deny confidentiality Appropriations Act for FY 1999, PL meeting will be filed in the docket. before the information is publicly 105–277, on October 6, 1998. The AFA Sections 556 and 557 of the disclosed and will be given an imposes a 75% U.S. citizen ownership Administrative Procedure Act (5 U.S.C. opportunity to respond. and control requirement for owners of 556 and 557) do not apply to public Will the Agency Consider Late vessels of 100 registered feet or more meetings under this part. Comments? who are engaging in the U.S. fisheries or wish to enter such trade. We are How can I Participate at a Public We will consider all comments that required to scrutinize transfers of Meeting? Docket Management receives before the ownership and control of such vessels, If you would like to speak at one of close of business on the comment such as leases, charters, mortgages, the public meetings, you should notify closing date indicated above under financings, and other arrangements that John T. Marquez, Jr. at least five (5) DATES. To the extent possible, we will might convey impermissible control working days before the scheduled also consider comments that Docket over the management, sales, financing meeting. You may notify him by phone Management receives after that date. or other operation of a vessel or vessel at (202) 366–5320, by fax at (202) 366– How can I Read the Comments owning entity. This review will include 7485 or by e-mail at Submitted by Other People? the examination of debt instruments ‘‘[email protected]’’. Your which might convey impermissible notification should include your name, You may read the comments received control to a non-U.S. citizen and address, phone number, fax number, e- by Docket Management at the address determinations as to whether trustees mail address and the party that you given above under ADDRESSES. The who hold mortgages on vessels for the represent. If you plan to attend the hours of the Docket Room are indicated benefit of non-U.S. citizens are qualified public meeting in Washington, DC, you above in the same location. Comments under the criteria set forth in the AFA. must notify us in advance in order to be may also be viewed on the Internet. To We are seeking public comment in these admitted to the building. Only one oral read the comments on the Internet, take areas along with suggestions as to presentation per company or group the following steps: Go to the Docket whether the defined term for ‘‘control’’ should be presented. Management System (DMS) Web page of and ‘‘controlled’’ set forth in Section the Department of Transportation (http:/ 2(c) of the Shipping Act of 1916 (1916 Is Information that I Submit to MARAD /dms.dot.gov/). On that page, click on Act), 46 App. U.S.C. 802(c), should be Made Available to the Public? ‘‘search.’’ On the next page (http:// expanded to include other indications When you submit information to us as dms.dot.gov/search/), type in the four- of control. All comments will be part of this ANPRM, during any digit docket number shown at the considered in the preparation of a rulemaking proceeding, or for any other beginning of this document. Example: If rulemaking to implement the reason, we may make that information the docket number were ‘‘MARAD– requirements of the AFA applicable to publicly available unless you ask that 1999–1234,’’ you would type ‘‘1234.’’ MARAD. we keep the information confidential. If After typing the docket number, click on For vessels measuring 100 registered you wish to submit any information ‘‘search.’’ On the next page, which feet or greater, the owner is required by under a claim of confidentiality, you contains docket summary information subsection 203(c) of the AFA to file an should submit three copies of your for the docket you selected, click on the annual statement of citizenship with us complete submission, including the desired comments. You may download setting forth all elements of ownership information you claim to be confidential the comments. and control necessary to demonstrate
VerDate 26-APR-99 15:19 May 05, 1999 Jkt 183247 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.XXX pfrm03 PsN: 06MYP1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24313 compliance with the requirements of 46 citizenship of all stockholders owning determining the citizenship status of U.S.C. 12102(c). In implementing this of record or beneficially five percent entities either seeking a fishery section, we are directed to promulgate (5%) or more of the stock must be endorsement or renewing such regulations that follow, to the extent established. endorsement is as follows: practicable, the requirements of 46 CFR Old Standard Seventy-five per centum of the interest in Part 355, as in effect on September 25, a corporation shall not be deemed to be 1997, including the prescribed form of Prior to the passage of the AFA, owned by citizens of the United States (a) if citizenship affidavit. The regulations at owners of vessels engaged in the the title to 75 per centum of its stock is not 46 CFR Part 355 set forth MARAD’s fisheries of the United States were vested in such citizens free from any trust or requirements for determining required to meet the vessel fiduciary obligation in favor of any person citizenship under section 2 of the 1916 documentation requirements set forth at not a citizen of the United States; or (b) if 75 Act and can be summarized as follows: 46 U.S.C. 2102. These vessel per centum of the voting power in such • corporation is not vested in citizens of the The entity must be organized and documentation requirements and United States; or (c) if, through any contract existing under the laws of the United fishery endorsement requirements are or understanding, it is so arranged that more States. set forth below: than 25 per centum of the voting power in • The names and date and place of • an individual was required to be a such corporation may be exercised, directly birth of corporate officers and directors citizen of the United States; or indirectly, in behalf of any person who is must be disclosed, along with an • an association, trust, joint venture, not a citizen of the United States; or (d) if by affirmative statement that such officers or other entity was required to have any other means whatsoever control of any and directors are citizens of the United members all of which were citizens of interest in the corporation in excess of 25 per States by virtue of birth in the United the United States; centum is conferred upon or permitted to be States, naturalization, or as otherwise • a partnership was required to have exercised by any person who is not a citizen of the United States. authorized by law. The president or general partners that were citizens of the other chief executive officer, chairman United States and the controlling The citizenship requirements of of the board, and all officers authorized interest in the partnership was required section 2(c) apply at each tier of to act in the absence or disability of to be owned by citizens of the United ownership; therefore, any person or such persons must be U.S. citizens, and States; and entity whose interest is being relied no more of its directors than a minority • a corporation was required (1) to be upon to establish the required 75 of the number necessary to constitute a established under the laws of the United percent U.S. citizen ownership and quorum can be non-U.S. citizens. States; (2) to have a president or other control, including any parent For other types of entities, such as chief executive officer and chairman of corporation, partnership or other entity, limited liability companies, its board of directors who were citizens must also comply with the U.S. associations, etc., citizenship of the United States; and (3) to have no citizenship requirements of section 2(c). requirements are imposed on persons more noncitizen directors than a In addition, the AFA requires that the who have similar functions as officers minority of the number necessary to 75 percent citizenship requirement be and directors of a corporation. constitute a quorum. In addition, if a applied in the aggregate. A literal • There are two methods of corporation, seeking a fishery interpretation of the requirement to establishing that 75% of the stock of a endorsement, was owned by other apply the 75 percent citizenship corporation is owned by U.S. citizens. corporations, in whole or in part, the requirement both at each tier and ‘‘in They are: controlling interest in these the aggregate’’ would mean that a non- (1) Direct Proof. For corporations with corporations in the aggregate had to section 2 citizen could not have an thirty (30) or fewer stockholders, the owned by citizens of the United States. ownership or control interest of more name of each stockholder and the than 25 percent in a vessel or vessel New Ownership and Control number and percentage of shares of owning entity by any means. For Requirements stock held by that individual must be example, a non-section 2 citizen may given, along with a statement that he/ Subsection 202(a) of the AFA own up to 25 percent of the interest in she is a citizen of the United States by amended the vessel documentation the primary corporation that owns a virtue of birth in the United States, statute by increasing the U.S. citizen vessel with a fishery endorsement. naturalization, or as otherwise ownership and control requirement However, that same non-section 2 authorized by law. If the stockholder is from a majority (at least 51 percent) to participant would not be allowed to not a citizen of the United States, then at least 75 percent ownership and have any interest in a parent corporation the country of which he/she is a citizen control for all vessels, including fish or any other entities at any tier that may must be provided. tender vessels and floating processors, have an ownership interest in the 75 (2) ‘‘Fair Inference.’’ If the stock of the seeking a fishery endorsement or percent of the primary corporation corporation is publicly traded, U.S. renewal of such endorsement. The owned by section 2 citizens. citizenship can be established by using effective date of this new U.S. citizen The AFA also sets forth certain the addresses of the stockholders; i.e. ownership requirement is October 1, standards that will be applied by us in relying on corporate books and records 2001. determining ‘‘control’’ or ‘‘controlled’’ at least 95% of the stock must be held Subsection 202(a) also provides that, for purposes of section 12102(c) of title by persons having registered U.S. when considering whether a vessel 46, United States Code, and the addresses in order to ‘‘infer’’ that at least owner qualifies for a fishery language of section 2(c) of the 1916 Act. 75 percent (75%) of the stock is owned endorsement, the U.S. citizenship Specifically, the AFA states that the by U.S. citizens. This method of proof requirements of section 2(c) of the 1916 terms ‘‘control’’ or ‘‘controlled’’ shall of U.S. citizenship for corporations, Act apply to entities other than include: whose stock is publicly traded, dates corporations, such as limited liability • the right to direct the business of back to 1936 and is based on a court companies, partnerships, joint ventures, the entity which owns the vessel; case, Collier Advertising Service, Inc. v. and other types of entities. The statutory • the right to limit the actions of or Hudson River Day Line, 14 F. Supp. 335 language of section 2(c) of the 1916 Act, replace the chief executive officer, a (S.D.N.Y. 1936). In addition, the which we are to apply when majority of the board of directors, any
VerDate 26-APR-99 15:19 May 05, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.XXX pfrm03 PsN: 06MYP1 24314 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules general partner, or any person serving in The use of a section 2 citizen trustee Western Pacific Fishery Management a management capacity of the entity to hold the mortgage is one of long- Council; and (2) purse seine vessels which owns the vessel; or standing in the maritime industry and engaged in tuna fishing in the Pacific • the right to direct the transfer, resulted from a court case, Chemical Ocean outside the exclusive economic operation or manning of a vessel with a Bank New York Trust Company v. zone or pursuant to the South Pacific fishery endorsement. Steamship Westhampton, 358 F.2nd 574 Regional Fisheries Treaty. Fishery However, the terms ‘‘control’’ or (4th Cir. 1965). The court held that the endorsements issued by the Secretary ‘‘controlled’’ shall not include the right mortgage on the ship WESTHAMPTON, for these vessels would be valid only in to simply participate in the above although given to a section 2 citizen those specific fisheries and the vessels activities or the use by a mortgagee of trustee, was not entitled to preferred would not be eligible to receive a fishery loan covenants approved by the status because the bond which was endorsement to participate in other Secretary. Determining ‘‘control’’ often secured by the mortgage was an interest fisheries unless the owner complied involves the review and analysis of a in a vessel under section 37 of the 1916 with the 75 percent standard. specific set of facts in a given Act, and the issuance of the bond to a A new paragraph at 46 U.S.C. transaction and goes beyond the mere non-section 2 citizen holder had not 12102(c)(6) prevents new large fishing form of a transaction. For example, a been approved by MARAD. We have vessels from entering U.S. fisheries, non-section 2 citizen’s equity authority under sections 9 and 37 of the including former U.S.-flag fishing investment in an entity in excess of its 1916 Act to approve of certain transfers vessels that have reflagged in recent years to fish in waters outside the U.S. ownership interest might be deemed of interest in section 2 citizen-owned exclusive economic zone. Specifically, ‘‘control’’; a non-section 2 citizen’s vessels to non-section 2 citizens. Within it prohibits the issuance of fishery leading role in setting up a U.S. months of the court’s decision in endorsements to vessels greater than company for purposes of engaging in the Westhampton, the Congress enacted 165 feet in registered length, or of more U.S. fisheries might be an indication of legislation whereby the issuance, than 750 gross registered tons, or that control; interlocking corporate officers/ assignment or transfer to non-section 2 have an engine or engines capable of directors and shareholders between a citizens of notes, bonds, or other evidence of indebtedness, secured by a producing a total of more than 3,000 U.S. citizen entity and a non-section 2 mortgage on a U.S. vessel, was shaft horsepower. Two exceptions are citizen entity might be deemed acceptable so long as the trustee holding permitted: impermissible control; or passing the the mortgage had our approval. The so- (1) (i) the vessel had a valid fishery overall economic benefit from the called ‘‘Westhampton trustee’’ statute endorsement on September 25, 1997; transaction to non-U.S. citizens might was repealed by the Congress in 1996. (ii) the vessel is not placed under be deemed impermissible control. In However, the ‘‘Westhampton trustee’’ foreign registry after October 6, 1998, this ANPRM, we are seeking comments concept has been incorporated in the the date of the enactment of the AFA; on the elements of ‘‘control’’ that should AFA and will permit foreign financing and be considered in determining U.S. in the U.S. fishing industry. (iii) in the event the vessel’s fishery citizenship for purposes of qualifying The purpose of the trustee holding the endorsement is allowed to lapse or is for a fishery endorsement. mortgage is to prohibit the non-section invalidated after October 6, 1998, an Leasing and Chartering 2 citizen lender from exercising application for a new fishery prohibited types of control over the endorsement is submitted to the A very significant new standard vessel or its owner. Non-section 2 Secretary of Transportation (Secretary) imposed under 202(a)(3) of the AFA is citizen lenders may have certain rights within 15 business days; or that vessels with a fishery endorsement conveyed to them in loan documents (2) the owner of the vessel cannot be leased or chartered to an through negative financial loan demonstrates to the Secretary that a individual who is not a citizen of the covenants. However, use of such regional fishery management council United States or to an entity that is not covenants may require our approval and has recommended and the Secretary of eligible to own a vessel with a fishery such approval will be dependent upon Commerce has approved specific endorsement. If such vessels are whether elements of ‘‘control’’ over the measures after the date of the enactment chartered or leased to non-section 2 vessel owner or the vessel are being of the AFA to allow the vessel to be citizens, the fishery endorsement is transferred to the non-section 2 citizen used in fisheries under that council’s immediately invalid upon use as a lender. Pursuant to this ANPRM, we are authority. The regional councils have fishing vessel. interested in soliciting comments from the authority and are encouraged to Mortgages and Financing the public on what restrictions should submit for approval to the Secretary of be imposed on foreign lenders. For Commerce measures to prohibit vessels The AFA sets forth the eligibility example, should we give blanket that receive a fishery endorsement requirements for lenders who wish to approval for a trustee to operate a vessel under section 12102(c)(6) from receiving obtain a preferred mortgage as security temporarily without our consent for any permit that would allow the vessel for their loan. A lender will be eligible reasons related to safety, repairs, to participate in fisheries under their for a preferred mortgage if: (a) The drydocking or other circumstances? authority, so that a vessel cannot receive lender is in compliance with the U.S. a fishery endorsement through measures citizenship requirements needed for a Specific Vessels recommended by one council, then fishery endorsement; (b) the lender is a Subsection 202(a)(5) of the Act further enter the fisheries under the authority of state or federally chartered financial amends 46 U.S.C. 12102(c), by adding a another council. institution that complies with the new paragraph (5) that exempts the Subsection 203(g) of the AFA ‘‘controlling interest’’ requirements of following vessels from the 75 percent provides limited exemptions from the section 2(b) of the 1916 Act, including, standard, provided the owners of the new U.S.-control and ownership among other things, 51% U.S. citizen vessels continue to comply with the requirements in 46 U.S.C. 12102(c) for ownership and control; or (c) the lender fishery endorsement law in effect on the owners of five vessels (the uses a section 2 citizen trustee to hold October 1, 1998: (1) vessels engaged in EXCELLENCE, GOLDEN ALASKA, the mortgage. fisheries under the authority of the OCEAN PHOENIX, NORTHERN
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TRAVELER, and NORTHERN required pursuant to subsection vessel owner. We recognize that certain VOYAGER) under certain conditions. 210(e)(3) to submit such information to loan covenants are not indicative of The exemption applies only to the the Administrator of MARAD as the control by a non-citizen lender over a present owners, and the subsection not Administrator deems appropriate to section 2 citizen vessel owner as only requires all subsequent owners to allow the Administrator to determine previously discussed. However, we are comply with the 75 percent standard, whether such individual or entity has seeking input regarding the typical but requires even the present owners to exceeded either such percentage. The covenants found in loan documents comply if more than 50 percent of the Administrator shall make a finding as involving fishing vessels that may be interest owned and controlled in that soon as practicable upon such request unique from those found in other owner changes after October 1, 2001. and shall submit such finding to the commercial vessel financing The exemption also automatically North Pacific Council and the Secretary arrangements. terminates with respect to the of Commerce. 1. What are examples of conventional NORTHERN TRAVELER or NORTHERN covenants found in typical loan International Agreements VOYAGER if the vessel is used in a documents involving the financing of fishery other than one under the Subsection 213(g) of the AFA fishing vessels? jurisdiction of the New England or Mid- specifies that in the event the new U.S. 2. Are there mortgage covenants used Atlantic fishery management councils, ownership and control requirements or in traditional fishing vessel financing and automatically terminates with preferred mortgage requirements of arrangements concerning the use, respect to the EXCELLENCE, GOLDEN subtitle I of the Act are deemed to be operation, or control of the vessel, ALASKA, or OCEAN PHOENIX if the inconsistent with an existing whether actual or contingent, that could vessel is used to harvest fish. international agreement relating to be considered to give the lender or foreign investment with respect to a mortgagee control over the vessel, such Penalties specific owner or mortgagee on October as the ability to remove or replace the Subsection 203(e) of the AFA 1, 2001 of a vessel with a fishery master of the vessel? provides that the Secretary shall revoke endorsement, that the provision shall 3. Are there standard mortgage the fishery endorsement of any vessel not apply to that specific owner or covenants that we should approve of in subject to 46 U.S.C. 12102(c), as mortgagee with respect to that particular advance for use, such as the ability to amended by subtitle I of the AFA, vessel to the extent of the inconsistency. restrict the vessel owner from incurring whose owner does not meet the 75% Subsection (g) does not exempt any additional debt without the lender’s ownership requirement or otherwise subsequent owner or mortgagee of the approval, the ability to restrict the fails to comply with 46 U.S.C. 12102(c). vessel, and is therefore not an vessel owner from selling assets without Subsection 203(f) of the AFA expands exemption that ‘‘runs with the vessel.’’ the lender’s approval, etc? the penalties under 46 U.S.C. 12122 (a) In addition, the exemption in subsection 4. Are there mortgage covenants that and (b), and makes the owner of a (g) ceases to apply even to the owner on should require our approval on a case- documented vessel for which a fishery October 1, 2001 of the vessel if any by-case basis prior to use? endorsement has been issued liable to ownership interest in that owner is 5. Should loan agreements and other the United States Government for a civil transferred to or acquired by a foreign agreements between section 2 citizen penalty of up to $100,000 for each day individual or entity after October 1, owners of fishing vessels and foreign in which such vessel has engaged in 2001. lenders be permitted to take effect prior fishing within the exclusive economic to our approval? What Information are We Requesting? zone of the United States, if the owner 6. Foreign lenders may obtain or the representative or agent of the We are requesting comments, preferred mortgages on fishing vessels owner knowingly made a false suggestions and information relating to greater than l00 registered feet provided statement or representation with respect the changes in the statutory they use a trustee arrangement to the eligibility of the vessel under 46 requirements to obtain a fishery (commonly referred to as the U.S.C. 12102(c) in applying for, or endorsement for a documented vessel of ‘‘Westhampton Trustee’’). We have long- applying to renew, such fishery 100 feet or greater in registered length standing experience in connection with endorsement. This subsection increases and the regulations necessary to the Westhampton Trustee and, prior to the penalties for fishery endorsement implement those requirements. its elimination by Congress along with violations and is intended to discourage Comments are requested specifically on other requirements relating to willful noncompliance with the new the questions presented below and on mortgagees, we had regulations found at requirements. any other aspect that the commenter 46 CFR part 221 (1997) governing the believes would be helpful to us in use of Westhampton Trustees. The AFA Fishery Cooperatives drafting regulations to implement the revives the use of the Westhampton Generally, subsection 210(e)(1) of the AFA. Unless specifically stated Trustee for fishing vessels. Should we AFA prohibits any individual or entity otherwise, when used in the following adopt similar requirements under the from harvesting more than 17.5% of the questions the term ‘‘vessel’’ refers to AFA to those contained in our earlier pollock in the Bering Sea and Aleutian vessels of 100 registered feet or more regulations for trustees/mortgagees? Are Islands (BSAI) directed pollock fishery that have or are seeking a fishery there other requirements that should be to ensure competition. Subsection endorsement. added? 210(e)(2) directs the North Pacific Questions 7. To what extent are vessels financed Council to establish an excessive share by fish processors or through entities cap for the processing of pollock in the I. Financing and Mortgages other than traditional lending BSAI directed pollock fishery. At the We will be reviewing financing institutions? Do such financing request of the North Pacific Council or transactions involving non-section 2 arrangements contain covenants that the Secretary of Commerce, an lending institutions to determine differ from covenants used by individual who is believed to have whether covenants in these loan traditional lending institutions? exceeded the harvesting or processing documents convey, either directly or 8. Should we preclude an entity that caps in either 210(e) (1) or (2), may be indirectly, control over the vessel or has a contract for the purchase of all or
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The AFA requires that 75 percent believed to have exceeded the The AFA directs us to scrutinize of the interest in an entity that owns a harvesting or processing caps in either leases, charters, and similar vessel with a fishery endorsement be 210(e) (1) or (2), may be required arrangements for purposes of owned and controlled by section 2 pursuant to subsection 210(e)(3) to determining whether impermissible citizens at each tier and in the aggregate. submit such information to the control ‘‘over the management, sales, If the phrase ‘‘in the aggregate’’ is Administrator of MARAD as the financing, or other operations of an determined to preclude a non-section 2 Administrator deems appropriate to entity’’ is being conveyed to non-section citizen from having a combined interest allow the Administrator to determine 2 citizens. In addition, we are from its total participation at every tier whether such individual or entity has specifically required under the AFA to of more than 25%, what impact will that exceeded either percentage. Should we review contracts involving the purchase have on vessel owners, mortgagees, establish set procedures to address over extended periods of time of all, or lenders, managers, etc . . .? charges that a party has exceeded the substantially all, of the living marine excessive share cap or should findings III. Fishery Cooperatives resources harvested by a fishing vessel. be made on an ad hoc basis? 1. Are vessel management companies We are seeking information that will 3. What procedure should we have for frequently used in the U.S. fisheries? If help us to evaluate how fishery findings under the requirements of the so, what is their role; i.e., duties and cooperatives should be considered in AFA that the vessel owner does not responsibilities. the context of determining the U.S. qualify as a citizen for purposes of 2. What is the role and responsibility citizenship of vessel owners, especially obtaining a fishery endorsement? of a sales manager in the fishing the role of non-section 2 citizen 4. Are there any known conflicts or industry? Should a vessel be eligible for participants in fishery cooperatives. possible violation of international treaty a fishery endorsement if the sales Responses to the following questions agreements created by the imposition of manager is not a 75 percent owned and will assist in developing our the section 2(c) citizenship controlled U.S. citizen? regulations. requirements on owners of U.S. 3. What types of long-term contracts 1. Who can become a member of a documented vessels with a fishery for sale of all or a large portion of the fishery cooperative? How are fishery endorsement, trustees, and mortgagees? catch from a vessel are used in the cooperatives managed? Does a member 5. Are there any unique issues within fishing industry? Do such contracts have receive a ‘‘membership interest’’ in the the fishing industry or particular covenants that give the purchaser of the fishery cooperative and does each fisheries relating to the ownership, vessel’s catch control over the operation member have one vote or are there operation, management, control, of the vessel or the vessel’s owner? circumstances whereby a member might financing, or mortgaging of fishing 4. Should a section 2 citizen vessel have more than one vote on matters vessels of which we should be aware in owner be precluded from entering into requiring a vote by the members? promulgating rules to implement the an exclusive sales contract, providing 2. What role do shoreside processors AFA? for the sale of all or a significant portion play in fishery cooperatives? 6. What costs related to the of its catch, with a non-section 2 citizen 3. Should a non-section 2 citizen be implementation of the new citizenship entity? If allowed, should the terms of prohibited from becoming a member of and control requirements for vessels of these contracts be restricted in any way? a fishery cooperative? 100 feet or greater mandated by the AFA 5. We have consistently construed the 4. If a fishery cooperative enters into are likely to be incurred by vessel ability by a non-section 2 citizen to any agreement with non-section 2(c) owners, operators and managers, discipline, remove or replace the master citizens, should that agreement be lending institutions, mortgagees, and of a vessel as an indication of control subject to our approval prior to entering other participants in the fishing over the vessel, and the granting of such into the agreement or within thirty (30) industry? right to a non-section 2 citizen as days of entering into the agreement? prohibited. Are there unique 5. What types of regulatory Other Issues circumstances unknown to MARAD requirements related to the ownership This request for comments concerning which should be considered prior to and control of a vessel or vessel owning the desirability of rulemaking is not adopting a similar requirement for U.S. entity would impede or facilitate the limited to the foregoing. We are also documented vessels with a fishery ability of parties to enter into fishery seeking comments and/or suggestions endorsement? cooperatives? concerning other issues that should be 6. Should every contract or business addressed in regulations implementing arrangement that the vessel owner IV. General and Procedural the requirements of the AFA for which enters into with a non-section 2 citizen In addition to the questions set forth MARAD is responsible. require our prior approval? If not, what above, there are a number of areas in contracts or other business which input from the fishing industry Plain Language arrangements should? Should it matter would be beneficial in developing our This ANPRM is one of our first whether the business arrangement regulations. They are as follows: rulemaking documents to be published affects the operation of the vessel, or is 1. What regulatory requirements, under the new plain language it enough if it affects the overall within the framework of the AFA, requirements. We welcome any operation of the fishing business? should we adopt to protect the limited comments and suggestions on the use 7. Should section 2 citizen owners of fishery resources and ensure that and effectiveness of plain language such fishing vessels be required to qualified U.S. citizens primarily benefit? techniques in this document or other submit the contracts or business 2. Subsection 210(e)(2) of the AFA suggestions to improve our use of plain arrangements for advance approval prior directs the North Pacific Council to language in future rulemakings.
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Rulemaking Analysis and Notices fishing industry vessels; individuals and Paperwork Reduction Act Executive Order 12866 (Regulatory small businesses seeking to sell or We cannot yet estimate the paperwork Planning and Review) mortgage documented fishing industry burden which may result from any vessels; small businesses seeking to Any rule that is promulgated may be further rulemaking on this issue, but it document fishing industry vessels in the is expected that comments received on considered an economically significant future; and lending institutions regulatory action under section 3(f) of this advance notice of proposed engaging in fishing industry vessel E.O. 12866; therefore, this rule has been rulemaking will assist the agency in financing. reviewed by OMB. The rule also is estimating the potential paperwork considered significant under DOT At the present time, we cannot state burden, as required under the Policies and Procedures. We cannot that any further rulemaking in this area Paperwork Reduction Act (44 U.S.C. estimate at this time whether this will not have a significant economic 3501 et seq.). If you have comments on rulemaking will be economically impact on a substantial number of small the potential information collection significant because we have not entities. If you believe that this burden, please submit a comment (see published a specific proposal. A rulemaking will have a significant ADDRESSES) explaining your concerns. If preliminary regulatory evaluation will economic impact on your business, new recordkeeping requirements result from future proposed rulemaking, we be prepared that reflects the comments please submit a comment (see will submit those recordkeeping to this ANPRM. ADDRESSES) explaining in what way and requirements to the Office of Federalism to what degree this proposal will Management and Budget for review. economically affect your business. If We have analyzed this ANPRM in Unfunded Mandates Reform Act accordance with the principles and you think that your business qualifies as criteria contained in Executive Order a small entity, and that further This proposed rule does not impose 12612 and have determined that any rulemaking will have a significant unfunded mandates under the rule that might be subsequently economic impact on your business, Unfunded Mandates Reform Act of promulgated would not have sufficient please submit a comment explaining 1995. It does not result in costs of $100 federalism implications to warrant the why you think your business qualifies million or more to either State, local, or preparation of a Federalism Assessment. as a small entity and how this tribal governments, in the aggregate, or rulemaking may economically affect to the private sector, and is the least Regulatory Flexibility Act your business. In addition, we welcome burdensome alternative that achieves Prior to commencing further comments from anyone in the general the objectives of the rule. rulemaking, the Regulatory Flexibility public who believes that these International Trade Impact Assessment Act (5 U.S.C. 601 et seq.) requires us to regulations may impact small business consider whether our proposals will entities. The final rule that will result from have a significant impact on a number this rulemaking is not expected to of small entities. ‘‘Small entities’’ Environmental Impact Statement contain standards-related activities that include independently owned and create unnecessary obstacles to the Any rule that is subsequently operated small businesses that are not foreign commerce of the United States. promulgated is not expected to dominant in their field and that If you believe that this rulemaking will otherwise qualify as ‘‘small business significantly affect the environment; have international trade impacts, we concerns’’ under section 3 of the Small therefore, an Environmental Impact welcome your comments. Statement is not likely to be required Business Act (15 U.S.C. 632). By order of the Maritime Administrator. Any regulations developed pursuant under the National Environmental to this advance notice of proposed Policy Act of 1969. When regulations Dated: April 30, 1999. rulemaking may reasonably be expected are proposed, an appropriate Joel C. Richard, to affect the following small entities: determination will be available in the Secretary. small businesses and individual U.S. docket for inspection or copying where [FR Doc. 99–11259 Filed 5–5–99; 8:45 am] citizens currently owning documented indicated under ADDRESSES. BILLING CODE 4910±81±P
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Notices Federal Register Vol. 64, No. 87
Thursday, May 6, 1999
This section of the FEDERAL REGISTER Fish Strategy (INFISH) into the Forest ACTION: Notice of intent to prepare an contains documents other than rules or Plan, the issuance of an interim roadless environmental impact statement. proposed rules that are applicable to the policy for the agency, and the listing of public. Notices of hearings and investigations, bull trout under the Endangered Species SUMMARY: The USDA Forest Service will committee meetings, agency decisions and Act, the Forest expects to issue a revised prepare an environmental impact rulings, delegations of authority, filing of statement (EIS) for the proposed Little petitions and applications and agency DEIS in June 1999, and a FEIS in October 1999. Weiser Landscape Vegetation statements of organization and functions are Management Project, Council Ranger examples of documents appearing in this The agency gives notice of the full section. environmental analysis and decision District, Payette National Forest, Idaho. making process that is continuing on the The proposed action would harvest proposal so that interested and affected timber on 3,000 to 3,800 acres, construct DEPARTMENT OF AGRICULTURE people know how they may participate about 8 miles of new road, reconstruct and contribute to the final decision. The approximately 30 miles of system and Forest Service Forest conducted public scoping and non-system roads, obliterate 4.2 miles of addressed comments in the DEIS. The roads, close approximately 40 miles of Proposed Sloan-Kennally Timber Sale, Forest now invites additional comments existing non-system roads, treat fuels, Payette National Forest, Idaho on the scope of the analysis and the and plant conifer seedlings on 2,300 to 2,600 acres after harvest. The Forest AGENCY: Forest Service, USDA. issues to address in the revised DEIS. Service will develop a range of ACTION: Revised notice of intent to Public participation will be especially alternatives, including a no action prepare an environmental impact important at several points during the analysis, particularly during scoping of alternative, to address issues. statement. The agency invites public comments issues and during review of the revised on the scope of the analysis and issues SUMMARY: The Forest Service published DEIS. to be addressed in the draft a notice of intent to prepare an The scoping process includes: environmental impact statement (DEIS). environmental impact statement (EIS) 1. Identifying potential issues. In addition, the agency gives notice of for the proposed Sloan-Kennally Timber 2. Identifying issues to be analyzed in Sale in the Federal Register March 19, the full environmental analysis and detail. decision making process that is 1991, (Vol. 56, No. 53, p. 11541–11542). 3. Eliminating insignificant issues or The Forest Service then published a beginning on the proposal so that those covered by a relevant previous interested and affected people can know revised notice of intent in the Federal environmental analysis. Register September 23, 1994, (Vol. 59, how they may participate and 4. Determining potential cooperating No. 184, p. 48878) changing the dates contribute to the final decision. agencies and responsibilities. for release of the draft EIS (DEIS) and DATES: Comments must be received by Issues that were considered and final EIS (FEIS). The revised notice is June 18, 1999. analyzed in the DEIS were water hereby revised to show another change ADDRESSES: Submit written comments in the project schedule. In addition, the quality, soil productivity, wildlife habitat, roadless character and and suggestions to: Dautis Pearson, Payette National Forest is offering Team Leader, Council Ranger District, another scoping opportunity for wilderness potential, biodiversity, economics and socio-economics, fish Payette National Forest, P.O. Box 567, comments on the scope of analysis and Council, Idaho 83612. Fax (208) 253– issues to address in this revised DEIS. habitat, recreation, and visual quality. It is important to bring any new issues to 0109. DATES: Comments must be received by the attention of the Forest now so that FOR FURTHER INFORMATION CONTACT: June 7, 1999. they may be considered in the revised Questions about the proposed action ADDRESSES: Submit written scoping DEIS. should be directed to Dautis Pearson, comments to: Dan Anderson, Sloan- The Responsible Official is David F. phone (208) 253–4215. Kennally Timber Sale Team Leader, Alexander, Forest Supervisor, Payette SUPPLEMENTARY INFORMATION: The New Meadows Ranger District, Payette National Forest. Payette National Forest prepared an National Forest, P.O. Box J, New environmental assessment (EA) on this Dated: April 30, 1999. Meadows, Idaho 83654, Fax (208) 347– Little Weiser proposal in March 1997. 0309. Miera Crawford, The Forest Supervisor signed a Decision FOR FURTHER INFORMATION CONTACT: External Relations Branch Chief. Notice approving the project on Questions about the project should be [FR Doc. 99–11336 Filed 5–5–99; 8:45 am] December 23, 1997. In 1998, a lawsuit directed to Dan Anderson, phone (208) BILLING CODE 3410±11±M challenged this project, among others. In 347–0300. response to a settlement agreement SUPPLEMENTARY INFORMATION: Payette resolving the litigation, the Forest National Forest issued a DEIS on the DEPARTMENT OF AGRICULTURE Supervisor in February 1999, agreed to Sloan-Kennally Project in August 1994, withdraw the decision and prepare an Forest Service but because large fires burned on the environmental impact statement that Payette later that year and the priorities Proposed Little Weiser Landscape would update the analysis in the EA. of the Forest shifted to subsequent Vegetation Management Project, The Forest Supervisor will then issue a timber salvage efforts, the FEIS was Payette National Forest, Idaho new decision. never issued. Due to the elapsed time, The Payette National Forest Plan the incorporation of the Inland Native AGENCY: Forest Service, USDA. (1988) provides Forest-wide direction
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24319 for management of the land and these court rulings, it is very important would be properly classified to be kept resources of the Payette National Forest, that those interested in this proposed secret in the interest of foreign policy including this project area. The project action participate by the close of the 45- under the appropriate executive order (5 would be consistent with the Plan as day comment period so that substantive U.S.C. 552b.(c)(1)) or would disclose amended by the Inland Native Fish comments and objections are made information the premature disclosure of Strategy (INFISH) of 1995. available to the Forest Service at a time which would be likely to significantly Public participation will be important when the agency can meaningfully frustrate implementation of a proposed at several points during the analysis, consider them and respond to them in agency action. (5 U.S.C. 552b. (c)(9)(B)) particularly during scoping of issues the FEIS. In addition, part of the discussion will and review of the DEIS. The first To assist the Forest Service in relate solely to the internal personnel opportunity in the process is scoping. identifying and considering issues and organizational issues of the BBG or This notice begins the 30-day scoping raised by the proposed action, the International Broadcasting Bureau. period. comments on the DEIS should be as (5 U.S.C. 552b.(c)(2) and (6)) The scoping process includes: specific as possible. It is also helpful if 1. Identifying potential issues. comments refer to specific pages or CONTACT PERSON FOR MORE INFORMATION: 2. Identifying issues to be analyzed in chapters of the DEIS. Comments may Persons interested in obtaining more detail. also address the adequacy of the DEIS information should contact either 3. Eliminating insignificant issues or or the merits of the alternatives it Brenda Hardnett or John Lindburg at those covered by a relevant previous analyzes. Reviewers may wish to refer to (202) 401–3736. environmental analysis. the Council on Environmental Quality Dated: May 3, 1999. 4. Determining potential cooperating Regulations for implementing the John A. Lindburg, agencies and responsibilities. procedural provisions of the National Legal Counsel and Acting Executive Director. The Forest Service has consulted with Environmental Policy Act at 40 CFR the U.S. Fish and Wildlife Service, 1503.3 in addressing these points. [FR Doc. 99–11474 Filed 5–3–99; 5:08 pm] Department of Interior, on potential The Forest Service will respond to BILLING CODE 8230±01±M impacts to threatened and endangered comments received in the FEIS (40 CFR species. 1503.4). The responsible official will Preliminary issues include effects on consider the comments, responses, soils, water, fish, timber, vegetation, environmental consequences disclosed COMMISSION ON CIVIL RIGHTS wildlife, fire management, heritage in the FEIS, and applicable laws, resources, recreation, visual quality, and regulations, and policies in making the Agenda and Notice of Public Meeting socio-economics. final decision regarding this proposal. of the New Mexico Advisory The next major opportunity for public The responsible official will document Committee input is with the DEIS. The DEIS will the decision and reasons for it in the analyze a range of alternatives to the Record of Decision. That decision will Notice is hereby given, pursuant to proposed action, including the no- be subject to appeal under 36 CFR 215. the provisions of the rules and action alternative. The Forest expects to David F. Alexander, Forest Supervisor regulations of the U.S. Commission on file the DEIS with the Environmental of the Payette National Forest, is the Civil Rights, that a meeting of the New Protection Agency (EPA) for public responsible official for this EIS. Mexico Advisory Committee to the review in July 1999. EPA will then Commission will convene at 2:00 p.m. publish a notice of availability of the Dated: April 30, 1999. and adjourn at 4:00 p.m. on May 26, DEIS in the Federal Register. The Forest Miera Crawford, 1999, at the Double Tree Hotel, 201 Service invites public comments at that External Relations Branch Chief. Marquette, N.W., Albuquerque, New time. [FR Doc. 99–11337 Filed 5–5–99; 8:45 am] Mexico 87102. The purpose of the The comment period on the DEIS will BILLING CODE 3410±11±M meeting is to review current civil rights be 45 days from the date the EPA developments in the State and plan publishes the notice of availability in future activities. the Federal Register. BROADCASTING BOARD OF Persons desiring additional The Forest Service believes, at this GOVERNORS early stage, it is important to give information, or planning a presentation to the Committee, should contact Philip reviewers notice of several court rulings Sunshine Act Meeting related to public participation in the Montez, Director of the Western environmental review process. First, DATE AND TIME: May 11, 1999; 9:00 a.m. Regional Office, 213–894–3437 (TDD reviewers of any DEIS must structure PLACE: Cohen Building, Room 3321, 330 213–894–3435). Hearing-impaired their participation in the environmental Independence Ave., S.W., Washington, persons who will attend the meeting review of the proposal so that it is D.C. 20547. and require the services of a sign meaningful and alerts the agency to the CLOSED MEETING: The members of the language interpreter should contact the reviewer’s position and contentions. Broadcasting Board of Governors (BBG) Regional Office at least ten (10) working Vermont Yankee Nuclear Power Corp. v. will meet in closed session to review days before the scheduled date of the NRDC, 435 U.S. 519, 553 (1978). Also, and discuss a number of issues relating meeting. courts may waive or dismiss to U.S. Government-funded non- The meeting will be conducted environmental objections that could be military international broadcasting. pursuant to the provisions of the rules raised at the DEIS stage but that are not They will address internal procedural, and regulations of the Commission. raised until after completion of the final budgetary, and personnel issues, as well Dated at Washington, DC, 1999. environmental impact statement (FEIS). as sensitive foreign policy issues City of Angoon v. Hodel, 803 F.2d 1016, relating to potential options in the U.S. Carol-Lee Hurley, 1022 (9th Cir. 1986) and Wisconsin international broadcasting field. This Chief, Regional Programs Coordination Unit. Heritages, Inc. v. Harris, 490 F. Supp. meeting is closed because if open it [FR Doc. 99–11369 Filed 5–5–99; 8:45 am] 1334, 1338 (E.D. Wis. 1980). Because of likely would either disclose matters that BILLING CODE 6335±01±P
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DEPARTMENT OF COMMERCE against McNeil should, in order to storing, disposing of, forwarding, prevent evasion, also be made transporting, financing, or otherwise Bureau of Export Administration applicable to American Protection servicing in any way, any transaction Corporation. involving any item exported or to be Action Affecting Export Privileges; American Protection Corporation exported from the United Stats that is William F. McNeil and American responded to BXA’s notice on April 6, subject to the Regulations, or in any Protection Corporation; Order Denying 1998 by letter signed by McNeil. McNeil other activity subject to the Regulations; Permission to Related Persons To stated in the letter that he is the sole or Apply for or Use Export Licenses owner and only permanent employee of C. Benefiting in any way from any William F. McNeil, #5 Woodland Road, American Protection Corporation. transaction involving any item exported Pittsfield, Massachusetts 01201, and McNeil also stated that American to be exported from the United States American Protection Corporation, #5 Protection Corporation has not exported that is subject to the Regulations, or in Woodland Road, Pittsfield, Massachusetts any goods since the denial order against any other activity subject to the 01201, and with a mailing address at P.O. him was issued on November 3, 1997, Regulations. Box 4227, Pittsfield, Massachusetts 01202– and that it will not export any goods II. No person may, directly or 4227 until the denial order is lifted. This indirectly, do any of the following: On November 3, 1997, the Director, unsupported statement by McNeil is not A. Export or reexport to or on behalf Office of Exporter Services Bureau of sufficient, however, to ensure that of the denied persons any item subject Export Administration, U.S. Department American Protection Corporation will to the Regulations; of Commerce, issued an Order denying not be used to evade the order denying B. Take any action that facilitates the William F. McNeil’s (McNeil) export McNeil’s export privileges. McNeil still acquisition or attempted acquisition by privileges until August 8, 2001 (62 FR is sole owner of American Protection the denied persons of the ownership, 61269, November 17, 1997). The Order Corporation, and absent a related person possession, or control of any item was based on McNeil August 8, 1996 order, he could easily use American subject to the Regulations that has been conviction for violating the Protection Corporation to export to his or will be exported from the United International Emergency Economic benefit, thereby evading the terms of the States, including financing or other Powers Act (currently codified at 50 order against him. support activities related to transaction U.S.C.A. 1701–1706 (1991 & Supp. Therefore, I hereby find that whereby the denied persons acquire or 1998)) (IEEPA), and was issued American Protection Corporation is attempt to acquire such ownership, pursuant to Section 11(h) of the Export related to William F. McNeil, a person possession or control; Administration Act of 1979, as amended denied all U.S. export privileges until C. Take any action to acquire from or (currently codified at 50 U.S.C.A. app. August 8, 2001, through ownership, to facilitate the acquisition or attempted 2401–2490 (1991 & Supp. 1998)) (the control, position of responsibility, acquisition from the denied persons of 1 Act), and Sections 766.25 and 750.8(a) affiliation, or other connection in the any item subject to the Regulations that of the Export Administration conduct of trade or business, and that, has been exported from the United Regulations (15 CFR parts 730–774) in order to prevent evasion, the denial States; (1998)) (the Regulations). Section order against McNeil issued on D. Obtain from the denied persons in 11(h)(2) of the Act provides that any November 3, 1997, should also be made the United States any item subject to the person related, through affiliation, applicable to American Protection Regulations with knowledge or reason ownership, control, or position of Corporation. to know that the item will be, or is responsibility, to a person who has been Accordingly, the Order of November intended to be, exported from the denied export privileges as a result of a 3, 1997, denying McNeil permission to United States; or conviction for violating IEEPA, may, at apply for or use any export license, E. Engage in any transaction to service the discretion of the Secretary of including any License Exception, is any item subject to the Regulations that 2 Commerce, be denied export privileges hereby amended to read as follows: has been or will be exported from the as well. It is ordered: United States and that is owned, On March 31, 1998, American I. Until August 8, 2001, William F. possessed or controlled by the denied Protection Corporation was notified, McNeil, #5 Woodland Road, Pittsfield, persons, or service any item, of pursuant to Section 766.23 of the Massachusetts 01201, and American whatever origin, that is owned, Regulations, that the Bureau of Export Protection Corporation, #5 Woodland possessed or controlled by the denied Administration, U.S. Department of Road, Pittsfield, Massachusetts 01201, persons if such service involves the use Commerce, has reason to believe that it and with a mailing address at P.O. Box of any item subject to the Regulations is related to William McNeil through 4227, Pittsfield, Massachusetts 01202– that has been or will be exported from ownership, control, position of 4227, may not, directly or indirectly, the United States. For purposes of this responsibility, affiliation, or other participate in any way, in any paragraph, servicing means installation, connection in the conduct of trade or transaction involving any commodity, maintenance, repair, modification or business, and that the order issued software or technology (hereinafter testing. collectively referred to as ‘‘item’’) III. After notice and opportunity for 1 The Act expired on August 20, 1994. Executive Order 12924 (3 CFR, 1994 Comp. 917 (1995)), exported or to be exported from the comment as provided in Section 766.23 extended by Presidential Notices of August 15, 1995 United States, that is subject to the of the Regulations, any person, firm, (3 CFR, 1995 Comp. 501 (1996)), August 14, 1996 Regulations, or in any other activity corporation, or business organization (3 CFR, 1996 Comp. 298 (1997)), August 13, 1997 subject to the Regulations, including, related to McNeil or to American (3 CFR, 1997 Comp. 306 (1998)) and August 13, 1998 (63 FR 44121, August 17, 1998), continued the but not limited to: Protection Corporation by affiliation, Export Administration Regulations in effect under A. Applying for, obtaining, or using ownership, control or position of IEEPA. any license, License Exception, or responsibility in the conduct of trade or 2 Pursuant to appropriate delegations of authority, export control document; related services may also be subject to the Director, Office of Exporter Services, in B. Carrying on negotiations consultation with the Director, Office of Export the provisions of this Order. Enforcement, exercises the authority granted to the concerning, or ordering, buying, IV. This Order does not prohibit any Secretary by Section 11(h) of the Act. receiving, using, selling, delivering, export, reexport, or other transaction
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24321 subject to the Regulations where the A limited number of seats will be SUMMARY: The Department of Commerce only items involved that are subject to available for the open session. (the Department) is extending the time the Regulations are the foreign- Reservations are not required. To the limit of the final determinations of the produced direct product of U.S.-origin extent that time permits, members of the antidumping and countervailing duty technology. public may present oral statements to investigations of hot-rolled flat-rolled V. This Order is effective immediately the Committee. The public may submit carbon-quality steel from Brazil. and shall remain in effect until August written statements at any time before or EFFECTIVE DATE: May 6, 1999. 8, 2001. after the meeting. However, to facilitate FOR FURTHER INFORMATION CONTACT: VI. A copy of this Order shall be the distribution of public presentation Linda Ludwig, Office of AD/CVD delivered to McNeil and to American materials to the Committee members, Enforcement, Group III, or Chris Cassell, Protection Corporation. This Order shall the Committee suggests that presenters Office of AD/CVD Enforcement Group be published in the Federal Register. forward the public presentation II, Import Administration, International Dated: April 27, 1999. materials prior to the meeting to the Trade Administration, U.S. Department Eileen M. Albanese, following address: Ms. Lee Ann of Commerce, 14th Street and Director, Office of Exporter Services. Carpenter, BXA MS: 3876, 15th St. and Constitution Avenue, NW, Washington, Pennsylvania Ave., N.W., U.S. [FR Doc. 99–11416 Filed 5–5–99; 8:45 am] DC 20230; telephone (202) 482–3833 or Department of Commerce, Washington, (202) 482–4847, respectively. BILLING CODE 3510±DT±M D.C. 20230. The Assistant Secretary for The Applicable Statute DEPARTMENT OF COMMERCE Administration, with the concurrence of Unless otherwise indicated, all the delegate of the General Counsel, citations to the Tariff Act of 1930 (the Bureau of Export Administration formally determined on January 12, Act), as amended, are references to the 1999, pursuant to Section 10(d) of the provisions effective January 1, 1995, the Regulations and Procedures Technical Federal Advisory Committee Act, as effective date of the amendments made Advisory Committee; Notice of amended, that the series of meetings or to the Act by the Uruguay Round Partially Closed Meeting portions of meetings of the Committee Agreements Act (URAA). In addition, all and of any Subcommittees thereof, The Regulations and Procedures citations to the Department’s regulations dealing with the classified materials Technical Advisory Committee (RPTAC) are to the regulations at 19 CFR Part 351 listed in 5 U.S.C. 552b(c)(1) shall be will meet May 25, 1999, 9:00 a.m., (1998). exempt from the provisions relating to Room 3884, in the Herbert C. Hoover public meetings found in section Postponement of Final Determinations Building, 14th Street between 10(a)(1) and 10(a)(3) of the Federal and Extension of Provisional Measures Constitution and Pennsylvania Advisory Committee Act. The remaining Avenues, N.W., Washington, D.C. The Pursuant to Section 735(a)(2) of the series of meetings or portions thereof Committee advises the Office of the Tariff Act, on February 2, 1999, will be open to the public. Assistant Secretary for Export Companhia Siderurgica Nacional (CSN), A copy of the Notice of Determination Administration on implementation of Usinas Siderurgicas de Minas Gerais, to close meetings or portions of the Export Administration Regulations S.A., (USIMINAS), and Companhia meetings of the Committee is available (EAR) and provides for continuing Siderurgica Paulista (COSIPA) requested for public inspection and copying in the review to update the EAR as needed. that, in the event of affirmative Central Reference and Records preliminary determination, the Agenda Inspection Facility, Room 6020, U.S. Department extend the final Department of Commerce, Washington, Open Session determination in this case for the full D.C. For more information, call Lee Ann sixty days permitted by statute. On 1. Opening remarks by the Carpenter at (202) 482–2583. February 4, 1999, CSN, USIMINAS, and Chairperson. Dated: April 30, 1999. COSIPA also requested an extension of 2. Presentation of papers or comments Lee Ann Carpenter, the provisional measures (i.e., by the public. suspension of liquidation) period from 3. Update on pending regulatory Committee Liaison Officer. four to six months in accordance with revisions. [FR Doc. 99–11306 Filed 5–5–99; 8:45 am] the Department’s regulations (19 CFR 4. Update on policies under review. BILLING CODE 3510±33±M 5. Report on proposal to amend the § 351.210(e)(2)). On February 12, 1999, Export Administration Regulations the affirmative preliminary concerning the issue of ‘‘exporter of DEPARTMENT OF COMMERCE determination was signed. Therefore, on Record.’’ February 26, 1999, in accordance with 6. Discussion on encryption International Trade Administration 19 CFR § 351.210(e)(2)(ii), we postponed regulations. this final determination until no later 7. Discussion on regulations regarding [A±351±828); (C±351±829] than 105 days after the publication of the preliminary determinations in the high Performance Computers. Postponement of Final Determination 8. Update on implementation of Federal Register (see, Postponement of of Antidumping and Countervailing Final Determination of Antidumping Wassenaar Arrangement. Duty Investigations of Hot-Rolled Flat- 9. Discussion on compliance and and Countervailing Duty Investigations Rolled Carbon-Quality Steel From enforcement issues. of Hot-Rolled Flat-Rolled Carbon- Brazil Quality Steel from Brazil 64 FR 9474. Closed Session AGENCY: Import Administration, This notice serves to postpone this final 10. Discussion of matters properly International Trade Administration, determination for an additional 30 days classified under Executive Order 12958, Department of Commerce. (i.e., until no later than 135 days after dealing with the U.S. export control the date of publication of the ACTION: Notice of extension of time program and strategic criteria related preliminary determination) as originally limit. thereto. requested by the respondents.
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Suspension of liquidation will be the U.S. Customs Service to assess no Corporation (‘‘Longjing’’); (5) Qingdao extended accordingly. antidumping duties on entries from the Metals, Minerals & Machinery Import In addition, because the seven PRC exporters that cooperated in and Export Corporation (‘‘Qingdao’’); (6) countervailing duty investigation of hot- this review (including the one new Shanxi Machinery and Equipment rolled flat-rolled carbon-quality steel shipper reviewed), for which the Import Export Corporation (‘‘Shanxi’’); products from Brazil has been aligned importer-specific assessment rates are (7) Southwest Technical Import & with the concurrent antidumping duty zero or de minimis (i.e., less than 0.50 Export Corporation (‘‘Southwest’’); (8) investigation under section 705(a)(1) of percent), and to assess duties on entries Xianghe Zichen Casting Co., Ltd. the Act, the time limit for completion of from the other uncooperative reviewed (‘‘Xianghe’’); (9) Yantai Import & Export the final determination in the exporters at the PRC-wide rate. Corporation (‘‘Yantai’’); and (10) countervailing duty investigation will Interested parties are invited to Yenhere Corporation (‘‘Yenhere’’). The be the same date, July 6, 1999, as the comment on these preliminary results. petitioner also requested an final determination of the concurrent EFFECTIVE DATE: May 6, 1999. adminsistrative review of all other PRC antidumping duty investigation. FOR FURTHER INFORMATION CONTACT: producers and exporters of the subject This notice of postponement is Brian Smith or Barbara Wojcik- merchandise. published pursuant to 19 CFR Betancourt, Import Administration, On April 29, 1998, the excluded 351.210(g). International Trade Administration, exporters for which the petitioner Dated: April 28, 1999. U.S. Department of Commerce, 14th requested a review contended that the Richard W. Moreland, Street and Constitution Avenue, N.W., Department did not have the basis for Washington, D.C. 20230; telephone: conducting an administrative review of Acting Assistant Secretary for Import Administration. (202) 482–1766 or (202) 482–0629, them because they were excluded from respectively. the antidumping duty order on brake [FR Doc. 99–11285 Filed 5–5–99; 8:45 am] SUPPLEMENTARY INFORMATION: Unless rotors. BILLING CODE 3510±DS±P otherwise indicated, all citations to the On April 30, 1998, the Department Tariff Act of 1930, as amended (‘‘the received a timely request from Yantai DEPARTMENT OF COMMERCE Act’’), are references to the provisions Chen Fu Machinery Co., Ltd. (‘‘Chen effective January 1, 1995, the effective Fu’’), in accordance with section International Trade Administration date of the amendments made to the Act 751(a)(2)(B) of the Act and section by the Uruguay Round Agreements Act. 351.214(c) of the Department’s [A±570±846] In addition, unless otherwise indicated, regulations, for a new shipper review of this antidumping duty order. Brake Rotors From the People's all citations to the Department’s In its April 30, 1998, request for Republic of China: Preliminary Results regulations are to the regulations at 19 review, Chen Fu certified that id did not of New Shipper Review and CFR Part 351 (1998). export the subject merchandise to the Preliminary Results and Partial Background United States during the period covered Rescission of First Antidumping Duty On April 14, 1998, the petitioner 2 by the original LTFV investigation (the Administrative Review requested an administrative review ‘‘POI’’), and that is it not affiliated with AGENCY: Import Administration, pursuant to section 751(a)(1) of the Act any company which exported subject International Trade Administration, and section 351.213(b) of the merchandise to the United States during Department of Commerce. Department’s regulations for three the POI. Chen Fu also certified that its exporter/producer combinations 2 that SUMMARY: On May 29, 1998, the export activities are not controlled by received zero rates in the less-than-fair- Department of Commerce (‘‘the the central government of the PRC. value (‘‘LTFV’’) investigation and thus Department’’) published a notice of Pursuant to the Department’s were excluded from the antidumping initiation of an administrative review of regulations at 19 CFR 351.214(b)(2)(iv), duty order only with respect to subject the antidumping duty order on brake Chen Fu submitted documentation merchandise sold through the specified rotors from the People’s Republic of establishing the date on which the exporter/producer combinations, and China (‘‘PRC’’) covering the period merchandise was first entered for the following respondents in the LTFV October 10, 1996, through March 31, consumption in the United States, the investigation: (1) Hebei Metals and 1998. The Department is preliminarily volume of that shipment, and the date Minerals Import & Export Corporation rescinding this review in part with of the first sale to an unaffiliated (‘‘Hebei’’); (2) Jilin Provincial Machinery respect to respondents who had no customer in the United States. and Equipment Import & Export shipments of the subject merchandise In accordance with section Corporation (‘‘Jilin’’); (3) Shandong during the period of review (‘‘POR’’). 751(a)(2)(B) and 19 CFR 351.214(d), we Jiuyang Enterprise Corporation For those respondents that submitted initiated a new shipper review covering (‘‘Jiuyang’’); (4) Longjing Walking full responses to the antidumping Chen Fu (Brake Rotors from the People’s Tractor Foreign Trade Import & Export questionnaire and are entitled to a Republic of China: Initiation of New separate rate, we have preliminarily Shipper Antidumping Duty 1 The petitioner is the Coalition for the determined that U.S. sales have not Administrative Review (63 FR 28355, Preservation of American Brake Drum and Rotor May 22, 1998)). been made below normal value. For the Aftermarket Manufacturers. PRC non-market economy (‘‘NME’’) 2 The excluded exporters/producer combinations Also, on April 30, 1998, seven PRC 3 entity (i.e., PRC government-controlled are (1) China National Automobile Industry Import exporters requested an administrative companies, including PRC companies & Export Corporation (‘‘CAIEC’’) or Shandong review pursuant to section 751(a)(1) of Laizhou CAPCO Industry (‘‘Laizhou CAPCO’’)/ the Act and section 351.213(b) of the that did not respond to the antidumping Laizhou CAPCO; (2) Shenyang Honbase Machinery questionnaire), we are basing the Co., Ltd. (‘‘Shenyang Honbase’’) or Laizhou Luyuan Department’s regulations, all but one of preliminary results on ‘‘facts available.’’ Automobile fittings Co., Ltd. (‘‘Laizhou Luyuan’’)/ Shenyang Honbase or laizhou Luyuan; and (3) 3 The seven PRC exporters are (1) Beijing If these preliminary results are China National Machinery and Equipment Import & Xinchangyuan Automobile Fittings Co., Ltd. adopted in our final results of Export (Xinjiang) Co., Ltd. (‘‘Xinjinag’’)/Zibo Botai (‘‘Xinchangyuan’’); (2) Jilin; (3) Longjing; (4) administrative review, we will instruct Manufacturing Co., Ltd. (Zibo’’). Jiuyang; (5) Xianghe; (6) Yantai; and (7) Yenhere.
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24323 which (Xinchangyuan) were included in Memorandum’’) which stated that the during the POR, the exporters which the petitioner’s request. Department preliminarily found no received zero rates in the LTFV On May 11, 1998, Chen Fu agreed to evidence that POR shipments of investigation did not make shipments of waive time limits applicable to the new merchandise subject to order were made subject merchandise to the United shipper review and conduct the new by the exporters that are excluded with States during the POR. Specifically, we shipper review concurrently with the respect to certain exporter/producer preliminarily determined that during administrative review. On May 13, combinations. the POR, (1) neither CAIEC nor Laizhou 1998, Xinchangyuan withdrew its CAPCO exported brake rotors to the request for an administrative review. Scope of Review United States that were manufactured On May 22, 1998, the Department The products covered by this review by producers other than Laizhou initiated an administrative review are brake rotors made of gray cast iron, CAPCO; (2) neither Shenyang Honbase covering the exporters which received whether finished, semifinished, or nor Laizhou Luyuan exported brake zero rates in the LTFV investigation unfinished, ranging in diameter from 8 rotors to the United States that were (only with respect to their U.S. sales of to 16 inches (20.32 to 40.64 centimeters) manufactured by producers other than brake rotors produced by companies and in weight from 8 to 45 pounds (3.63 Shenyang Honbase or Laizhou Luyuan; other than those included in the to 20.41 kilograms). The size parameters and (3) Xinjiang did not export brake excluded exporter/producer (weight and dimension) of the brake rotors to the United States that were combinations) and the other producers rotors limit their use to the following manufactured by producers other than and exporters for which the petitioner types of motor vehicles: automobiles, Zibo (see memoranda dated March 2 requested a review (Initiation of all-terrain vehicles, vans and and 11, 1999, from the team to Louis Antidumping and Countervailing Duty recreational vehicles under ‘‘one ton Apple, Office Director). In order to make Administrative Reviews and Requests and a half,’’ and light trucks designated this determination, we first examined for Revocations in Part (63 FR 29370, as ‘‘one ton and a half.’’ POR subject merchandise shipment data 29371, May 29, 1998)). Finished brake rotors are those that furnished by the U.S. Customs Service. During June 1998, we issued our are ready for sale and installation We then requested the U.S. Customs questionnaire to the following entities: without any further operations. Semi- Service to examine the documentation (1) all companies listed in our initiation finished rotors are those on which the filed at the U.S. port for each entry notices; (2) the Ministry of Foreign surface is not entirely smooth, and have made by the exporters at issue to Trade and Economic Cooperation undergone some drilling. Unfinished determine the manufacturer of the (‘‘MOFTEC’’) for review of the PRC- rotors are those which have undergone merchandise. Based on the results of our wide rate; and (3) the Chinese Chamber some grinding or turning. query (see March 11, 1999, of Commerce of Importers and Exporters These brake rotors are for motor Memorandum), we are preliminarily of Machinery and Electronic Products vehicles, and do not contain in the rescinding this review with respect to (‘‘the China Chamber’’). casting a logo or any original equipment CAIEC, Laizhou CAPCO, Shenyang On July 24, 1998, the respondents and manufacturer (‘‘OEM’’) which produces Honbase, Laizhou Luyuan and Xinjiang. the petitioners submitted publicly vehicles sold in the United States (e.g, However, we intend to verify the U.S. available information (‘‘PAI’’) for use in General Motors, Ford, Chrysler, Honda, shipments of brake rotors made by these valuing the factors of production. On Toyota, Volvo). Brake rotors covered in companies before issuing a final July 31, 1998, the parties submitted this review are not certified be OEM decision with respect to these rebuttal comments on PAI. On August producers of vehicles sold in the United companies. 10, 1998, certain respondents (namely, States. The scope also includes Furthermore, we are rescinding this Chen Fu, Jilin, Longjing, Jiuyang composite brake rotors that are made of review with respect to Southwest, Xianghe, Yantai and Yenhere) submitted gray cast iron, which contain a steel which reported that it made no their responses to sections A, C and D plate, but otherwise meet the above shipments of subject merchandise of the antidumping questionnaire. In criteria. Excluded from the scope of the during this POR, based on the results of September 1998, we issued review are brake rotors made of gray our examination of shipment data supplemental questionnaires to the cast iron, whether finished, furnished by the U.S. Customs Service. respondents. In October 1998, we semifinished, or unfinished, with a Because the shipment data we examined received supplemental questionnaire diameter less than 8 inches or greater did not show U.S. entries of brake rotors responses from the respondents. than 16 inches (less than 20.32 during the POR from Southwest or its On November 10, 1998, the centimeters or greater than 40.64 affiliated PRC producer, we pursued no Department published in the Federal centimeters) and a weight less than 8 further this inquiry with the U.S. Register a notice of postponement of the pounds or greater than 45 pounds (less Customs Service. We are also rescinding preliminary results no later than April than 3.63 kilograms or greater than this review with respect to 30, 1999 (63 FR 63026). 20.41 kilograms). Xinchangyuan because it withdrew its On February 12, 1999, Jilin submitted Brake rotors are classifiable under request for review and no other corrections to its section C response in subheading 8708.39.5010 of the HTSUS. interested party requested a review of anticipation of verification. On March 2, Although the HTSUS subheading is this company. 1999, the Department issued a decision provided for convenience and customs Separate Rates memorandum which outlined the purposes, our written description of the Department’s reasons for conducting a scope of this review is dispositive. In proceedings involving NME review of the exporters rates of zero in countries, the Department begins with a the LTFV investigation with respect to Period of Review rebuttable presumption that all shipments of merchandise produced by The POR covers the period October companies within the country are manufacturers other than those in the 10, 1996, through March 31, 1998. subject to government control and thus respective excluded exporter/producer should be assessed a single antidumping combination. On March 11, 1999, the Rescission duty deposit rate. Of the seven Department issued another decision Pursuant to 19 CFR 351.213(d)(3), we respondents that submitted memorandum (‘‘March 11, 1999, have preliminarily determined that, questionnaire responses, one of the PRC
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24324 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices companies, Chen Fu, is wholly-owned Value: Furfuryl Alcohol from the Antidumping Duty New Shipper by private individuals. Another People’s Republic of China (‘‘Furfuryl Administrative Review, 62 FR 55215 respondent, Xianghe, is a joint venture Alcohol’’) 60 FR 22544 (May 8, 1995), (October 23, 1997). Consequently, we between Chinese and U.S. companies. and Preliminary Determination of Sales have preliminarily determined that each Another respondent, Yenhere, is a at Less Than Fair Value: Certain Partial- of these respondents has met the criteria limited liability corporation in the PRC. Extension Steel Drawer Slides with for the application of separate rates. The four other respondents are either Rollers from the People’s Republic of Hebei, Qingdao and Shanxi, named wholly owned by ‘‘all the people’’ (Jilin, China (‘‘Drawer Slides’’) 60 FR 29571 respondents in this review, did not Longjing, Yantai) or collectively owned (June 5, 1995). We have no new respond to the questionnaire issued in (Jiuyang). Thus, for all seven of these information in this proceeding which this review. Hebei, Qingdao and Shanxi respondents, a separate rates analysis is would cause us to reconsider this also did not submit information which necessary to determine whether the determination with regard to the seven demonstrated a de jure and de facto exporters are independent from respondents mentioned above. absence of government control with government control (see Notice of Final respect to each company’s export 2. De Facto Control Determination of Sales at Less Than functions. Therefore, we have Fair Value: Bicycles From the People’s As stated in previous cases, there is preliminarily determined that these Republic of China (‘‘Bicycles’’) 61 FR some evidence that certain enactments companies are not entitled to separate 56570 (April 30, 1996)). of the PRC central government have not rates in this review and will be To establish whether a firm is been implemented uniformly among considered to be part of the non- sufficiently independent from different sectors and/or jurisdictions in responding PRC NME entity. government control to be entitled to a the PRC. See Silicon Carbide and Facts Available separate rate, the Department analyzes Furfuryl Alcohol. Therefore, the each exporting entity under a test Department has determined that an Section 776(a)(1) of the Act mandates arising out of the Final Determination of analysis of de facto control is critical in that the Department use the facts Sales at Less Than Fair Value: Sparklers determining whether the respondents available if necessary information is not from the People’s Republic of China (56 are, in fact, subject to a degree of available on the record of an FR 20588, May 6, 1991) and amplified governmental control which would antidumping proceeding. In addition, in the Final Determination of Sales at preclude the Department from assigning section 776(a)(2) of the Act mandates Less Than Fair Value: Silicon Carbide separate rates. that the Department use the facts from the People’s Republic of China (59 The Department typically considers available where an interested party or FR 22585, May 2, 1994) (‘‘Silicon four factors in evaluating whether each any other person: (A) withholds Carbide’’). Under the separate rates respondent is subject to de facto information requested by the criteria, the Department assigns separate governmental control of its export Department; (B) fails to provide rates in NME cases only if the functions: (1) Whether the export prices requested information by the requested respondent can demonstrate the absence (‘‘EPs’’) are set by or subject to the date or in the form and manner of both de jure and de facto government approval of a governmental authority; requested; (C) significantly impedes an control over export activities. (2) whether the respondent has antidumping proceeding; or (D) authority to negotiate and sign contracts provides information that cannot be 1. De Jure Control and other agreements; (3) whether the verified. Each respondent has placed on the respondent has autonomy from the As indicated above, Hebei, Qingdao administrative record documents to government in making decisions and Shanxi failed to demonstrate that demonstrate absence of de jure control, regarding the selection of management; they are entitled to separate rates and including the ‘‘Law of the People’s and (4) whether the respondent retains therefore are presumed to be part of the Republic of China on Industrial the proceeds of its export sales and PRC entity. In response to our Enterprises Owned by the Whole makes independent decisions regarding antidumping questionnaire, MOFTEC, People,’’ adopted on April 13, 1988 disposition of profits or financing of on behalf of the PRC NME entity, (‘‘the Industrial Enterprises Law’’); ‘‘The losses (see Silicon Carbide and Furfuryl referred the Department to the China Enterprise Legal Person Registration Alcohol). Chamber (see letter from MOFTEC to Administrative Regulations,’’ Each of these seven respondents the Department, dated June 26, 1998). promulgated on June 13, 1988; the 1990 asserted the following: (1) it establishes The China Chamber provided no ‘‘Regulation Governing Rural its own EPs; (2) it negotiates contracts, response to our antidumping Collectively-Owned Enterprises of without guidance from any questionnaire, which it also received PRC;’’ the 1992 ‘‘Regulations for governmental entities or organizations; directly from the Department (see the Transformation of Operational (3) it makes its own personnel Department’s cover letter and Mechanisms of State-Owned Industrial decisions; and (4) it retains the proceeds questionnaire to the China Chamber, Enterprises’’ (‘‘Business Operation of its export sales, uses profits according dated June 30, 1998). Thus, the PRC Provisions’’); and the 1994 ‘‘Foreign to its business needs, and has the NME entity provided no questionnaire Trade Law of the People’s Republic of authority to sell its assets and to obtain response. Therefore, in this case, the China.’’ loans. Additionally, the respondents’ PRC NME entity, including Hebei, As in prior cases, we have analyzed questionnaire responses indicate that Qingdao and Shanxi, failed to respond these laws and have found them to company-specific pricing during the to the Department’s questionnaire. establish sufficiently an absence of de POR does not suggest coordination Therefore, by failing to respond to the jure control of companies ‘‘owned by among exporters. This information Department’s questionnaire in this case, the whole people,’’ privately owned supports a preliminary finding that the PRC NME entity, including Hebei, enterprises, joint ventures, stock there is de facto absence of Qingdao and Shanxi, failed to cooperate companies including limited liability governmental control of the export to the best of its ability. Where the companies, and collectively owned functions of these respondents. See Pure Department must base the entire enterprises. See, e.g., Final Magnesium from the People’s Republic dumping margin for a respondent in an Determination of Sales at Less than Fair of China: Preliminary Results of administrative review on the facts
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As adverse facts available, imports of We calculated EP based on packed, Accordingly, we calculated NV in subject merchandise from the PRC NME FOB foreign port prices to the first accordance with section 773(c) of the entity (including Hebei, Qingdao and unaffiliated purchaser in the United Act, which applies to NME countries. States. Where appropriate, we made Shanxi and other producers/exporters B. Surrogate Country who have not qualified for a separate deductions from the starting price (gross rate) will be subject to a PRC-wide rate unit price) for foreign inland freight and Section 773(c)(4) of the Act requires of 43.32 percent, which is based on the foreign brokerage and handling in the the Department to value the NME highest petition rate and which is the PRC, in accordance with section 772(c) producer’s factors of production, to the highest rate on the record of this of the Act. Because foreign inland extent possible, in one or more market proceeding. Because information from freight and foreign brokerage and economy countries that (1) are at a level the petition constitutes secondary handling fees were provided by NME of economic development comparable to information, section 776(c) provides service providers or paid for in an NME that of the NME country, and (2) are that the Department shall, to the extent currency, we based those charges on significant producers of comparable practicable, corroborate that secondary surrogate rates from India (see merchandise. We determined that India information from independent sources ‘‘Surrogate Country’’ section below). To is a country comparable to the PRC in reasonably at its disposal. The value foreign inland freight, we used the terms of overall economic development Statement of Administrative Action average 1994 truck freight rate (see Memorandum from the Office of Policy to Louis Apple, dated June 23, (‘‘SAA’’) (H. Doc. 316, 103d Cong., 2nd contained in the Indian periodical The 1998, which was included in the Sess. 870) provides that ‘‘corroborate’’ Times of India. We have used this same Department’s June 24, 1998, letter sent means that the Department will satisfy rate in numerous NME cases in which to each interested party in this itself that the secondary information to India has been selected as the primary proceeding). In addition, based on PAI be used has probative value. surrogate (see, e.g., Brake Rotors, 62 FR During our analysis of the petition in placed on the record, we have at 9163). To value foreign brokerage and the LTFV investigation, we reviewed all determined that India is a significant handling expenses, we relied on public of the data submitted and the producer of the subject merchandise. information reported in the assumptions that petitioners had made Accordingly, we considered India the when calculating estimated dumping antidumping investigation of stainless primary surrogate country for purposes margins. As a result of our analysis, we steel wire rod from India (see Brake of valuing the factors of production as recalculated the petition rate during the Rotors from the People’s Republic of the basis for NV because it meets the LTFV investigation to correct the China: Final Results of New Shipper Department’s criteria for surrogate petitioner’s methodology with respect to Antidumping Duty New Shipper country selection. Where we could not certain factor values. See Final Administrative Review (64 FR 9972, find surrogate values from India, we Determinations of Sales at Less Than 9974, March 1, 1999) (Brake Rotors New valued those factors using values from Fair Value: Brake Drums and Brake Shipper Review)). Indonesia. Rotors from the People’s Republic of 2. Yantai C. Factors of Production China, 62 FR 9160, 9162 (February 28, 1997) (‘‘Brake Rotors’’). Thus, because We calculated EP based on packed, In accordance with section 773(c) of we reviewed the petitioner’s CIF, CNF or FOB U.S. port prices to the the Act, we calculated NV based on the factors of production reported by the assumptions and calculations from first unaffiliated purchaser in the United companies in the PRC which produced which the petition rates were derived, States. Where appropriate, we made the subject merchandise for the and made appropriate corrections, we deductions from the starting price (gross had determined in the LTFV exporters which sold the subject unit price) for foreign inland freight and merchandise to the United States during investigation that the petition rates, as foreign brokerage and handling in the corrected, had probative value. We have the POR. To calculate NV, the reported PRC, marine insurance and unit factor quantities were multiplied by no new information that would warrant international freight, in accordance with reconsidering that decision. publicly available Indian or Indonesian section 772(c) of the Act. As all foreign values. Fair Value Comparisons inland freight and foreign brokerage and The selection of the surrogate values To determine whether sales of the handling fees were provided by NME applied in this determination was based subject merchandise by each respondent service providers or paid for in a NME on the quality, specificity, and to the United States were made at LTFV, currency, we valued these services contemporaneity of the data. As we compared the EP to the normal value using the Indian surrogate values appropriate, we adjusted input prices to (‘‘NV’’), as described in the ‘‘Export discussed above. For marine insurance, make them delivered prices. For those Price’’ and ‘‘Normal Value’’ sections of we used public information reported in values not contemporaneous with the this notice, below. the antidumping investigation of sulfur POR and quoted in a foreign currency, dyes, including sulfur vat dyes, from we adjusted for inflation using Export Price India. For ocean freight, we used wholesale price indices published in the We used EP methodology in Yantai’s reported expense because International Monetary Fund’s accordance with section 772(a) of the Yantai used market-economy freight International Financial Statistics. For a Act, because the subject merchandise carriers (see, e.g., Brake Rotors New complete analysis of surrogate values, was sold directly to unaffiliated Shipper Review, 64 FR at 9974). see the Preliminary Results Valuation
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Memorandum from the Team to the Limited (‘‘Jayaswals’’), Kalyani Brakes discussion of other adjustments made, File, dated April 30, 1999 (‘‘Preliminary Limited (‘‘Kalyani’’), Krishna see the Preliminary Results Valuation Results Valuation Memorandum’’). Engineering Works (‘‘Krishna’’), Nagpur, Memorandum. To value pig iron, we used domestic and Rico Auto Industries Limited All inputs were shipped by truck. price data in India from the April 1996– (‘‘Rico’’)). We did not use the financial Therefore, to value PRC inland freight, March 1997 financial report of Lamina reports of Lamina or Brakes India we used the April 1994 truck rate from Foundries (‘‘Lamina’’) and from the Limited in calculating the surrogate the Times of India. 1996 financial report of Nagpur Alloy percentages because we have no PAI In accordance with the decision of the Castings Ltd. (‘‘Nagpur’’). We removed which demonstrates that these two Court of Appeals for the Federal Circuit excise and sales taxes from the average companies are producers of the subject in Sigma Corp. v. United States, 117 F. pig iron value because the financial merchandise. Where appropriate, we 3d 1401 (1997), we revised our reports indicated that these taxes were removed from the surrogate overhead methodology for calculating source-to- included in the values. For steel scrap, and SG&A calculations the excise duty factory surrogate freight for those ferrosilicon, ferromanganese, lubrication amount listed in the financial reports material inputs that are valued based on oil and limestone, we used average (see Brake Rotors, 62 FR at 9164). We CIF import values in the surrogate values based on import statistics made certain adjustments to the country. Therefore, we have added to spanning from April 1996–July 1997 percentages calculated as a result of CIF surrogate values from India a from Monthly Statistics of the Foreign reclassifying expenses contained in the surrogate freight cost using the shorter Trade of India (‘‘Monthly Statistics’’). financial reports. For iron scrap, we used domestic price of the reported distances from either the In utilizing the financial data of the data from Lamina’s 1996–97 financial closest PRC port of importation to the Indian companies, we treated the line report and 1996–97 import price data factory, or from the domestic supplier to item labeled ‘‘stores and spares from Monthly Statistics. the factory on an import-specific basis. consumed’’ as part of factory overhead Certain types of rotors use steel sheet, To value adhesive tape, corrugated because stores and spares are not direct lug bolts and ball bearing cups. For steel cartons, nails, polyethylene material for materials consumed in the production sheet, we used October 1997 prices from bags, steel strap and steel strip, we used process. Based on PAI, we considered the Indian publication Statistics for Iron April 1996–July 1997 import values the molding materials (i.e., sand, and Steel Industry. For lug bolts, we from Monthly Statistics. To value pallet bentonite, coal powder, steel pellets, could not obtain a product-specific wood, we selected an April 1995–March lead powder, waste oil) to be indirect price from India (see Notice of Final 1996 import value from Monthly materials included in the stores and Determination of Sales at Less Than Statistics rather than other 1996–97 spares consumed category of the Fair Value: Bicycles from the People’s values on the record because the more financial statements. We based our Republic of China (61 FR 19026, April contemporaneous values appeared factory overhead calculation on the cost 30, 1996) (Comment 17)). Therefore, we aberrational relative to the overall value of goods manufactured rather than on used import data covering 1997 from the of the subject merchandise (see the cost of goods sold. We also included Indonesian government publication Preliminary Results Valuation interest and/or financial expenses in the Foreign Trade Statistical Bulletin. To Memorandum for further discussion). value ball bearing cups, we used April SG&A calculation. In addition, we only 1997–July 1997 import price data from reduced interest and financial expenses Currency Conversion by amounts for interest income if the Monthly Statistics. We made currency conversions For coking coal, we used an average Indian financial report noted that the pursuant to section 773A(a) of the Act of prices applicable during the fourth income was short-term in nature. Where and section 351.415 of the Department’s quarter of 1996 from the International a company did not distinguish interest regulations based on the rates certified Energy Agency’s Energy Price and income as a line item within total ‘‘other by the Federal Reserve Bank. Taxes, and a 1996–1997 price from the income,’’ we used the ratio of interest publication Federation of Indian income to total other income as reported Verification Chambers of Commerce. To value for the Indian metals industry in the firewood, we used a 1990 domestic Reserve Bank of India Bulletin to As provided in section 782(i) of the value from the USAID publication calculate the interest expense amount. Act and 19 CFR 351.307, we intend to Marketing Opportunities for Social For example, if an Indian company’s verify certain information relied upon in Forestry in Uttar Pradesh. To value financial statement indicated that the making our final results. In this review, electricity, we used a price applicable company had miscellaneous receipts or on May 5, 1998, the petitioner requested during the fourth quarter of 1996 from other income under the general category the Department to conduct verification the International Energy Agency’s ‘‘other income,’’ we applied a ratio of the information and statements Energy Price and Taxes. (based on data contained in Reserve submitted by the exporter/producer We valued labor based on a Bank of India Bulletin) to that combinations excluded from this order. regression-based wage rate, in miscellaneous receipts or other income We intend to verify several respondents, accordance with 19 CFR 351.408(c)(3). figure in the financial statement to including the exporter/producer To value selling, general and determine the amount associated with combinations excluded from the order, administrative (‘‘SG&A’’) expenses, short-term interest income. To avoid in accordance with 19 CFR 351.307. factory overhead and profit, we double-counting, we treated the line Preliminary Results of the Review calculated simple averages based on item ‘‘packing, freight and delivery financial data from five Indian charges’’ as expenses to be valued We preliminarily determine that the producers. We used only those separately. Specifically, to determine following margins exist for the seven producers’ financial reports which were the packing expense, we used the respondents, who submitted full contemporaneous with the POR and for respondents’ reported packing factors. responses to the antidumping which PAI demonstrated that those We used the respondents’ reported questionnaire, during the period companies are producers of the subject distances to determine the foreign October 10, 1996, through March 31, merchandise (i.e., Jayaswals Neco inland freight expense. For a further 1998:
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Margin margins calculated for the examined antidumping duties prior to liquidation Manufacturer/producer/exporter percent sales to the total entered value of those of the relevant entries during this same sales. In order to estimate the review period. Failure to comply with Yantai Chen Fu Machinery Co., entered value, we will subtract this requirement could result in the Ltd ...... 0.00 international movement expenses from Secretary’s presumption that Jilin Provincial Machinery & the gross sales value. In accordance with Equipment Import & Export reimbursement of antidumping duties Corporation ...... 0.00 19 CFR 351.106(c)(2), we will instruct occurred and the subsequent assessment Longjing Walking Tractor Works the Customs Service to liquidate of double antidumping duties. Foreign Trade Import & Export without regard to antidumping duties These administrative and new shipper Corporation ...... 0.00 all entries of subject merchandise administrative reviews and notice are in Shandong Jiuyang Enterprise during the POR for which the importer- accordance with section 751(a)(1) and Corporation ...... 0.00 specific assessment rate is zero or de (2)(B) of the Act (19 U.S.C. 1675(a)(1) Xianghe Zichen Casting Co., Ltd. 0.00 minimis (i.e., less than 0.50 percent). and (2)(B)) and 19 CFR 351.213 and Yantai Import & Export Corpora- For entries subject to the PRC-wide rate, 351.214. tion ...... 0.00 the Customs Service shall assess ad Dated: April 30, 1999. Yenhere Corporation ...... 0.00 valorem duties at the rate established in PRC-Wide Rate ...... 43.32 the final results. The Department will Richard W. Moreland, Acting Assistant Secretary for Import Parties to the proceeding may request issue appropriate appraisement instructions directly to the Customs Administration. disclosure within five days of the date Service upon completion of this review. [FR Doc. 99–11422 Filed 5–5–99; 8:45 am] of publication of this notice. Any BILLING CODE 3510±DS±P interested party may request a hearing Cash Deposit Requirements within 45 days of publication. Any Upon completion of this new shipper hearing, if requested, will be held on review, for entries from Chen Fu, we DEPARTMENT OF COMMERCE July 22, 1999. will require cash deposits at the rate Issues raised in the hearing will be established in the final results pursuant International Trade Administration limited to those raised in the respective to section 751(a)(2)(B)(iii) of the Act and [A±580±809] case briefs and rebuttal briefs. Case section 351.214(e) of the Department’s briefs from interested parties may be regulations and as further described Circular Welded Non-Alloy Steel Pipe submitted not later than July 13, 1999. below. from the Republic of Korea; Rebuttal briefs, limited to issues raised The following deposit requirements Rescission of Antidumping Duty in the case briefs, will be due July 20, will be effective upon publication of the Administrative Review. 1999. Parties who submit case briefs or final results of these administrative and rebuttal briefs in this proceeding are new shipper antidumping duty AGENCY: Import Administration, requested to submit with each argument administrative reviews for all shipments International Trade Administration, (1) a statement of the issue and (2) a of brake rotors from the PRC entered, or Department of Commerce. brief summary of the argument. Parties withdrawn from warehouse, for ACTION: Notice of Rescission of are also encouraged to provide a consumption on or after the publication Antidumping Duty Administrative summary of the arguments not to exceed date, as provided by section 751(a)(1) of Review. five pages and a table of statutes, the Act: (1) the cash deposit rate for SUMMARY: In response to timely regulations and cases cited. each reviewed company will be the rate withdrawals of request for review by the The Department will issue the final established in the final results; (2) the petitioners and respondents, Korea Iron results of this administrative and new cash deposit rate for PRC exporters who and Steel Co., Ltd., SeAH Steel shipper review, including the results of received a separate rate in the LTFV Corporation and Shinho Steel Co., Ltd., its analysis of issues raised in any such investigation but who did not export the Department of Commerce is written briefs or at the hearing, if held, subject merchandise during the POR or rescinding the 1997/1998 antidumping not later than 120 days after the date of for whom there was no request for duty administrative review of circular publication of this notice. review (i.e., Southwest and welded non-alloy steel pipe from the Interested parties who wish to request Xinchangyuan) will continue to be the Republic of Korea. a hearing or to participate if one is rate assigned in that investigation; (3) requested, must submit a written the cash deposit rate for the PRC NME EFFECTIVE DATE: May 6, 1999. request to the Assistant Secretary for entity (i.e., all other PRC exporters, FOR FURTHER INFORMATION CONTACT: Import Administration, Room B–099, including Hebei, Qingdao and Shanxi) Alysia Wilson or Cynthia Thirumalai, within 45 days of the date of publication will be 43.32 percent; and (4) the cash Import Administration, International of this notice. Requests should contain: deposit rate for non-PRC exporters of Trade Administration, US Department (1) the party’s name, address and subject merchandise from the PRC will of Commerce, 14th Street and telephone number; (2) the number of be the rate applicable to the PRC Constitution Avenue, NW, Washington participants; and (3) a list of issues to be supplier of that exporter. These DC 20230; telephone (202) 482–0108 discussed. See 19 CFR 351.310(c). requirements, when imposed, shall and 482–4087 respectively. Assessment Rates remain in effect until publication of the The Applicable Statute and Regulations final results of the next administrative The Department shall determine, and review. Unless otherwise indicated, all the Customs Service shall assess, citations to the Tariff Act of 1930, as antidumping duties on all appropriate Notification to Importers amended (‘‘the Act’’), are references to entries. Pursuant to 19 CFR This notice serves as a preliminary the provisions effective January 1, 1995, 351.212(b)(1), we will calculate reminder to importers of their the effective date of the amendments importer-specific ad valorem duty responsibility under 19 CFR made to the Act by the Uruguay Round assessment rates based on the ratio of 351.402(f)(2) to file a certificate Agreements Act. In addition, all the total amount of the dumping regarding the reimbursement of references to the Department of
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Commerce’s (‘‘the Department’s’’) Recession of 1997/98Antidumping Duty The Applicable Statute and Regulations regulations are to 19 CFR part 351 (April Administrative Review Unless otherwise indicated, all 1998). On December 23, 1998, we published citations to the statute are references to Scope of Review our Notice of Initiation of Antidumping the provisions effective January 1, 1995, and Countervailing Administrative the effective date of the amendments The merchandise subject to this Reviews (63 FR 71091–01). made to the Tariff Act of 1930 (the Act) review is circular welded non-alloy Subsequently, we received timely by the Uruguay Round Agreements Act. steel pipe and tube, of circular cross- withdrawals of request for review from In addition, unless otherwise indicated, section, not more than 406.4mm (16 the petitioners and respondents, Korea all citations to the Departments’s inches) in outside diameter, regardless Iron and Steel Co., Ltd., SeAH Steel regulations are to the current of wall thickness, surface finish (black, Corporation and Shinho Steel Co., Ltd. regulations, codified at 19 CFR Part 351 galvanized, or painted), or end finish Because all requests for review have (April, 1998). been withdrawn, we are rescinding this (plain end, beveled end, threaded, or Background threaded and coupled). These pipes and review in its entirety in accordance with tubes are generally known as standard section 351.213(d)(1) of our regulations. On March 30, 1999, the Department pipes and tubes and are intended for the This notice is published in received a timely request, in accordance low-pressure conveyance of water, accordance with section 777(i)(1) of the with section 751(a)(2)(B) of the Act and steam, natural gas, air, and other liquids Act. section 351.214(c) of the Department’s and gases in plumbing and heating Dated: April 29, 1999. regulations, for a new shipper systems, air-conditioning units, Richard W. Moreland, administrative review of the automatic sprinkler systems, and other Deputy Assistant Secretary for Import antidumping duty order on freshwater related uses. Standard pipe may also be Administration. crawfish tail meat, issued on September used for light load-bearing applications, [FR Doc. 99–11423 Filed 5–5–99; 8:45 am] 15, 1997. such as for fence tubing, and as BILLING CODE 3510±DS±P Initiation of Review structural pipe tubing used for framing In its request of March 30, 1999, and as support members for DEPARTMENT OF COMMERCE Yancheng Haiteng, as required by 19 reconstruction or load-bearing purposes CFR 351.214(b)(i) and (iii)(A), certified in the construction, shipbuilding, International Trade Administration that it did not export the subject trucking, farm equipment, and other merchandise to the United States during related industries. Unfinished conduit [A-570-848] the period of investigation (POI) (March pipe is also included in this order. Freshwater Crawfish Tail Meat From 1, 1996 through August 31, 1996), and All carbon-steel pipes and tubes the People's Republic of China: that since the investigation was initiated within the physical description outlined Initiation of New Shipper Antidumping on October 23, 1996, it has not been above are included within the scope of Administrative Review affiliated with any company which this review except line pipe, oil-country exported subject merchandise to the tubular goods, boiler tubing, mechanical AGENCY: Import Administration, United States during the POI. Yancheng tubing, pipe and tube hollows for International Trade Administration, Haiteng further certified that its export redraws, finished scaffolding, and Department of Commerce. activities are not controlled by the finished conduit. In accordance with the ACTION: Notice of Initiation of New central government of the PRC, Final Negative Determination of Scope Shipper Antidumping Administrative satisfying the requirements of 19 CFR Inquiry on Certain Circular Welded Review. 351.214(b)(2)(iii)(B). Pursuant to the Non-Alloy Steel Pipe and Tube from Department’s regulations at 19 SUMMARY: The Department of Commerce Brazil, the Republic of Korea, Mexico, CFR351.214(b)(2)(iv), Yancheng Haiteng (the Department) has received a request submitted documentation establishing and Venezuela (61 FR 11608, March 21, from Yancheng Haiteng Aquatic 1996), pipe certified to the API 5L line- the date on which the subject Products & Foods Co., Ltd. (Yancheng merchandise was first entered for pipe specification and pipe certified to Haiteng) to conduct a new shipper both the API 5L line-pipe specifications consumption into the United States, the administrative review of the volume of that first shipment, and the and the less-stringent ASTM A–53 antidumping duty order on freshwater standard-pipe specifications, which falls date of its first sale to an unaffiliated crawfish tail meat from the People’s customer in the United States. within the physical parameters as Republic of China (PRC), which has a outlined above, and entered as line pipe In accordance with section September anniversary date. In 751(a)(2)(B) and 19 CFR 351.214(d), we of a kind used for oil and gas pipelines accordance with the Department’s are outside of the scope of the are initiating a new shipper review of regulations, we are initiating this the antidumping duty order on antidumping duty review. administrative review. freshwater crawfish tail meat from the Imports of these products are EFFECTIVE DATE: May 6, 1999. PRC. In accordance with 19 CFR currently classifiable under the FOR FURTHER INFORMATION CONTACT: 351.214(h)(1), we intend to issue following Harmonized Tariff Schedule Sarah Ellerman, Laurel LaCivita or preliminary results of this review no of the United States (HTSUS) Maureen Flannery, AD/CVD later than 180 days after the date of subheadings: 7306.30.10.00, Enforcement, Import Administration, initiation. 7306.30.50.25, 7306.30.50.32, International Trade Administration, The standard period of review (POR) 7306.30.50.40, 7306.30.50.55, U.S. Department of Commerce, 14th in a new shipper proceeding initiated in 7306.30.50.85, and 7306.30.50.90. Street and Constitution Avenue, N.W., the month immediately following the Although the HTSUS subheadings are Washington D.C. 20230; telephone: semiannual anniversary month is the provided for convenience and customs (202) 482–4106, (202) 482–4236 or (202) six-month period immediately purposes, our written description of the 482–3020, respectively. preceding the semi-annual anniversary scope of this review is dispositive. SUPPLEMENTARY INFORMATION: month. Therefore, the POR for this new
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4703 Sfmt 4700 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24329 shipper review of Yancheng Haiteng is provisions effective January 1, 1995, the FOR FURTHER INFORMATION CONTACT: September 1, 1998 through February 28, effective date of the amendments made Nithya Nagarajan, John Totaro, LaVonne 1999. to the Act by the Uruguay Round Jackson, or Keir Whitson, Import Concurrent with publication of this Agreements Act (URAA). In addition, all Administration, International Trade notice, and in accordance with 19 CFR citations to the Department’s regulations Administration, U.S. Department of 351.214(e), we will instruct the U.S. are to the regulations at 19 CFR Part 351 Commerce, 14th Street and Constitution Customs Service to allow, at the option (1998). Avenue, NW, Washington, DC 20230; of the importer, the posting of a bond or telephone: (202) 482–4243, (202) 482– Postponement of Final Determination security in lieu of a cash deposit for 1374, (202) 482–0961, and (202) 482– and Extension of Provisional Measures each entry of the merchandise exported 1394, respectively. On February 25, 1999, the affirmative by the company listed above, until the The Applicable Statute completion of the review. preliminary determination was Interested parties must submit published in this proceeding (see Notice Unless otherwise indicated, all applications for disclosure under of Preliminary Determination of Sales at citations to the Tariff Act of 1930, as administrative protective order in Less Than Fair Value: Hot-Rolled Flat- amended (‘‘the Act’’), are references to accordance with 19 CFR 351.305 and Rolled Carbon-Quality Steel Products the provisions effective January 1, 1995, 351.306. from the Russian Federation, 64 FR the effective date of the amendments This initiation and notice are in 9312). Pursuant to section 735(a)(2) of made to the Act by the Uruguay Round accordance with section 751(a) of the the Act, on March 4, 1999, respondent Agreements Act (‘‘URAA’’). In addition, Act (19 U.S.C. 1675(a)) and 19 CFR JSC Severstal (Severstal) requested that unless otherwise indicated, all citations 351.214. the Department extend the final to the Department’s regulations are to the regulations at 19 C.F.R. part 351 Dated: April 30, 1999. determination in this case (19 U.S.C. 1673(a)(2)). Severstal also requested an (1998). Roland L. MacDonald, extension of the provisional measures Final Determination Acting Deputy Assistant Secretary for Import (i.e., suspension of liquidation) period Administration. from four to six months in accordance We determine that hot-rolled, flat- [FR Doc. 99–11421 Filed 5–5–99; 8:45 am] with the Department’s regulations (19 rolled, carbon-quality steel products BILLING CODE 3510±DS±P CFR 351.210(e)(2)). Therefore, in (‘‘hot-rolled steel’’) from Japan is being accordance with 19 CFR sold in the United States at less than fair value (‘‘LTFV’’), as provided in Section DEPARTMENT OF COMMERCE 351.210(e)(2)(ii), because (1) our preliminary determination is 735 of the Act. The estimated margins are shown in the ‘‘Continuation of International Trade Administration affirmative, (2) respondent requesting the postponement represents a Suspension of Liquidation’’ section of [A±821±809] significant proportion of exports of the this notice. subject merchandise from Russia, and Postponement of Final Determination Case History (3) no compelling reasons for denial of Antidumping Duty Investigation of Since the Preliminary Determination exist, we are postponing this final Hot-Rolled Flat-Rolled Carbon-Quality (see Notice of Preliminary determination for 31 days until June 10, Steel From the Russian Federation Determination of Sales at Less Than 1999 (see Memorandum from Joseph Fair Value: Hot-Rolled Flat-Rolled AGENCY: Import Administration, Spetrini to Richard Moreland dated Carbon-Quality Steel Products from International Trade Administration, April 28, 1999). Suspension of Japan, 64 FR 8291 (Feb. 19, 1999)) Department of Commerce. liquidation will be extended (‘‘Preliminary Determination’’), the ACTION: Notice of extension of time limit accordingly. following events have occurred: for final determination of antidumping This notice of postponement is During February and March 1999, duty investigation. published pursuant to 19 CFR respondents Nippon Steel Corporation 351.210(g). (‘‘NSC’’), NKK Corporation (‘‘NKK’’) and SUMMARY: The Department of Commerce Dated: April 28, 1999. Kawasaki Steel Corporation (‘‘KSC’’) (the Department) is extending the time Richard Moreland, submitted responses to the sales and limit of the final determination of the Acting Assistant Secretary for Import cost supplemental questionnaires issued antidumping duty investigation of hot- Administration. by the Department. On February 12, rolled flat-rolled carbon-quality steel [FR Doc. 99–11283 Filed 5–5–99; 8:45 am] 1999, February 25, 1999, and March 3, (Hot-Rolled Steel) from the Russian BILLING CODE 3510±DS±M 1999, petitioners submitted comments Federation (Russia). regarding the issue of date of sale and EFFECTIVE DATE: May 6, 1999. the Department’s Japan sales and cost FOR FURTHER INFORMATION CONTACT: Lyn DEPARTMENT OF COMMERCE verifications. On February 19, 1999, Baranowski or Rick Johnson at (202) NKK filed an allegation of clerical error 482–3208 or 482–3818, respectively, International Trade Administration and requested the Department to issue Office of AD/CVD Enforcement, Group [A±588±846] an amended preliminary determination. III, Office 9, Import Administration, On March 1, 1999, NSC submitted pre- International Trade Administration, Notice of Final Determination of Sales verification changes and new factual U.S. Department of Commerce, 14th at Less Than Fair Value: Hot-Rolled information presumably discovered Street and Constitution Avenue, NW, Flat-Rolled Carbon-Quality Steel while preparing for the sales verification Washington, D.C. 20230. Products From Japan in Japan. On March 4, 1999, KSC submitted corrections presumably The Applicable Statute AGENCY: Import Administration, discovered while preparing for sales Unless otherwise indicated, all International Trade Administration, verification. Similarly, on March 4, citations to the Tariff Act of 1930 (the Department of Commerce. 1999, NKK submitted pre-verification Act), as amended are references to the EFFECTIVE DATE: May 6, 1999. changes and new factual information
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24330 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices presumably discovered while preparing 10 times the thickness. Universal mill 0.30 percent of cobalt, or for sales verification. plate (i.e., flat-rolled products rolled on 0.40 percent of lead, or During February and March 1999, we four faces or in a closed box pass, of a 1.25 percent of nickel, or conducted sales and cost verifications of width exceeding 150 mm but not 0.30 percent of tungsten, or NSC’s, NKK’s and KSC’s responses to exceeding 1250 mm and of a thickness 0.012 percent of boron, or the antidumping questionnaire. On of not less than 4 mm, not in coils and 0.10 percent of molybdenum, or March 26, 1999, we issued our sales and without patterns in relief) of a thickness 0.10 percent of niobium, or cost verification reports for all three not less than 4.0 mm is not included responding companies. Petitioners and within the scope of these investigations. 0.41 percent of titanium, or respondents submitted case briefs on Specifically included in this scope are 0.15 percent of vanadium, or April 12, 1999, and rebuttal briefs on vacuum degassed, fully stabilized 0.15 percent of zirconium. April 19, 1999. On April 21, 1999, the (commonly referred to as interstitial-free All products that meet the physical and Department held a public hearing. In (‘‘IF’’)) steels, high strength low alloy chemical description provided above addition, on April 12, 1999, General (‘‘HSLA’’) steels, and the substrate for are within the scope of this Motors Corporation (‘‘GM’’) requested a motor lamination steels. IF steels are investigation unless otherwise scope exclusion for hot-rolled carbon recognized as low carbon steels with excluded. The following products, by steel that both meets the standards of micro-alloying levels of elements such way of example, are outside and/or SAE J2329 Grade 2 and is of a gauge as titanium and/or niobium added to specifically excluded from the scope of thinner than 2 mm with a 2.5 percent stabilize carbon and nitrogen elements. this investigation: maximum tolerance. On April 22, 1999, HSLA steels are recognized as steels • Alloy hot-rolled steel products in the petitioners requested that certain with micro-alloying levels of elements which at least one of the chemical ASTM A570–50 grade steel be excluded such as chromium, copper, niobium, elements exceeds those listed above from the investigation. For a more titanium, vanadium, and molybdenum. (including e.g., ASTM specifications detailed discussion of scope issue, The substrate for motor lamination A543, A387, A514, A517, and A506). please see Scope Amendments steels contains micro-alloying levels of • SAE/AISI grades of series 2300 and Memorandum, dated April 28, 1999. elements such as silicon and aluminum. higher. Steel products to be included in the Scope of Investigation • Ball bearing steels, as defined in the scope of this investigation, regardless of HTSUS. For purposes of this investigation, the HTSUS definitions, are products in • Tool steels, as defined in the products covered are certain hot-rolled which: (1) iron predominates, by flat-rolled carbon-quality steel products HTSUS. weight, over each of the other contained • of a rectangular shape, of a width of 0.5 elements; (2) the carbon content is 2 Silico-manganese (as defined in the inch or greater, neither clad, plated, nor percent or less, by weight; and (3) none HTSUS) or silicon electrical steel with coated with metal and whether or not a silicon level exceeding 1.50 percent. of the elements listed below exceeds the • painted, varnished, or coated with quantity, by weight, respectively ASTM specifications A710 and plastics or other non-metallic indicated: A736. • substances, in coils (whether or not in 1.80 percent of manganese, or USS Abrasion-resistant steels (USS successively superimposed layers) 1.50 percent of silicon, or AR 400, USS AR 500). regardless of thickness, and in straight 1.00 percent of copper, or • Hot-rolled steel coil which meets lengths, of a thickness less than 4.75 0.50 percent of aluminum, or the following chemical, physical and mm and of a width measuring at least 1.25 percent of chromium, or mechanical specifications:
C Mn PS Si Cr Cu Ni
0.10±0.14% ...... 0.90% Max .. 0.025% Max 0.005% Max 0.30±0.50% 0.50±0.70% 0.20±0.40% 0.20% Max.
Width = 44.80 inches maximum; Thickness = 0.063¥0.198 inches; Yield Strength = 50,000 ksi minimum; Tensile Strength = 70,000¥88,000 psi. • Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
C Mn PS Si Cr Cu Ni Mo
0.10±0.16% ...... 0.70±0.90% 0.025% Max 0.006% Max 0.30±0.50% 0.50±0.70% 0.25% Max .. 0.20% Max .. 0.21% Max
Width = 44.80 inches maximum; Thickness = 0.350 inches maximum; Yield Strength = 80,000 ksi minimum; Tensile Strength = 105,000 psi Aim. • Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
C Mn PS Si Cr Cu Ni V(wt.) Cb
010.10±0.14% ...... 11.30± 10.025% 1.005% 10.30± 10.50± 10.20± 10.20% 010.10 0.08% Max 1.80%. Max. Max. 0.50%. 0.70%. 0.40%. Max. Max.
Width = 44.80 inches maximum; Thickness = 0.350 inches maximum; Yield Strength = 80,000 ksi minimum; Tensile Strength = 105,000 psi Aim. • Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
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C Mn PS Si Cr Cu Ni Nb Ca Al
0.15% 1.40% Max 0.025% 0.010% 0.50% Max 1.00% Max 0.50% Max 0.20% Max 0.005% Treated .... 0.01± Max. Max. Max. Min. 0.07%
Width = 39.37 inches; Thickness = including: vacuum degassed, fully resulting in the application of an 0.181 inches maximum; Yield Strength stabilized; high strength low alloy; and incorrect DIFMER adjustment. For a = 70,000 psi minimum for thicknesses ≤ the substrate for motor lamination steel complete discussion, please see the 0.148 inches and 65,000 psi minimum may also enter under the following tariff Department’s Final Determination for thicknesses >0.148 inches; Tensile numbers: 7225.11.00.00, 7225.19.00.00, Analysis Memo, dated April 28, 1999. Strength = 80,000 psi minimum. 7225.30.30.50, 7225.30.70.00, Second, the Department disallowed • Hot-rolled dual phase steel, phase- 7225.40.70.00, 7225.99.00.90, KSC’s home market technical service hardened, primarily with a ferritic- 7226.11.10.00, 7226.11.90.30, expenses because these expenses could martensitic microstructure, contains 0.9 7226.11.90.60, 7226.19.10.00, not be verified. However, we continue percent up to and including 1.5 percent 7226.19.90.00, 7226.91.50.00, to adjust for U.S. technical service silicon by weight, further characterized 7226.91.70.00, 7226.91.80.00, and expenses. See KSC Home Market by either (i) tensile strength between 7226.99.00.00. Although the HTSUS Verification Report, dated March 26, 540 N/mm 2 and 640 N/mm 2 and an subheadings are provided for 1999; see also KSC Final Analysis elongation percentage ≥26 percent for convenience and Customs purposes, the Memo, dated April 28, 1999. thicknesses of 2 mm and above, or (ii) written description of the merchandise Third, the Department corrected the a tensile strength between 590 N/mm 2 under investigation is dispositive. model match and margin programs for 2 and 690 N/mm and an elongation Period of Investigation all three companies in calculating percentage ≥25 percent for thicknesses packing costs for use in the cost test and of 2mm and above. The period of investigation (‘‘POI’’) is constructed value. In the Preliminary • Hot-rolled bearing quality steel, July 1, 1997 through June 30, 1998. Determination, the Department SAE grade 1050, in coils, with an Product Comparisons inadvertently used a sale specific packing cost for use in the calculation inclusion rating of 1.0 maximum per In accordance with section 771(16) of of general and administrative (‘‘G&A’’) ASTM E 45, Method A, with excellent the Act, all products produced by the expenses and interest expenses in both surface quality and chemistry respondents covered by the description the cost test and constructed value restrictions as follows: 0.012 percent in the Scope of Investigation section, analysis. For the final determination, maximum phosphorus, 0.015 percent above, and sold in Japan during the POI the Department has revised this section maximum sulfur, and 0.20 percent are considered to be foreign like of the program to calculate a weighted- maximum residuals including 0.15 products for purposes of determining average packing cost per CONNUM for percent maximum chromium. appropriate product comparisons to • use in these calculations. For a more Grade ASTM A570–50 hot-rolled U.S. sales. We have relied on eleven complete analysis, please see the Final steel sheet in coils or cut lengths, width characteristics to match U.S. sales of of 74 inches (nominal, within ASTM subject merchandise to comparison Determination Analysis Memo, dated tolerances), thickness of 11 gauge (0.119 market sales of the foreign like product: April 28, 1999, for all three responding inch nominal), mill edge and skin paint, quality, carbon content, strength, companies. passed, with a minimum copper content thickness, width, coiled or non-coiled, Interested Party Comments of 0.20%. temper rolling, pickling, edge trim, and The merchandise subject to these patterns. These characteristics have Home Market and U.S. Sales investigations is classified in the been weighted by the Department where Comment 1: Date of Sale. Harmonized Tariff Schedule of the appropriate. Where there were no sales NKK United States (‘‘HTSUS’’) at of identical merchandise in the home subheadings: 7208.10.15.00, market to compare to U.S. sales, we NKK states that the Department 7208.10.30.00, 7208.10.60.00, compared U.S. sales to the next most should reaffirm its preliminary finding 7208.25.30.00, 7208.25.60.00, similar foreign like product on the basis that the invoice date/shipment date is 7208.26.00.30, 7208.26.00.60, of the characteristics listed in the the most appropriate date of sale for 7208.27.00.30, 7208.27.00.60, antidumping questionnaire and NKK. NKK argues that the material 7208.36.00.30, 7208.36.00.60, reporting instructions. terms of sale were not finalized until 7208.37.00.30, 7208.37.00.60, after shipment for the majority of its 7208.38.00.15, 7208.38.00.30, Changes From the Department’s U.S. and home market sales as 7208.38.00.90, 7208.39.00.15, Preliminary Determination supported by documentation provided 7208.39.00.30, 7208.39.00.90, The Department, upon review of the during verification. In addition, NKK 7208.40.60.30, 7208.40.60.60, preliminary margin calculation argues that the Department’s regulations 7208.53.00.00, 7208.54.00.00, program, found that there were errors and other determinations dictate the use 7208.90.00.00, 7210.70.30.00, associated with the calculation of the of date of invoice as the date of sale. 7210.90.90.00, 7211.14.00.30, difference in merchandise adjustment NKK argues that its demonstrated 7211.14.00.90, 7211.19.15.00, (DIFMER) in NKK’s model match sales process clearly indicates that the 7211.19.20.00, 7211.19.30.00, program. The program that we used, invoice date/shipment date best reflects 7211.19.45.00, 7211.19.60.00, failed to calculate the DIFMER the date on which the final material 7211.19.75.30, 7211.19.75.60, adjustment associated with the terms of sale were finalized during the 7211.19.75.90, 7212.40.10.00, matching home market CONNUM. period of investigation, and that 7212.40.50.00, 7212.50.00.00. Certain Instead, the DIFMER calculation material terms of sale, i.e. price and hot-rolled flat-rolled carbon-quality selected in the concordance program quantity, often changed after the order steel covered by this investigation, was chosen from the last comparison, confirmation date. NKK argues that the
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Department verified that a significant Petitioners further argue that, in the to be ignored in the date of sale analysis. portion of home market and U.S. sales majority of sales reviewed at Third, NKK argues that the evidence on had significant changes to price and/or verification, the quantities shipped were the record demonstrates that the final quantity during the POI, and therefore within shipping tolerances and should price invoiced was not determined until the invoice/shipment date is the most therefore not be considered in the date after shipment occurred and this differs appropriate date of sale for NKK’s sales of sale analysis. Because sales where the from the price stated on the order of subject merchandise. quantity shipped was outside the confirmation. Fourth, NKK contends Secondly, NKK argues that the applicable delivery tolerances occurred that each of the cases cited by Department’s regulations indicate a only in a small number of verified petitioners in their argument can be preference for the use of date of invoice transactions, the order confirmation distinguished from the facts in the as the date of sale where changes from date is the appropriate date of sale. present case. NKK argues that, in each the original order occur on a frequent Petitioners further argue that, in Certain of these cases, the Department used the basis. NKK states that the Department Corrosion-Resistant Carbon Steel Flat established a presumption that material order confirmation date because there Products from Japan: Final Results of were no changes to the terms of sale terms would be considered established Antidumping Duty Administrative on the invoice date after adopting after the order date, whereas in the Review (‘‘Certain Corrosion-Resistant instant case, NKK has proven and the § 351.401(i) of its regulations. NKK also Carbon Steel From Japan’’), 64 FR Department has verified that material argues that the presumption in favor of 12951, 12956–12957 (Mar.16, 1999), the terms are not final at order confirmation invoice date is supported by the Department used the order confirmation and that material terms changed language in the preamble to the date as the date of sale under similar regulations and that an alternative date factual circumstances. Finally, frequently. These facts, according to of sale will be used only when there is petitioners argue that the Department NKK, support the conclusion that evidence satisfying the Department that should use facts available due to the fact shipment/invoice date is the the different date better reflects the date that NKK did not report a separate appropriate date of sale. Finally, NKK on which the exporter or producer database of sales based on order argues that it is inappropriate to apply establishes the material terms of sale. confirmation date. According to adverse facts available to NKK. NKK NKK argues that the regulations petitioners, the Department requested contends that the Department gave NKK therefore place the burden of proof on NKK to provide this information in both the choice as to whether to provide a the party claiming that another date is its original questionnaire as well as its single sales database using invoice date more appropriate, and that this burden supplemental questionnaire, and NKK as the date of sale or to provide both of proof has not been satisfied by record refused to provide the requested invoice date and order confirmation evidence. Rather, the record supports information. Therefore, since the record date databases. NKK contends that it the finding that the material terms of evidence indicates that order chose to provide a single database and sale are set on the date of shipment/ confirmation date is the most has subsequently proven, through invoice; thus, that date is the most appropriate date of sale, the Department record evidence, that invoice date is the appropriate date of sale. should assign the highest dumping appropriate date of sale. Thus, there is Petitioners argue that the Department margin, or the highest rate in the may use a date of sale other than invoice no basis to use facts available. petition as facts available. date if it determines that an alternative Petitioners rebut NKK’s argument that date more accurately reflects the date on NKK rebuts petitioners’ arguments invoice date is the date on which which the material terms of sale are that order confirmation date is the date material terms of sale are set and should established. Petitioners argue that the of sale. NKK argues that petitioners are be the date of sale. Petitioners reiterate documents and information obtained at incorrect in arguing that only a few their argument that only a small NKK’s verification support the transactions were reviewed at percentage of home market and U.S. conclusion that the essential terms of verification for the Department’s date of sales had changes to material terms after sale are set on the order confirmation sale analysis. NKK argues that the the order confirmation date. Petitioners date and therefore the order Department reviewed a large sample of continue to argue that changes made confirmation is the appropriate date of sales and found that over fifty percent after shipment are not an appropriate of these transactions had changes to sale for this investigation. basis for the Department’s date of sale material terms. See NKK Sales Petitioners contend that NKK analysis. Petitioners contend that the Verification Report, dated March 26, manufactures product to order and that Department’s verification demonstrates the principal terms of sale are set at the 1999, at 14. NKK argues that, contrary that only a few sales had changes to point the customer places the order. to petitioners’ assertion, the frequency material terms, and state that this Further, they argue that although the of changes for both price and quantity Department examined numerous terms is sufficiently large to justify confirms that order confirmation date is transactions at verification, the data using invoice date as the date of sale. the appropriate date of sale. Petitioners show that only a minuscule portion of Secondly, NKK argues that petitioners’ further contend that, because NKK sales had changes to material terms (i.e., contention that post-shipment price failed to provide sales databases using price terms). Petitioners argue that, for changes are irrelevant to the date of sale order confirmation date as the date of the majority of sales, price terms did not analysis is incorrect. Citing Diameter sale, the Department should apply change between order confirmation date Circular Seamless Carbon and Alloy adverse facts available. According to and invoice/shipment date, and that, in Steel Standard Line and Pressure Pipe petitioners, NKK did not report all sales instances where changes did occur, they from German: Final Results of where the order was confirmed within were accounted for after the invoice was Antidumping Duty Administrative the POI, therefore the necessary sales issued. Petitioners contend that changes Review, 63 FR 13217 (March 18, 1998), are not on the record. Because NKK to price terms which occur after NKK argues that the Department stated failed to report these sales, there is invoicing are not an appropriate that it will use shipment date as a proxy justification for the Department to reject adjustment for consideration in the date for sales invoice after shipment, not NKK’s response and apply facts Department’s date of sale analysis. that all post-shipment price changes are available.
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NSC as a result the most appropriate date of invoice date as the date of sale creates NSC argues that the Department sale is the date of order confirmation. a new standard unsupported by should follow its preliminary Petitioners argue that NSC only statutory or case precedent. Further, produces merchandise after the determination and continue using the they claim that the argument that there customer places the order and that the date of shipment as the date of sale. is a potential for change should also be critical step in determining the material NSC argues that the Department verified disregarded as it is based on a terms of sale is the issuance of the order that the essential terms of sale changed misunderstanding of the Department’s confirmation. Petitioners further argue between the initial order and shipment regulations. Rather, they contend that it that the evidence examined at date for a significant portion of home would be unreasonable to use invoice verification supports the conclusion that market and U.S. sales. NSC used the date as the date of sale merely because only modifications that occur between there is a hypothetical potential for date of shipment as a proxy for the date order confirmation and shipment are post-order modifications. Petitioners of invoice because the shipment date relevant to the date of sale analysis, and conclude that, based on the facts and falls within a short time of the invoice that modifications which occur after evidence on the record, the Department date. shipment are not relevant to the date of NSC argues that the Department’s should use the order confirmation date sale because the Department does not or the date of the revised order regulations mandate the use of date of examine any date after the date of confirmation as the date of sale. invoice as the date of sale, and that shipment as a possible date of sale. NSC rebuts petitioners’ arguments there is a rebuttable presumption that Petitioners contend that the data that order confirmation date is the most the appropriate date of sale is the examined at verification indicate that appropriate date of sale by reiterating its invoice date. NSC argues that the only a small portion of home market initial arguments on this topic. In presumption can only be overcome by and U.S. sales have changes to either addition, NSC contends that petitioners’ compelling evidence on the record. NSC price or quantity between order analysis of the information on the states that the essential terms of sale for confirmation and shipment. Further, record is wrong both in fact and in law. its sales of subject merchandise are not they contend that the analysis presented NSC argues that petitioners have finally established until, and sometimes by NSC at verification was incorrect. misread how NSC reports its price after, shipment, and that this supports Petitioners argue that their examination adjustments after shipment and how the presumption in favor of invoice of the record shows that the sales traces NSC’s documents reflect order date. NSC argues that there is a high examined indicated changes after the modifications. NSC rebuts each of standard to be met to overcome this date of shipment and are therefore petitioners’ points using proprietary presumption, and that record evidence inappropriate to use as a basis for information which is incapable of on the frequency of changes and the examining the most appropriate date of adequate public summary. NSC argues potential for change to the essential sale. In sum, the petitioners argue that that petitioners’ claims that order terms after the initial order support the NSC’s claimed date of sale is not modification is the correct date because finding that invoice date is the supported by record evidence and the changes in the orders prior to shipment appropriate date of sale. Department should use the order are reflected in the order modification NSC argues that the Department confirmation date as the date of sale, as and that changes after shipment cannot verified that material terms of sale it did in Certain Corrosion-Resistant be considered are wrong. According to changed after the initial order was Carbon Steel Products from Japan 64 FR NSC, the Department may consider placed in a significant portion of the at 12956–57. potential for changes both pre- and post- sales examined. In addition, respondent Petitioners argue that, should the shipment in conducting its date of sale argues that the Department verified that, Department choose to use date of analysis. In fact, NSC argues, the in the Japanese hot-rolled steel industry, invoice as the date of sale, it should Department’s questionnaire instructs terms of sale are not established until employ a transaction-specific date of them to report the unit price recorded the material is shipped to the purchaser. sale analysis, isolate those individual on the invoice for sales shipped and Based on these reasons, NSC argues that transactions for which material terms invoiced in whole or in part, which is the date of shipment/invoice is the most did not change, and use the order what NSC reported to the Department. appropriate date of sale as supported by confirmation date as the date of sale for NSC argues that the Department’s the preference stated in the such transactions. In cases where terms regulations create a presumption in Department’s regulations and record of sale did change, the Department favor of date of invoice as the date of evidence and we should continue using could use the date of shipment/invoice sale, a presumption which the the date of shipment as the date of sale as the date of sale. petitioners have not overcome through for the final determination. Petitioners rebut NSC’s argument that record evidence. NSC argues once again Petitioners argue that the Department date of shipment/invoice is the that the significance of potential for may use a date of sale other than invoice appropriate date of sale. Petitioners change has been supported by date if it determines that an alternative argue that the information on the record Department precedent. Thus, the date more accurately reflects the date on does not support the conclusion that a Department has concluded that simply which the material terms of sale are significant number of NSC’s home because the essential terms of sale did established. Petitioners argue that the market and U.S. sales had changes to not change after the initial contract date, documents and information obtained at material terms after shipment occurred. this does not demonstrate that essential NSC’s verification support the In fact, petitioners contend that only a terms of sale were not subject to change conclusion that the essential terms of small minority of reviewed transactions after this date. See Certain Cold-Rolled sale are set on the order confirmation had changes to material terms sufficient and Corrosion-Resistant Carbon Steel date and therefore the order to justify the determination that Flat Products from Korea: Final Results confirmation is the appropriate date of shipment/invoice date is the of Antidumping Duty Administrative sale for this investigation. In sum, appropriate date of sale. In addition, Reviews (‘‘Carbon Steel Flat Products petitioners argue that there was not a petitioners state that NSC’s argument from Korea’’), 64 FR 12927, 12935 significant portion of sales for which that there are compelling facts on the (March 16, 1999). NSC concludes, that material terms of sale changed, and that record to warrant the use of shipment/ because the terms of NSC’s sales of
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24334 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices subject merchandise remain subject to instances within the home market, price In this investigation, in response to change throughout the sales process, changes may occur even after invoicing. the original questionnaire, NSC and petitioners cannot overcome the Respondent believes that the frequency NKK reported invoice/shipment date as presumption in favor of invoice date. of material changes between order the date of sale in both the U.S. and Finally, NSC argues that the Department confirmation and invoice, as seen home markets. KSC reported order verified that 36 percent of its sales during verification, proves that the confirmation date as the date of sale during the POI were in fact modified invoice date should be used as KSC’s based on the belief that that is what the after the order confirmation was issued. date of sale because the terms of sale are Department wanted. However, KSC also The mere fact that hot-rolled steel final only at invoicing (even though the provided sales databases using invoice/ products are made-to-order is not price may change afterward in the home shipment date as the date of sale, and conclusive evidence that the parties market). continued to argue that this would be a engage in formal negotiating and Respondent also argues that invoice more appropriate date of sale. To contracting procedures that would date is the date of sale for KSC because, ascertain whether NSC, NKK and KSC result in terms of sale which are finally in accordance with the Department’s accurately reported the date of sale, the and irrevocably established at the regulations which provide that the date Department included in its January 4, beginning of the sales process. NSC of sales is to be based upon data 1999 supplemental questionnaire a argues that hot-rolled steel is a maintained by the respondent in the request for additional information commodity product that is not sold ordinary course of business, the books regarding changes in terms of sale through a formal negotiation and and records of KSC, Kawasho subsequent to order date. In its January contracting process. Therefore, Corporation (‘‘Kawasho’’) and Kawasho 25, 1999 response, NSC, NKK and KSC petitioners’ argument that hot-rolled International USA, Inc. (‘‘Kawasho indicated that there were numerous product is made to order is irrelevant to International’’) are based on invoice instances in which terms such as price the date of sale analysis. NSC argues data. Additionally, using the invoice and quantity changed subsequent to the that, based upon the evidence placed on date as the date of sale results in an confirmation of the original orders in the record, the most appropriate date of efficient use of resources by simplifying the U.S. and home markets. NSC, NKK sale is the shipment/invoice date. reporting and the verification of and KSC cited specific figures for each type of change. For purposes of our KSC information. Finally, respondent states that by using the invoice date, the Preliminary Determination, we accepted Respondent argues that the Department allows for predictability in the date of invoice as the date of sale Department’s regulation establishes a its proceedings. subject to verification. See Preliminary presumption that invoice date should be Petitioners did not comment on KSC’s Determination, 64 FR at 8294. used as the date of sale. Respondent also At verification, we carefully examined date of sale argument. argues that the Department has NSC’s, NKK’s and KSC’s selling consistently applied this rule. Department’s Position: We agree with practices. We found that each company Specifically, respondent cites Notice of all three respondents (NSC, NKK and records sales in its financial records by Final Determination of Sales at Less KSC) that invoice/shipment date is the date of invoice/shipment. For the home Than Fair Value: Stainless Steel Plate in correct date of sale for all home market market, we reviewed several sales Coils from South Africa, 64 FR 15459, and U.S. sales of subject merchandise observations for which the price and 15465 (March, 31, 1999) as evidence for each of the responding companies. quantity changed subsequent to the that the Department reaffirmed its Under our current practice, as original order (see Home Market practice of using the invoice date as the codified in the Department’s Final Verification Reports, dated March 26, proper date of sale when material terms Regulations at § 351.401(i), in 1999 for the respective companies). For of sale can change between order and identifying the date of sale of the subject the U.S. market, we reviewed several invoice date, even if the changes are not merchandise, the Department will instances in which terms of sale frequent, and the reporting company normally use the date of invoice, as changed subsequent to the original uses invoice date in its internal records. recorded in the producer’s records kept order. Based on respondents’ Furthermore, KSC asserts that the in the ordinary course of business. See representations, and as a result of our Department has stated that its Certain Welded Carbon Steel Pipes and examination of each company’s selling preference for invoice date is based on Tubes from Thailand: Final Results of records kept in the ordinary course of two policy rationales. First, the date on Administrative Review, 63 FR 55578, business, we are satisfied that the date which the terms of sales are normally 55587 (1998) (‘‘Pipes and Tubes from of invoice/shipment should be used as established is the invoice date. Second, Thailand’’). However, in some the date of sale because it best reflects the Department intends that the instances, it may not be appropriate to the date on which material terms of sale reporting and verification of information rely on the date of invoice as the date were established for NSC’s, NKK’s and be simplified, resulting in predictable of sale, because the evidence may KSC’s U.S. and home market sales. outcomes as well as the efficient use of indicate that the material terms of sale We disagree with the petitioners’ resources. Additionally, respondent were established on some date other claim that, since the terms do not asserts that the Department will use than invoice date. See Preamble to the change after the order confirmation invoice date as the date of sale unless Department’s Final Regulations at 19 date, the order date (or the final change the material terms of sale, as evidence CFR Part 351 (‘‘Preamble’’), 62 FR 27296 order date) is the most appropriate date by the record, are established on a (1997). Thus, despite the general of sale for NSC’s, NKK’s and KSC’s U.S. different date. presumption that the invoice date and home market sales. The fact that Respondent argues that material constitutes the date of sale, the terms often changed subsequent to the changes to the terms of sale, affecting Department may determine that this is original order, and even after an initial price or quantity, may and do occur not an appropriate date of sale where order confirmation, suggests that these between KSC’s order confirmation and the evidence of the respondent’s selling terms remained subject to change invoice. As a result, the terms of sale practice points to a different date on (whether or not they did change with become fixed and finalized on the which the material terms of sale were respect to individual transactions) until shipment/invoice date. In certain set. as late as the invoice date. For sales that
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As margins alleged in the petition in its in Certain Corrosion-Resistant Carbon noted above, we observed a significant preliminary critical circumstances Steel Flat Products from Japan, 64 FR number of such instances at verification finding, there is no basis for not using 12951, 12958 (Mar. 16, 1999) should, where changes did occur between order company-specific margins in the final therefore, not be followed in this case. confirmation and invoice. critical circumstances determination. In that case, the Department found that We also disagree with petitioners’ Second, NKK argues that its the material terms of sale were assertion that NSC’s, NKK’s and KSC’s shipments were not massive during the established on the date of the final order reported sales information was three months immediately preceding confirmation and that there were no inaccurate and incomplete. During the and the three months immediately material changes thereafter. As stated in course of sales verifications, the following the filing of the petition. NKK the Federal Register notice, the Department requested specific argues that the Department’s Department in that case found that there documentation from each of the longstanding practice is to compare the were no changes between the final responding companies in support of its volume of shipments during the three revised order confirmation and the claim that the date of invoice should be months preceding the filing of the shipment/invoice date. In addition, in used as the date of sale. NSC, NKK and petition with the volume of shipments the Corrosion-Resistant Steel case, there KSC complied with the verifiers’ request in a comparable period following the was no discussion on the possibility or for sales trace documentation, and the filing of the petition. The Department frequency of changes between the Department utilized the purchase order, deviated from this practice in its original order confirmation, any revised order confirmation and invoice preliminary determination as to critical order confirmations, the invoice, and information provided by each company circumstances, comparing instead the changes subsequent to the invoice. The as part of the basis for its decision on December 1997–April 1998 period to facts of the instant case are this issue. At verification, the the May 1998–September 1998 time distinguishable. In the instant case, Department also clarified which period. NKK argues that there is no pursuant to our findings at verification, quantity changes were and were not basis for the use of this time period to the Department determines that there within tolerance, and used this support a finding of critical are changes between the original order information in conducting its date of circumstances, and that the evidence on confirmation date (i.e, the date of sale sale analysis. the record does not support a finding Finally, we have not accepted proposed by petitioner), the invoice date that there were massive imports of NKK petitioners’ suggestion that the (i.e., the date of sale proposed by merchandise during the appropriate Department should use a transaction- respondents), and in certain instances comparison period. In addition, NKK specific date of sale methodology. While changes which occur after the invoice argues that the Department’s this may be appropriate for products date for a significant number of conclusions with respect to importer involving only a handful of sales within individual transactions. Each of these knowledge of dumping based on press the period of investigation or review, facts distinguishes the factual record in reports and rumors about the possibility such an approach would impose a very of antidumping cases were contradicted the current case from the Department’s substantial undue burden on both by price increases during the same time decision in the Corrosion-Resistant Steel respondents and the Department in period. Respondent argues that the case. Therefore, pursuant to our findings terms of reporting and verification. As Department’s reliance on vague news at verification, we have determined that explained in the Preamble to the articles and press reports placed on the invoice date is the appropriate date of Department’s regulations, the use of a record prior to the preliminary sale for NSC’s, NKK’s and KSC’s sales, single date of sale for each respondent determination as to critical as it most accurately represents the date makes more efficient use of the circumstances was misplaced because on which the material terms of sale are Department’s resources and enhances these sources did not clearly indicate established. the predictability of outcomes. See 62 that it was likely that the domestic In addition, the Department has also FR at 27348. industry would file antidumping cases examined the time lags between order Comment 2: Preliminary against hot-rolled steel from Japan. NKK date and invoice date to determine Determination of Critical concludes that, due to the serious whether it was appropriate to use order Circumstances. economic consequences a finding of date as the date of sale dates. See critical circumstances could involve for NKK Circular Welded Non-Alloy Steel Pipe itself and its customers, the Department from the Republic of Korea; Final NKK argues that the Department’s should utilize company-specific import Results of Antidumping Duty preliminary finding of critical data for its final critical circumstances Administrative Review (‘‘Steel Pipe from circumstances is not supported by the determination. If it does so, NKK claims, Korea’’), 63 FR 32833, 32835 (June 16, facts on the record. First, NKK states, it must make a negative finding, because 1998). However, it is important to note there is no history of dumping with the ‘‘massive shipments’’ criterion has that, in Steel Pipe from Korea, the respect to this product; thus, the not been satisfied. Department found that ‘‘{t}he material Department must find ‘‘knowledge of Petitioners rebut NKK’s argument that terms of sale in the United States are set dumping’’ in order to find critical the Department’s preliminary on the contract date and any subsequent circumstances. In this respect, NKK determination of critical circumstances changes are usually immaterial in states, the Department normally relies is not supported by the information on nature or, if material, rarely occur.’’ Id., on company-specific margins of over 25 the record. Petitioners contend that 63 FR at 32836. In contrast, NSC, NKK percent to impute knowledge of NKK’s argument for use of company- and KSC each reported that there were dumping. NKK claims that its final specific shipment data is contrary to the numerous instances of changes in terms margin, if adjusted for the alleged Department’s regulations. According to of sale between the initial order date, clerical error, will not exceed 25 percent petitioners, the Department must
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24336 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices examine imports into the United States argues, the Department should not find date of filing of the petition to as opposed to shipments, which may or critical circumstances in the final determine whether or not there were may not correlate to imports during the determination. massive imports. Further, the articles relevant period. Secondly, petitioners Second, NSC argues that the relied upon by the Department to argue that, if the Department were to use Department’s preliminary determination support the use of an earlier-than-usual shipment data, this information would of sales at less than fair value was based time frame do not support a conclusion still not be an accurate basis for analysis on adverse inferences with no basis in that KSC had reason to believe a case as this would be company-specific data, either fact or law. Specifically, NSC was being filed or likely to be filed. whereas the analysis should focus on argues that the use of facts available for Second, KSC claims that it did not have total imports from Japan. Because NKK NSC’s home market freight cost and U.S. massive imports during the ‘‘proper has not cited any authority for its theoretical weight sales was not time frame.’’ Third, KSC claims that the statement that the Department should supported by record evidence. NSC Department violated its normal practice make a company-specific critical argues that the Department cannot rely when it relied upon country-specific, circumstances finding, the Department on margins based on improper adverse rather than company-specific shipment should affirm its preliminary finding by inferences in imputing knowledge for data. Fourth, KSC argues that the using total imports from Japan as the purposes of its final determination as to Department’s preliminary critical basis for its critical circumstances critical circumstances. circumstances finding should have been determination. Finally, petitioners argue In rebuttal, petitioners argue that the negative because the ITC preliminarily that NKK and other respondents knew Department’s Policy Bulletin dated determined that there was no present that an antidumping investigation was October 7, 1998 governs the decision material injury with respect to this likely, based upon the articles in the reached by the Department. Petitioners product. KSC’s arguments with respect press placed on the record. Thus, note that NSC is incorrect in its to each of these points is discussed in petitioners argue, the Department assertion that the Department has greater detail below. unlawfully taken a substantive action should continue to disregard KSC first argues that neither the respondents’ argument to the contrary adverse to it based solely on the information contained in the petition. statute nor the regulations grant the and base its decision on record Department authority to examine a evidence. They note that, under Article 5.3 of the World Trade Organization’s (‘‘WTO’’) shipment period unrelated to either the NSC Agreement on Antidumping the filing of the petition or the preliminary NSC argues that the statute requires Department must examine the adequacy determination in measuring ‘‘massive that the Department, if it is finding of the evidence presented in the petition shipments’’ for purposes of the critical critical circumstances, must first either and whether these allegations are circumstances determination. According find a history of dumping, or impute supported by evidence. Second, to the Department’s regulations, the knowledge of dumping and of material petitioners argue that the Department determination of whether or not there injury by reason of dumped sales. NSC should not rely on NSC’s statutory has been a massive increase in imports argues that the Department’s construction argument, because as NSC is normally made based on the period preliminary finding of critical interprets the argument, the Department beginning on the date the proceeding circumstances was based on inflated would have to issue questionnaires, begins and ending at least three months margins and was contrary to law. NSC evaluate responses and calculate later. See 19 CFR § 351.216(h) and (i). argues that the Department’s final company-specific margins prior to KSC argues that the Department determination as to critical issuing a preliminary critical overstepped its authority by using a circumstances must be supported by circumstances determination. time frame disconnected from the date evidence on the record. Petitioners contend that there is no legal of filing of the petition. KSC further First, NSC argues that the basis for this argument, because the asserts that the use of any comparison Department’s reliance on allegations requirements for a preliminary critical time other than period immediately from the petition and the use of these circumstances finding are not the same following the filing of the petition is allegations to make a preliminary as those for a preliminary dumping unlawful because it contravenes the finding of critical circumstances were determination. The fact remains, purpose of the statutory provision, unacceptable precedent. NSC states that petitioners state, that the primary factor which (according to the legislative mere allegations in the petition do not reviewed for a critical circumstances history) is to deter the increase of provide sufficient support for the finding is whether there has been a exports ‘‘during the period between Department to impute knowledge based massive increase in imports. Petitioners initiation of an investigation and a on the magnitude of dumping margins argue that the existence of massive preliminary determination’’ (H. Rep. No. and injury. NSC argues that the statute imports was known at the time the 96–317 at 63 (1979). Thus, KSC argues, requires that the Department conduct a petition was filed. They further argue the proper comparison is between factual investigation and determine that that, based on this information, the shipments during the October– there is a reasonable basis to believe or statute leaves it to the Department’s December 1998 period and shipments suspect that products are being dumped discretion to decide what procedures it during the July–September 1998 period. before making a finding of critical will follow in determining whether KSC also argues that the articles relied circumstances. In conducting this there is reason to believe or suspect that upon by the Department to impute analysis, respondent argues, the dumping is occurring. knowledge of dumping involve mere Department has never before relied speculation, do not specifically refer to merely on petition allegations to form a KSC hot-rolled steel, and are not grounded in reasonable belief concerning critical KSC asserts that the Department’s fact. KSC concludes that without a circumstances. Because the preliminary critical circumstances specific allegation with respect to a Department’s preliminary determination determination contravened the statute. proceeding against hot rolled steel from was based on alleged and unsupported First, KSC argues that the Department Japan, the Department cannot attribute information from the petition, it cannot does not have the authority to use a time knowledge of a proceeding to KSC in withstand scrutiny. Therefore, NSC frame other than the one based upon the order to provide a basis for use of a
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24337 different time frame for its massive case are not consistent with the assertion that the Department was imports analysis. authorities cited. Petitioners assert that precluded from finding critical Second, KSC argues that, based on the Department’s action in this case did, circumstances because the ITC did not company-specific data of record, it did in fact, serve to deter an increase in preliminarily find present material not have massive imports during the imports during the period following injury in it preliminary injury normal time frame provided for in the initiation. determination is incorrect. First, regulations. Rather, its imports Petitioners rebut criticism of the petitioners argue that neither the statute decreased, in both quantity and value Department’s reliance on published nor its legislative history indicates that terms, during the post-petition articles for selecting an early time frame the Department must find that there is October—December 1998 period, as by pointing out that, although KSC no material injury for purposes of such compared to the pre-petition July– disputed the significance of certain determination simply because the ITC September 1998 period. Therefore, KSC articles considered by the Department in did not find present material injury. argues, the Department should reverse its determination, the articles discussed Second, the ITC may find present its preliminary finding of critical by KSC in its brief were, with one material injury in its final determination circumstances. exception, published after April 1998. even when it did not make such a Third, KSC argues that the Petitioners thus conclude that it is finding in its preliminary investigation. Department unlawfully used country- apparent that the Department did not Petitioners point out that the ITC, in its specific data rather than company- rely on these articles. Petitioners make opinion, did not actually say that it did specific data in its preliminary finding. two points in this respect. not find a reasonable indication of KSC argues that the Department failed First, petitioners contend, one report present material injury. Instead, the ITC to request company-specific import data included in an exhibit to the petition is avoided that issue entirely by moving until after the preliminary critical sufficient by itself to prove requisite directly to the threat of injury. circumstances determination, and the knowledge by KSC. Petitioners cite the Petitioners assert that this opinion is Department’s failure to obtain this report dated April 1998 by CRU Steel unusual, and that the Department might information unfairly punished KSC by Monitor. See Exhibit 3 of Petition for the reasonably wonder whether this is applying an adverse inference even Imposition of Antidumping Duties: because the ITC was carefully refusing though they were cooperating. KSC Certain Hot-Rolled Flat-Rolled Carbon- to rule out a finding of present material argues that the Department must use the Quality Steel Products From Japan, injury in a final investigation. company-specific shipment data (September 30, 1998). Petitioners assert submitted by KSC for its final that this report, respected within the Sumitomo Metal Industries determination. industry worldwide, discusses concerns Sumitomo argues that the Department Finally, KSC argues that the actually expressed by Japanese should not find critical circumstances Department’s preliminary critical producers. with respect to it in the final circumstances finding was unlawful Second, petitioners argue that, determination. Sumitomo argues that because, given the ITC’s preliminary although it is true that the other the Department chose not to investigate determination that there was no present materials included as part of the Sumitomo because of the administrative material injury, the Department could petition did not refer specifically to hot- burden to the Department, yet not reasonably impute knowledge of rolled imports from Japan, it is equally nevertheless applied its preliminary material injury, which is necessary for true that certain of these reports did affirmative critical circumstances a finding of critical circumstances under refer specifically to the likelihood of finding to imports by Sumitomo. post-URAA law when there is no history antidumping cases being filed against Sumitomo argues that, as a cooperative of dumping. KSC argues that a hot-rolled steel imports. Petitioners add non-selected respondent, it is entitled to preliminary critical circumstances that although these reports mentioned a negative critical circumstances finding determination cannot be made by the Russia, the fact that, during this period, in the final determination. See Department unless the ITC determines Japan was the second largest hot-rolled Preliminary Determinations of Critical that there was actual material injury. import supplier to the U.S. market Circumstances: Brake Drums and Brake See Preliminary Determination of Sales makes it far-fetched to imagine that Rotors from The People’s Republic of at Less Than Fair Value: Certain Cut-to- Japanese producers, like KSC, would China, 61 FR 55269, 55270 (October 25, Length Carbon Steel Plate from the infer that cases would be brought 1996). Sumitomo argues that it is the Russian Federation, 62 FR 31967, 31971 against Russia, the largest importer, but Department’s practice not to issue final (June 11, 1997). KSC states that the not Japan. Petitioners also contend that affirmative critical circumstances with Department cannot ignore the ITC injury KSC is aware that U.S. flat-rolled regard to cooperative non-selected finding. Thus, KSC argues that the producers have filed a large number of companies. For these reasons, Department should make a negative trade cases over the past two decades Sumitomo argues the Department critical circumstances finding in the and those cases have always been should find negative critical final determination. brought against multiple countries. circumstances for non-mandatory Petitioners rebut each of KSC’s four Petitioners contend that KSC’s cooperative respondents. arguments regarding the Department’s argument that the Department’s use of Department’s Position: For the preliminary determination of critical country-wide (rather than company- reasons discussed below, we continue to circumstances. First, with respect to the specific) import data for purposes of its find critical circumstances for Department’s choice of a time frame for analysis is an unjustified departure from respondent KSC and ‘‘all other’’ measuring shipments, petitioners argue the Department’s normal practice is a respondents. However, in the final that, despite KSC’s reference to various moot point because, as KSC concedes, determination, we do not find critical legal authorities, the Statement of the company-specific data submitted to circumstances with respect to NSC or Administrative Action (‘‘SAA’’), the Department shows a massive NKK. congressional reports, and Department increase in imports by KSC during the Section 735(a)(3) of the Act provides documents, KSC does not explain why period examined. that if critical circumstances are alleged, the Department’s regulation is at issue, Finally, petitioners provide two the Department will determine whether: or why the Department’s actions in this reasons why, in their view, KSC’s (A)(i) there is a history of dumping and
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24338 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices material injury by reason of dumped When examining volume and value category because it found critical imports in the United States or data, the Department typically compares circumstances for three of the four elsewhere of the subject merchandise, or the export volume for equal periods companies investigated. However, we (ii) the person by whom, or for whose immediately preceding and following are concerned that literally applying account, the merchandise was imported the filing of the petition. Under 19 CFR that approach may produce anomalous knew or should have known that the § 351.206(h), unless the imports in the results in certain cases. For example, if exporter was selling the subject comparison period have increased by at the ‘‘all others’’ rate is below the critical merchandise at less than its fair value least 15 percent over the imports during circumstances threshold, we do not and that there would be material injury the base period, we normally will not believe it would be appropriate to find by reason of such sales, and (B) there consider the imports to have been critical circumstances for the all others have been massive imports of the ‘‘massive.’’ In addition, pursuant to 19 category even if we found critical subject merchandise over a relatively CFR § 351.206(i), the Department may circumstances for a majority of the short period. use an alternative period if we find that investigated companies. Therefore, we As discussed in the preliminary importers, exporters, or producers had believe it is appropriate to address both critical circumstances finding, we are reason to believe, at some time prior to critical circumstances criteria in not aware of any antidumping order in the beginning of the proceeding, that a reaching a determination concerning the any country on hot-rolled steel from proceeding was likely. In the instant ‘‘all others’’ category. Thus, we have Japan, for purposes of this final case, to determine whether or not applied that experience to both criteria. determination. Therefore, in this final imports of subject merchandise have First, in determining whether determination we examined whether been massive over a relatively short knowledge of dumping existed, we there was importer knowledge. In period for the final determination, we looked to the ‘‘all-others’’ rate, which is determining whether an importer knew examined each selected respondents’ based on the weighted-average of the or should have known that the exporter export volumes from May–September individual rates for the investigated was selling hot-rolled steel at less than 1998, as compared to December 1997– companies. In the instant case, the ‘‘all fair value and thereby causing material April 1998 and found that imports of others’’ rate exceeds 25 percent. Thus, injury, the Department normally hot-rolled steel from Japan increased by we find importers knew or should have considers margins of 25 percent or more more than 100 percent. In this case, known that there was dumping by the and a preliminary ITC determination of petitioners argue that importers, all other companies. Similarly, as with material injury sufficient to impute exporters, or producers of Japanese hot- respondent KSC, we find that importers knowledge of dumping and the resultant rolled steel had reason to believe that an knew or should have known that injury material injury. The Department’s final antidumping proceeding was likely. We from the dumping by all other margins for KSC exceeded 25 percent. find that press reports, particularly in companies existed based on the ITC’s Therefore, we determine that importers March and April 1998, are sufficient to threat finding and the extensive press knew or should have known that KSC establish that by the end of April 1998, coverage, from early to mid-1998, of was dumping the subject merchandise. importers, exporters, or producers knew widespread lost sales and falling As to the knowledge of injury from such or should have known that a proceeding domestic prices as a result of dumped dumped imports, in the present case, was likely concerning hot-rolled imports. Second, we have evaluated the ITC preliminarily found threat of products from Japan. See Critical whether there are ‘‘massive imports’’ for material injury to the domestic industry Circumstances Memo, dated Apr. 28, the ‘‘all others’’ companies in terms of due to imports of hot-rolled steel from 1999. Accordingly, we examined the both the imports of the investigated Japan. Therefore, we also considered increase in import volumes from May— companies and country-specific import other sources of information, including September 1998 as compared to data. An evaluation of the company- numerous press reports from early to December 1997—April 1998 and found specific shipment data provided by mid-1998 regarding rising imports, that imports of hot rolled steel from respondents indicates that all three falling domestic prices resulting from Japan increased by more than 100 mandatory respondents had massive rising imports and domestic buyers percent. Based on our analysis, we find imports and that, on average, imports shifting to foreign suppliers. For a full that there was a massive increase in increased by over 50 percent during the discussion of the evidence on the record imports with respect to KSC. comparison period. In addition, where, see Final Critical Circumstances Memo, With regard to ‘‘all others’’ (i.e., as in the instant case, the U.S. customs dated Apr. 28, 1999. Based on this companies that were not analyzed in data also permit the Department to information, we find that importers this investigation, e.g., Sumitomo), we analyze overall imports of the product at knew or should have known that there have reconsidered our Preliminary issue, we will consider whether those would be material injury from the Determination finding of critical data are consistent with a finding of dumped merchandise. circumstances. For the final massive imports overall. Again, in the Because we have found that the first determination we conducted the instant case, aggregate imports of hot- statutory criterion is met with regard to following analysis, based on the rolled steel during the comparison KSC, we must consider the second experience of the investigated period increased by more than 100 statutory criterion: whether imports of companies, to determine whether a percent. Thus, we find that imports the merchandise have been massive finding of critical circumstances is from uninvestigated exporters were over a relatively short period. According appropriate with respect to massive during the relevant period. to 19 CFR § 351.206(h), we consider the uninvestigated exporters. See Notice of Therefore, based on these factors, the following to determine whether imports Final Determination of Sales at Less Department determines that there are have been massive over a relatively than Fair Value: Certain Steel Concrete critical circumstances with regard to all short period of time: (1) volume and Reinforcing Bars from Turkey, 62 FR other imports of hot-rolled steel from value of the imports; (2) seasonal trends 9737, 9741 (March 4, 1997) (Rebars from Japan. For a complete discussion of the (if applicable); and (3) the share of Turkey). In Rebars from Turkey, the data examined, see the Department’s domestic consumption accounted for by Department found critical Final Critical Circumstances Memo, the imports. circumstances for the ‘‘all others’’ dated April 28, 1999.
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Comment 3: NKK’s Home Market trading companies’ end-user sales, NKK and the second claim is problematic Levels of Trade. engages in significantly less selling because the higher level of indirect In its case brief submitted to the activity related to the development of selling expenses may be typical for a Department, NKK argues that in the new users, the assessment of user reseller. Therefore, petitioners assert preliminary determination, the demand, the financing of steel that, as in the Preliminary Department incorrectly concluded that purchases by end-users, the provision of Determination, the Department should NKK sells at one level of trade in the inventory management and continue to deny NKK any LOT home market. NKK asserts that, prior to warehousing, and the management of adjustment. the Department’s preliminary delivery. NKK’s affiliated trading Petitioners argue that although NKK determination, NKK had provided companies, on the other hand, engages claims that it never provided inventory supporting qualitative evidence to to a high degree in the aforementioned warehousing and management for its confirm that in the home market sales selling activities. sales to unaffiliated trading companies, by NKK to unaffiliated trading NKK argues that there is a substantial and rarely provided such services to companies and end-users and sales and meaningful difference between end-users, the record shows that NKK made by affiliated trading companies selling activities performed by NKK and provided high level delivery take place at two distinct levels of trade. those performed by affiliated resellers/ management services on sales to NKK asserts that section 773(a)(1)(B) trading companies. NKK points out that unaffiliated trading companies and also of the Act requires the Department to the Department’s own regulations contradicts NKK’s claim as to inventory compare prices, as is practicable, at the establish that a substantially different warehousing. Therefore, for the 4 ‘‘mill’’ same level of trade. Furthermore, NKK selling function results with additional functions and 2 of the 5 ‘‘trading asserts that the Department’s own layers of selling activities. See company’’ functions, (i.e., for 6 out of regulations describe that sales are made Preamble, 62 FR at 27371. NKK asserts the 9 categories of selling functions that at different levels of trade when sales that its affiliated trading companies also NKK performs) NKK’s selling functions are made at different marketing stages. incur comparatively greater risk as a on sales to unaffiliated customers and See 19 C.F.R. § 351.412(c)(2). NKK result of more active and diverse selling sales by its trading company to end- argues that two levels of trade can be, activities. NKK, on the other hand, users are substantially the same. In light but are not always, based on substantial chooses to limit its own risk by selling of these facts, petitioners argue that the differences in selling activities. NKK 93 percent of its merchandise through Department should continue to find one further argues that the Department must affiliated trading companies and makes level of trade in the home market. determine in its analysis if levels of sales directly to end-users only in the Department’s Position: We do not trade are meaningful. See Preamble, 62 case of well-established customers. agree that NKK’s home market sales are FR at 27371. Finally, NKK argues that its indirect made at two distinct levels of trade. In NKK reminds the Department that in selling expense ratio was significantly accordance with section 773(a)(1)(B)(i) its initial section A questionnaire less than that of one of its trading of the Act, to the extent practicable, we response it presented three distinct companies during the POI. This, determine NV based on sales in the channels of trade in the home market according to NKK, is consistent with the comparison market at the same level of and argued that the first two channels preamble to the Department’s trade (‘‘LOT’’) as the EP or CEP to end users and sales to unaffiliated regulations, and definitively supports transaction. The NV LOT is that of the trading companies, should be the notion that NKK and its affiliated starting price sales in the comparison consolidated into one level of trade. The trading companies sell at two distinct market or, when NV is based on CV, that other level of trade, sales to affiliated levels of trade in the home market. See of the sales from which we derive SG&A trading companies, is distinct from sales Id. and profit. to unaffiliated end-users and trading Petitioners assert that, having found To determine the LOT of a company’s companies. NKK contends that the itself unable to quantify pricing sales (whether in the home market or in Department, in its level of trade analysis differences for the sake of claiming a the U.S. market), we examine stages in memorandum for the preliminary LOT adjustment, NKK is now claiming the marketing process and selling determination, ignored the selling that the home market is actually two functions along the chain of distribution category in which NKK sells LOTs, and that U.S. sales should be only between the producer and the merchandise to unaffiliated trading matched to the closer level. Petitioners unaffiliated customer. See Notice of companies. NKK asserts that these sales further assert that NKK’s argument that Final Determination of Sales at Less account for 90 percent of total sales to the Department’s chart, used for Than Fair Value: Certain Cut-to-Length unaffiliated customers during the period comparison of selling activities, is Carbon Steel Plate from South Africa of investigation. NKK believes that this inaccurate should be accorded no (‘‘Certain Cut-to-Length Carbon Steel is a significant error. weight, since pursuant to § 351.412(c)(2) Plate from South Africa’’), 62 FR 61731 NKK argues that there is a significant of the Department’s regulations, the (November 19, 1997). difference between the selling activities ‘‘substantial differences in selling NKK sells subject merchandise in the of NKK and the selling activities of its activities are a necessary, but not home market through two channels of affiliated resellers. NKK asserts that sufficient, condition for determining distribution: one channel involves sales while it performs a high degree of that there is a difference in the stage of by NKK to unaffiliated customers selling activities in sales to end-users, marketing.’’ Finally, petitioners rebut (including both end-users and trading this type of sale is a small part of this NKK’s claims that (1) its affiliate’s high companies); the second channel level of trade. NKK argues that, in degree of performance of selling involves sales by NKK’s affiliate to general, its selling activities for total functions yields a higher level of unaffiliated customers. For the sales are smaller than the selling exposure for them and NKK can thus preliminary determination, the activities of its affiliated resellers. See diffuse risk and that (2) there is a Department found that NKK’s sales to Level of Trade Exhibit, attached to difference in indirect expenses ratios these three types of home market Verification Report, dated March 26, between itself and its trading company customers involved essentially the same 1999. NKK argues that when its end- by asserting that, whether or not it is level of selling functions. After a careful user sales are compared to its affiliated true, NKK’s first claim is unquantifiable, analysis of the information on the
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24340 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices record, we continue to find that there continue to find that there is one LOT two levels of trade in the home market. was not a substantial difference in the in the home market. According to the respondent, KSC’s selling functions performed by NKK in Comment 4: KSC’s CEP Offset. section A response explains that there making sales to its unaffiliated Petitioners argue that the Department are at least three marketing stages for its customers and those associated with should not grant KSC a CEP offset to the CEP sales. In addition, KSC has sales by NKK’s affiliated company to its normal value of its home market sales consistently explained, in its section A, unaffiliated customers. Therefore, we in the final determination since KSC has Supplemental section A, and section B continue to find that there is one level failed to factually establish its responses, that its CEP sales were at a of trade in the home market. entitlement to a CEP offset. different level of trade than its home As discussed in the Department’s Furthermore, petitioners argue that market sales through Kawasho. In fact, preliminary Level of Trade Memo, dated KSC’s statements on the record actually the respondent states that KSC’s home February 12, 1999, the Department refute its claim for a CEP offset. market sales through Kawasho are at a reviewed the selling functions Petitioners claim that KSC has not more advanced level of trade than its performed with respect for each of the established sufficiently that its home CEP sales because these home market customer categories. As indicated by market and CEP sales through its sales are at a more advanced stage of NKK in its January 19, 1999, affiliates, Kawasho Corporation and distribution and farther removed from supplemental section A response, NKK Kawasho International, are at different the factory. Respondent asserts that, collapsed sales directly to unaffiliated level of trades. For instance, petitioners throughout the immediate investigation, companies (end-users and others) into claim that KSC originally stated in its KSC has supplied the Department with one level of trade. In conducting its section A response that it had two levels information, in its Supplemental analysis the Department reviewed the of trade in the home market and the responses and during verification, information placed on the record and same two levels of trade in the United showing that it has to perform more and did not ignore the level of selling States market. Petitioners state that KSC different selling activities and services activity for sales to unaffiliated trading only claimed that its home market and for its home market sales than for its companies, as evidenced by the U.S. sales to unaffiliated trading CEP sales. Furthermore, respondent inclusion of this category in the Level of companies were at a less advanced stage argues that the difference in the number Trade Memo. in the marketing process than its sales of employees for the different markets Second, NKK argues that there are to its affiliates. Petitioners also claim confirms that more is required to sell in substantial differences in the selling that KSC did not respond to Department the home market than to the CEP level activities performed by NKK and the inquiries that KSC ‘‘explain why [it] of trade. Respondent concludes by selling activities of its affiliated considers the home market level of trade stating that since there is no comparable resellers. In the instant case, in more advanced than the U.S. level of level of trade in the home market, KSC conducting its level of trade analysis, trade to warrant a CEP offset if is unable to calculate a trade adjustment the Department compared the selling necessary.’’ for its CEP sales and instead requests functions performed for sales in the Petitioners also argue that the fact that the Department to grant a CEP offset home market to the first unaffiliated all sales to both markets were pursuant to section 772(a)(7)(B) of the customer. As evidenced by the manufactured to order and were to the Tariff Act (19 U.S.C. § 1677b(a)(7)(B)) discussion in the Department’s Level of same categories of customers indicates and 19 CFR § 351.412(f). Trade Memo (referenced above), the that there are no differences in levels of Department’s Position: We disagree information on the record indicates that trade between home market and the with petitioners that KSC’s CEP offset the selling functions and activities United States. Finally, petitioners claim should be denied. In accordance with performed by NKK on sales to that KSC’s descriptions of its selling section 773(a)(1)(B)(i) of the Act, to the unaffiliated customers as compared to activities and services have been extent practicable, we determine NV the selling functions and activities inconsistent and thus unreliable. As a based on sales in the comparison market performed by both NKK and its affiliate result, petitioners argue that KSC has at the same level of trade (‘‘LOT’’) as the on sales to unaffiliated customers do not not met the required burden of proof to EP or CEP transaction. The NV LOT is vary on a qualitative basis. NKK’s factually demonstrate that its home that of the starting price sales in the argument that there are differences market sales and CEP sales were made comparison market or, when NV is between these selling functions is not at different levels of trade. Thus, the based on CV, that of the sales from supported by the evidence on the Department should not grant KSC a CEP which we derive SG&A and profit. For record. Once again, in the Department’s offset for the final determination. CEP sales, the Department makes its Level of Trade Memo we discussed the Respondent contends that the analysis at the level of the constructed level of service provided for each Department’s decision to grant KSC a export sale from the exporter to the channel of distribution and we found no CEP offset is in accordance with law affiliated importer. distinction in the levels of service and is supported by substantial Because of the statutory mandate to provided. NKK further argues that there evidence on the record. As legal take level of trade differences into are substantial differences in the authority, respondent relies upon consideration, the Department is amount of selling functions associated section 772(a)(7)(B) of the Tariff Act (19 required to conduct a LOT analysis in with the two groups of sales. However, U.S.C. § 1677b(a)(7)(B)) and the SAA at every case, regardless of whether or not the Department finds that, while the 831. Respondent argues that, contrary to a respondent has requested a LOT record indicates some differences in the petitioners’ assertions, the facts on the adjustment or a CEP offset for a given amount of certain functions performed, record support KSC’s claim for a CEP group of sales. To determine whether these differences are not so substantial offset. Respondent asserts that NV sales are at a different LOT than EP as to warrant finding different LOTs on petitioners misread KSC’s response to or CEP sales, we examine stages in the this basis alone. Therefore, because the the Department’s section A marketing process and selling functions customer types are the same, the types questionnaire and that petitioners are along the chain of distribution between of selling functions are the same, and incorrect in stating that KSC asserted the producer and the unaffiliated there are not substantial differences in that there were two levels of trade in the customer. If the comparison market the level of functions performed, we U.S. which correspond exactly to the sales are at a different LOT, and the
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After an Finally, for CEP sales, if the NV level is from and less advanced than KSC’s examination of the record, the more remote from the factory than the home market levels of trade and that the Department has determined that NKK’s CEP level and there is no basis for data of record do not permit it to, overrun sales are sold at a lower price, determining whether the differences in instead, make a LOT adjustment based sold in smaller quantities overall and the LOTs between the NV and the CEP on the effect of the LOT difference on sold to fewer customers than product sales affects price comparability, we price comparability. that is not overruns. Second, based on adjust NV under section 773(A)(7)(B) of Comment 5: Overruns. the results of verification, where the the Act (the CEP offset provision). See NKK asserts that the Department Department examined overrun sales, we Certain Cut-to-Length Carbon Steel Plate should consider its sales of overruns in determined that these sales are made from South Africa, 62 FR at 61731. its calculation of home market price only after they cannot be applied to because such sales meet the In the Preliminary Determination, the other sales and after a significant time Department’s criteria for sales in the lag follows production as compared to Department made a CEP offset ordinary course of trade. NKK argues other sales in the normal course of adjustment to the normal value of KSC’s that (1) its invoice coding system business. The Department concedes that sales that were compared to CEP sales identifies sales as overruns; (2) its NKK’s overruns are sold as prime in the United States, because the overruns are sold for the same uses as merchandise; however, this sole factor Department preliminarily found that all ordinary production, and unlike non- does not enable these sales to be of KSC’s home market sales were made prime merchandise, the specific product considered in the ordinary course of at levels of trade different from and characteristics are maintained and used trade. Third, the Department found that more advanced than the level of trade of to determine whether overruns meet a there were sufficient matches to non- KSC’s CEP sales in the United States, customer’s needs, and there is no overrun prime merchandise sold in the and there is no basis for determining physical difference between overruns ordinary course of trade, which is the whether the differences in the LOTs and ordinary production; and (3) the Department’s preference in determining between the NV and the CEP sales number of customers purchasing matches between U.S. sales and home affects price comparability. See Level of overruns and the volume of overruns market sales. Based on these factors, the Trade Memo, dated February 12, 1999. purchased are similar to ordinary sales Department continues to exclude In particular, the Department found that according to the Department’s overrun overrun sales from its analysis. KSC performed fewer and different methodology. Comment 6: Department’s Arm’s selling functions in connection with Petitioners, in rebuttal, argue that the Length Test. CEP sales to Kawasho International and Department properly excluded the NKK argues that the Department Kawasho Corporation than in overruns in its preliminary should use a different arm’s length test connection with home market sales to determination margin calculation. than the ‘‘99.5 percent’’ test that it its unaffiliated customers. For example, Furthermore, petitioners argue that normally uses and used in the the Department found that KSC application of the Department’s own preliminary determination. The provided a high level of warehousing, standards for determining whether Department’s current policy is to treat processing, freight arrangement, and overrun sales are in the ordinary course home market sales prices to an affiliated payment collection services in the home of trade supports the Department’s customer as having been made at ‘‘arm’s market, but did not provide the same decision to exclude overruns from its length’’ (and therefore useable in the level of services on its CEP sales to the margin calculation. See, e.g., Circular normal value calculation) if prices to United States. Further, the Department Welded Non-Alloy Steel Pipe from the that affiliated purchaser are, on average, found that it was not possible to Republic of Korea; Preliminary Results at least 99.5 percent of the prices quantify a LOT adjustment based on the of Antidumping Duty Administrative charged to unaffiliated purchasers. See available data. The fact that KSC Review, 62 FR 64559, 64561 (December Preamble, 62 FR at 27355. NKK states originally identified a different LOT 8, 1997) referencing, Laclede Steel Co. v. that the Department has not codified its pattern is not determinative. As United States, 18 CIT 965, (1995); ‘‘99.5 percent’’ arm’s length test explained above, the Department Carbon Steel Flat Products from Korea, methodology, and therefore suggests conducts its own LOT analysis, rather 64 FR at 12941–42. Petitioners argue what it believes to be a more accurate than merely accepting the assertions of that, by the Department’s standards, arm’s length test. NKK claims that both the parties. Similarly, just as sales to a NKK’s overrun sales are outside the generally and on the fact of this case, different customer category is ordinary course of trade based on the the Department’s current test produces insufficient, by itself, to establish a ratio of overrun sales to home market distorted results. NKK argues that there different level of trade, all sales to the sales, the number of overrun customers is no factual basis on which to conclude same customer category are not in relation to the total number of that sales to one of its affiliated trading necessarily sales made at the same level customers, the average price of overrun companies were not made at arm’s of trade. See Preamble to the sales compared to commercial length prices. Department’s regulations, 62 FR at production sales, the relative NKK describes two variations of the 27371. Finally, the Department is profitability of overrun sales, and the test used in past dumping investigations satisfied that it has sufficient reliable quantity of overrun sales compared to and argues that both variations are information to reach a decision as to the the total quantity of commercial sales. methodologically flawed. Specifically, levels of trade at which KSC and its Petitioners claim that no one factor NKK argues that the current arm’s affiliates sell subject merchandise. among these standards is dispositive, length test methodology is flawed Furthermore, the Department verified and, finally, that the Department has because the application of a single fixed
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24342 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices ratio ( ‘‘99.5 percent’’) to CONNUM- Ltd. v. United States, 54 F. 3d 736, 744 unreasonable. The CIT has already specific or weighted-average related/ (Fed. Cir. 1995). rejected the idea that the ‘‘99.5 percent’’ unrelated customer price ratios distorts Petitioners specifically reject NKK’s test is unreasonable because it does not commercial reality by not taking into proposed arm’s length test. Petitioners take into account price variance. See account actual pricing practices. NKK argue that NKK’s proposed alternative Usinor Sacilor v. United States, 872 F. references several types of situations in test is based entirely on the idea of Supp. at 1004. which it argues the current test using standard deviations to account for With respect to NKK’s concern of produces anomalous results. pricing variability. Petitioners, citing applying the arm’s-length test on a NKK also proposes a new approach statistical authorities, assert that the customer basis, we note that the involving several changes to its current application of a mean/standard question underlying the arm’s-length test. First, NKK asserts that the deviation analysis only works when test is whether affiliation between the Department should abandon its there is a symmetrical, bell-shaped seller and the customer has (in general) methodology of creating an ‘‘overall frequency distribution, and claim that affected pricing. Because affiliation is customer percent-ratio aggregation’’ NKK’s data sets do not fit this model. the result of relationships between and, instead, base its arm’s length test Petitioners reject the accuracy of the firms, the focus of the arm’s-length test on CONNUM-specific sales data. In sample scenarios that NKK advances in is the customer, not a particular short, NKK argues that the arm’s length its case brief. For example, petitioners product. For this reason, the Department test should be applied on a CONNUM- argue that one of NKK’s case brief makes one up-or-down call on pricing to specific basis, rather than a customer- scenarios misrepresents the facts of a an affiliated customer: either there is specific basis. Second, NKK argues that, standard deviation-based analysis to the arm’s-length pricing or there is not. instead of using an ‘‘inflexible and extent that NKK does not establish the However, under NKK’s proposed mechanical’’ 99.5% of the mean for a standard deviation for unrelated prices. connum-by-connum approach, benchmark to determine arm’s length Petitioners assert that NKK’s proposed affiliation could be found to matter for sales, the Department should instead arm’s length test is over-inclusive, and some connums, but not for others, even adopt a test based on standard statistically inaccurate; therefore, they though the customer in both cases is the deviations. Such a test, according to argue, it should be dismissed by the same. To support it’s proposal, in NKK, would address the variability and Department. exhibit B to it’s submission dated April Department’s Position: The magnitude of pricing data. Specifically, 12, 1999, NKK claims that the sales to Department has not adopted NKK’s when the mean price for the CONNUM an affiliated customer, NKK Trading of sold to the related customer is within proposed arm’s length test for purposes certain CONNUMs were considered not one standard deviation of the mean of this investigation. As NKK has to be at arm’s length prices although the price to the unrelated customer, the acknowledged, determining whether prices for over 50% of those sales Department should consider that sales home market sales made to affiliated exceeded the mean price to the of that CONNUM to that customer are at parties are made at arm’s length is a unaffiliated customers for these arm’s length. complex process which the Department NKK argues that its proposed test considered in some detail during the connums. However, the relatively small would not be difficult to apply, and most recent round of regulatory share of total sales to NKK Trading for includes proposed SAS programming. revisions. At that time, the Department which these connums account is Finally, NKK asserts that if the decided that it would not codify the perfectly consistent with the Department adopts an arm’s length current test, but would continue to Department’s finding that NKK’s analysis methodology that applies a apply it unless and until it developed a affiliation with NKK Trading has in standard-deviation test on a CONNUM- new method, in which case the new general affected price. specific basis, the record will show that methodology would be described and Additionally, NKK presents several NKK’s sales to affiliated trading announced in a policy bulletin. See theoretical situations under the companies were, in fact, at arm’s length. Preamble, 62 FR at 27355. The Department’s current approach, where Petitioners, in rebuttal, argue that Department’s ‘‘99.5 percent’’ arm’s NKK claims that sales could be there is no reason for the Department to length test methodology is well excluded for reasons unrelated to abandon its current arm’s length test. established and the CIT has repeatedly affiliation. In particular, NKK argues Specifically, petitioners argue that the sustained the methodology. See Micron that a statistical approach would reduce Department has considerable discretion Technology Inc. v. U.S., 893 F Supp. 21 the likelihood of testing error when in determining when to exclude related (CIT 1995) and Torrington Co. v. United pricing to affiliated and unaffiliated party sales in the calculation of normal States, 960 F. Supp. 339 (CIT 1997). customers is the same (i.e., the error of value. See, e.g., Usinor Sacilor v. United An agency’s interpretation of the finding that affiliation has affected States, 872 F. Supp. 1000, 1004 (CIT statute it administers must be accorded prices when, in fact, it has not). 1994). Furthermore, petitioners argue substantial weight. Thus, the However, NKK does not address the that the courts will uphold the Department’s well-established practice concern that, by lowering the threshold Department’s arm’s length test unless can be sustained as long as it is for accepting affiliated party sales under respondents can prove that the test is ‘‘sufficiently reasonable.’’ See American their statistical approach from the unreasonable and distorts price Lamb Co. v. United States, 785 F.2d Department’s current standard, NKK’s comparability. See SSAB Svenskt Stal 994, 1001 (Fed. Cir. 1986). In Usinor test would increase the likelihood of AB v. Bethlehem Steel Corporation, 976 Sacilor v. United States, 872 F. Supp. at testing error when pricing to affiliated F. Supp. 1027, 1030–1031 (CIT 1997); 1004, the Court of International Trade and unaffiliated customers is not the Micron Technology Inc. v. United Tests, stated that it would uphold the same (i.e., the error of finding that 893 F. Supp. 21, 38 (CIT 1995). Department’s ‘‘99.5 percent’’ test unless affiliation has not affected price when, Petitioners argue that the burden of it was shown to be unreasonable. While in fact, it has). Given this concern with persuasion, with respect to the theory NKK has proposed an alternative NKK’s proposed approach, the that the Department’s arm’s length test methodology based on a statistical Department continues to believe that the distorts price comparability, falls on the approach, it has not demonstrated that ‘‘99.5 percent’’ test imposes a reasonable respondent. See NEC Home Electronics the current methodology is requirement on affiliated-party prices:
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Therefore, in the final freight expenses for home market sales verified that NSC procures inland determination, we have utilized NSC’s of subject merchandise because the freight services at arm’s length prices, reported home market freight expenses reported expenses are in accordance and that NSC had properly reported in the calculation of normal value. with Departmental methodology, are these expenses. Comment 8: NKK’s Home Market consistent with the company’s NSC argues that, under the Freight Costs. accounting practices, and were antidumping law, the Department shall Petitioners assert that, according to substantiated at verification. See reduce the normal value price by the NKK, the company does not track actual Verification Report, dated March 26, costs incurred to bring the subject delivery charges on an individual 1999. NKK has reported home market merchandise from the original place of shipment basis; thus, it calculated its freight in accordance with its shipment to the place of delivery to the reported movement costs in the home accounting system and provided the purchaser in order to achieve an market based on the way in which a data on a product, transportation-type undistorted fair value comparison. See particular product was most likely and destination-specific basis. Based on section 772(c)(2)(A); SAA at 4040. NSC transported. Petitioners note that NKK, its findings at verification, the argues that the Department has allowed late in the process, disclosed that the Department determined that respondents to deduct the full expense reported delivery terms, for 19 percent respondent’s reported freight costs for of inland freight services provided by of its transactions, were incorrect. In home market sales of hot-rolled steel are affiliates unless the Department cannot addition, NKK also revealed that a not distortive, and provide a reasonable establish that the services were not computer programming error resulted in estimate of actual transaction-specific purchased in an arm’s length the wrong method of transportation freight expenses. Therefore, we are transaction. See Notice of Final being reported for a full 13 percent of granting NKK a home market freight Determinations of Sales at Less than its home market sales. Petitioners argue adjustment for sales of subject Fair Value: Certain Hot-Rolled, Cold- that, in light of the numerous errors in merchandise. Rolled, and Corrosion Resistant Carbon NKK’s reporting of movement expenses, Comment 9: NSC’s U.S. Sales. Steel Flat Products and Certain Cut-to- NKK has failed to demonstrate that (1) Petitioners contend that certain of Length Carbon Steel Plate from France, its method for allocating its home NSC’s U.S. sales, those made through an 58 FR 37125, 37132 (1993); Certain Cold market movement expenses does not affiliated U.S. reseller and reported as Rolled Carbon Steel Flat Products from cause inaccuracies or distortion and (2) export price (‘‘EP’’) sales, are Korea: Final Results of Antidumping it is entitled to an adjustment for constructed export price (‘‘CEP’’) sales Duty Administrative Review, 63 FR 781, movement expenses in the home and that adverse facts available should 788 (January 7, 1998); Steel Pipe from market. Therefore, petitioners assert be applied to these sales. Petitioners Korea, 63 FR at 32,839; see also Gray that, at minimum, the Department state that NSC was not forthright with Portland Cement and Clinker from should deny NKK’s reported its explanation of the U.S. reseller’s Mexico: Final Results, 63 FR 12764, adjustments for movement expenses for functions in the sales process, as the 12780 (1998). certain specific sales. Department found that the reseller NSC states that it ‘‘confirmed’’ prior NKK asserts that it reported, in its performed many more functions than to verification that these services from original and supplemental questionnaire were originally outlined in the affiliates were purchased at arm’s length responses, that it does not retain questionnaire responses. More prices by providing freight charts and transaction specific movement specifically, petitioners believe that the explaining that it paid the same rates to expenses. Instead, using its monthly findings at verification demonstrate the affiliates and unaffiliates. NSC argues summaries, NKK determined an average involvement of the reseller in the that the Department verified that NSC per-ton movement expense for each negotiation of the substantive terms of paid arm’s length prices to affiliated and category of transportation, as well as by sales, such as prices. Furthermore, non-affiliated freight suppliers, and that each method of transportation. petitioners assert that NSC’s claim that NSC reported its inland freight charges In addition, NKK argues, that the reseller was merely a processor of accurately. See Verification Report at pursuant to the Department’s practice, a information and a communication link 14–15, dated March 26, 1999. NSC week before verification NKK submitted is untenable. In addition, petitioners concludes that, therefore, the new revised databases. The Department argue that because NSC failed to report Department must make a deduction for accepted and verified the accuracy of ‘‘significant facts’’ regarding the NSC’s home market inland freight the method for allocating these rates to reseller’s role in the sales process the expenses when calculating normal value specific transactions, and tested the Department should use facts available. for the final determination. reported movement expenses in 45 Petitioners contend that NSC withheld Department’s Position: We agree with sample sales transactions. No information from the Department, failed NSC. The Department has allowed a discrepancies were found. Furthermore, to provide information in a timely deduction for home market freight NKK asserts that, contrary to what manner and impeded the proceeding. expenses because NSC reported its petitioners alleged in both in their pre- Lastly, petitioners have requested that freight expenses in accordance with verification comments and briefs, the the Department use the highest Departmental methodology and the Department verified that the sales terms calculated margin for NSC’s U.S. sales expenses were verifiable. While NSC’s code did match the claim of a as facts available. responses to the Department’s movement expense. Therefore, NKK’s NSC argues that verification questionnaires did not demonstrate that asserts that its methodology was reliable confirmed the facts underlying the NSC had procured inland freight and accurate. NKK has successfully Department’s preliminary decision that
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NSC’s U.S. sales were properly point of contact for the U.S. unaffiliated Indus., Ltd. v. United States, 15 F. Supp. characterized as EP sales. NSC states customer, or that it played the primary 2d 807, 812 (CIT 1998). Furthermore, that the sales meet criteria for EP sales role in generating the sale by bringing NSC argues that the U.S. reseller was in established in Mitsubishi Heavy Indus., the customer to the foreign producer, constant communication with the Inc. v. United States, 15 F.Supp. 2d 807, the Department has found that the Japanese reseller and that messages 812 (CIT 1998) (citing PQ Corp. v. affiliate’s role in the sales process is during the sales negotiations document United States, 652 F.Supp. 724, 731 significant. See Stainless Steel Plate in that the U.S. reseller had no authority to (CIT 1987), and affirmed in AK Steel Coils from the Republic of Korea, 64 FR make decisions without the consent of Corp. v. United States, No. 97–05– 15444, 15453 (March, 31, 1999); see also the Japanese reseller. NSC contends that 00865, 1998 WL 846764, at *6 (CIT Notice of Final Determination of Sales the U.S. reseller acted as a 1998). at Less Than Fair Value: Extruded communication link, which is a role NSC argues that if a transaction meets Rubber Thread from Malaysia: Final that U.S. affiliates may play in EP sales. these criteria, the Department will treat Results of Antidumping Duty See AK Steel Corporation v. United the sales as EP because the routine Administrative Review, 64 FR 12967, States, 34 F. Supp. 2d 756 (CIT 1998); selling functions of the manufacturer 12971 (March 16, 1999); Carbon Steel see also NSC U.S. Verification have been relocated geographically from Flat Products from Korea, 64 FR at Memorandum, dated March 26, 1999, at the selling country to the United States. 12927. Petitioner also argues that the Exhibit 4. In sum, NSC argues that at no See Koenig & Bauer-Albert AG v. United Department has found that where the point did the affiliated U.S. reseller States, 15 F. Supp. 2d 834, 352 (CIT U.S. affiliate participates in make any decisions with regard to the 1998). NSC adds that, in such negotiations, its role is elevated beyond terms of sale without first consulting the circumstances, the EP sales are in effect a processor of documentation or a Japanese reseller. Finally, NSC contends made directly to the unrelated buyer communications link. Petitioner argues that if the U.S. reseller had authority to because the U.S. affiliate has no this is true even where the U.S. affiliate negotiate terms of sale the documented independent function. The remainder of negotiates along with the foreign correspondence between the U.S. and NSC’s argument cannot be recreated in producer (Small Diameter Circular Japanese resellers would not have a public summary. Seamless Carbon and Alloy Steel occurred. Thus, the U.S. reseller was Petitioners rebut NSC’s contention Standard Line and Pressure Pipe from simply a conduit for communication. that the Department should not use Germany: Preliminary Results of adverse inferences with regard to NSC’s Department’s Position: We disagree Antidumping Duty Administrative with petitioners that NSC’s U.S. sales sales made through its affiliated U.S. Review, 62 FR 47446, 47448 (September reseller. The petitioners cite to the should be treated as CEP sales. The 15, 1997), reserved the right to approve statute defines export price as the price Department’s Verification Report which all orders, id. or limited the affiliate’s shows that the U.S. reseller negotiated at which the subject merchandise is first ability to negotiate prices within certain terms of sale with customers. Petitioners sold (or offered for sale) to an ranges, Cut-to-Length Carbon Steel Plate further argue that NSC’s arguments unaffiliated purchaser before the date of from Belgium: Preliminary Results of ignore the U.S. reseller’s role as verified import by the exporter outside the Antidumping Duty Administrative by the Department. Additionally, United States. In contrast, CEP is the Review, 62 FR 48213, 48214–15 (1997); petitioners state that due to the reseller’s price at which the subject merchandise Certain Cut-to-Length Carbon Steel Plate role in the ‘‘negotiations and base price is first sold (or offered for sale), before from Germany: Final Results of proposals’’ the sales should be deemed or after the date of import, in the United Antidumping Duty Administrative CEP. Furthermore, petitioners contend States by or for the account of the Review, 62 FR 18390, 18391–92 (1997)). that because NSC did not describe the exporter or by a seller affiliated with the full range of the reseller’s role and the Petitioners argue that where the U.S. exporter to an unaffiliated purchaser. Department consequently does not have affiliate’s role is not incidental or Thus, sales made prior to import can be all of the information necessary with ancillary, CEP treatment is appropriate. either EP or CEP, with the former being which to calculate a margin for CEP See Industrial Nitrocellulose from the sold by the exporter or producer outside sales, the Department should find United Kingdom: Final Results of the United States and the latter being adverse inferences and use the highest Antidumping Duty Administrative sold by someone in the United States calculated margin for these sales. Review, 64 FR 6609, 6611 (February 10, who is selling for the account of the Petitioners argue that the Department 1999). Petitioners cite the U.S. exporter or is affiliated with the finds that CEP treatment is justified verification report in support of their exporter. In cases in which both the where a U.S. affiliate plays a significant argument that CEP is appropriate for exporter and a U.S. affiliate or a party role in soliciting business and certain of NSC’s U.S. sales, and argue in the United States acting on the maintaining customer contacts, or that application of facts available is exporter’s behalf are involved in the participates in the negotiation of sales justified as well, based NSC’s failure to sales transaction, a case-by-case price to the extent that it is more than provide complete information on these determination must be made, based on a processor of sales-related circumstances. the facts associated with the documentation or a communications In its rebuttal, NSC argues that the transactions at issue, to determine link. See Certain Cold-Rolled and Department should continue to treat whether such sales are properly Corrosion-Resistant Carbon Steel Flat NSC’s sales through its affiliated U.S. characterized as EP or CEP sales. Products from Korea: Final Results of reseller as EP sales. NSC contends that Normally, when a party in the United Antidumping Duty Administrative the affiliated U.S. reseller acted as a States is involved in the sale to the first Reviews, 63 FR 13170, 13172 (March 18, communication link between the unaffiliated customer, the sales are 1998). Petitioners argue that, contrary to affiliated Japanese reseller and the U.S. properly treated as CEP sales. However, NSC’s assertions, the facts in this case customer. NSC states that the U.S. the Department has a long history of justify classifying certain of NSC’s sales reseller acted ‘‘only as a processor of recognizing so-called ‘‘indirect EP as CEP. sales-related documentation and a sales,’’ which are sales made by an Petitioners also note that where the communication link with the unrelated exporter, with the party in the United U.S. affiliate acts as the first and only U.S. buyer.’’ See Mitsubishi Heavy States performing only certain ancillary
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Petitioners rely upon whether (1) the merchandise is not Verification also confirmed the Ferrosilicon from Brazil: Amended Final inventoried by the importer, (2) the sale accuracy of information NSC provided Results of Antidumping Duty is made through a customary on the record with respect to its Administrative Review (‘‘Ferrosilicon commercial channel for sales of this performance of other support functions from Brazil’’), 62 FR 54085, 54086 merchandise, and (3) the affiliated related to these U.S. sales, including (1997), where the Department amended importer acts only as a processor of conveying an initial offer to bid, issuing its final results in order to use the U.S. sales-related documents and as a certain sales documentation, and dollar-denominated gross unit price, communications link with the exporter. assisting in arranging the transport of and on Notice of Final Determination of See, e.g., Du Pont, 841 F. Supp. at 1248– the merchandise from Japan to the Sales at Less Than Fair Value: Stainless 50; AK Steel, 1998 WL 846764 at *6. customer. The affiliate also pays U.S. Steel Wire Rod from Japan, 63 FR Only when all three criteria are met import duties and certain transportation 40434, 40446–7 (1998), where the does the Department treat the sales as expenses (wharfage, brokerage, barge/ Department also used a gross unit price EP sales. As the Court explained in AK demurrage, stevedoring, and trucking in dollars. Steel, this test is simply a means to expenses) on these sales, receives Department’s Position: The determine whether a sale at issue is in payment from the customer and receives Department disagrees that we should essence between the exporter and the a commission on the sale. See NSC U.S. use the gross unit U.S. price in dollars unaffiliated buyer, in which case the EP Verification Report at 2–4, dated March which appears on the invoice and not rules apply, or whether the role of the 26, 1999. These are all functions that the converted price in yen. The yen affiliate has sufficient substance that the have previously been found to be value on the invoice is the value which CEP rules apply. Id. compatible with a finding that the sales is invoiced and paid by NSC’s In this case, NSC’s small U.S. office involved are EP sales. In addition, the customers. For every U.S. sale, and merely assisted NSC and its affiliated Court of International Trade has held other export sales, NSC records the Japanese trading company in making the that the fact that a U.S. subsidiary dollar value, the yen value, and the sales in question. With respect to the receives a commission for providing exchange rate used to convert the dollar first prong of the indirect EP test, the such services is not incompatible with to yen, and then tracks the yen invoice merchandise at issue was shipped a finding that the sales are EP sales. See value through to their accounts directly from the manufacturer to the Outokumpu Copper Rolled Products AB receivable. Petitioners’ argument is that unaffiliated U.S. customer without v. United States (‘‘Outokumpu’’), 829 F. the Department should avoid being introduced into the physical Supp. 1371, 1378–80 (CIT 1993). Thus, unnecessary conversion where possible. inventory of NSC’s U.S. affiliate. With the facts of record, taken as a whole and The Department verified that the yen respect to the second prong, this pattern considered in context, demonstrate that value on the invoice is converted using of direct shipment is a customary these sales are essentially sales between the yen to dollar exchange rate on the commercial channel for sales of such NSC’s affiliated Japanese trading ninth day after shipment. This merchandise in the industry, and there company and the unaffiliated U.S. conversion is pursuant to the terms of is no indication that the sales between customer, with certain routine sales sale agreed upon by the parties at the the parties involved represented any support functions carried out by the time of the order confirmation. departure from the customary U.S. affiliate. Therefore, we find that the Therefore, for purposes of NSC’s normal commercial patterns. As for the third facts on the record demonstrate that the accounting records, the yen value prong, information obtained by the sales at issue meet the well-established posted in the normal course of business Department at verification confirmed criteria for indirect EP sales. is the converted dollar value effective NSC’s claims that its U.S. affiliate’s role In addition, we note that these sales on the date of shipment, using the was that of a processor of sales-related constitute such a minute portion of methodology discussed above. In documents and as a communications NSC’s U.S. sales that, even if the reporting U.S. sales to the Department, link with the exporter. Department had accepted petitioners’ NSC directly reported the yen value The gravamen of petitioner’s claim argument both that they should be from the invoice as recorded in the that these sales should be classified as considered CEP sales and that the normal course of business. As a result, CEP sales appears to be the fact that the Department should apply an adverse the Department used the yen value from affiliate is involved in the negotiation margin to these sales, the impact on the invoice as the starting point in its process. However, the sales-related NSC’s margin, if any, would have been calculation of U.S. price. documents we examined at verification negligible. Petitioners’ reliance on the two indicated that the affiliate’s role in the Comment 10: NSC’s U.S. Sales Prices. administrative cases cited is misplaced. sales negotiation process is properly Petitioners contend that the The Ferrosilicon from Brazil case, characterized as ancillary to the role of Department should use the gross unit unlike this case, involved a forward NSC and an affiliated trading company U.S. price in dollars which appears on exchange rate agreement. Thus, section in Japan. See U.S. Sales Verification the invoice, and not a converted net 773A(a) of the Act required that foreign Report, dated March 26, 1999. The price in yen as the basis for its U.S. currencies be converted into U.S. primary function of the U.S. affiliate in price calculations. NSC reported the dollars based on the exchange rate negotiation was conveying offers and gross unit price for its U.S. sales in specified in the forward exchange rate counter-offers between the customer on dollars, and this value appears on the agreement. Instead, the Department, due the one hand, and NSC and the Japanese invoice, even though NSC’s customers to the erroneous impression that it did trading company on the other—in other ultimately pay for the merchandise in not have dollar-denominated prices on words, serving as a ‘‘communications yen based on a nine day forward record, ‘‘mistakenly converted the U.S. link’’ between the parties involved in exchange rate. NSC reported the price sales prices reported in Brazilian making the decisions with respect to paid in yen minus a trading company currency to U.S. dollars on the date of these sales. Contrary to petitioners’ discount as NETPRTCU. Petitioners sale.’’ 62 FR at 54086. Because the
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Brazilian currency gross unit amount the end-user to NSC for sales made As it did in the Preliminary which appeared on the commercial through one of NSC’s affiliated resellers. Determination, NSC contends that the invoice corresponded to the dollar- Citing lack of time, NSC responded by process of acquiring the necessary denominated price as of the date of providing the Department with a list of information for the still unreported conversion pursuant to the forward the affiliated reseller’s customers who downstream sales would be overly exchange agreement, converting that were also affiliated with NSC, instead of burdensome due to the manual effort Brazilian currency value to U.S. dollars updating the database. Therefore, involved, and the affiliated reseller’s was an exchange rate error. Because the petitioners request that the Department limited retention of paper documents. dollar value reported to the Department apply the arm’s length test to the Furthermore, NSC has continued to already corresponded to the dollar subsequent sales by NSC’s affiliated work to report the downstream sales. At equivalent of the amount to be paid in reseller, where applicable. verification, NSC demonstrated that the Brazilian currency on the proper day for Department’s Position: The task of reporting the outstanding making that currency exchange, the Department disagrees with petitioners. downstream sales would be overly Department used the submitted dollar The Department’s regulations state that, burdensome, and, in some cases, value. if an exporter or producer sold the impossible. In addition, NSC cites to the The Japanese wire rod case involved foreign like product to an affiliated Department’s regulations at 19 C.F.R. a situation similar to Ferrosilicon from party, it may calculate normal value § 351.403(d), which state that in some Brazil. In that case, the Department based on such sales if it determines that cases the Department will not require stated that the invoice listed a gross unit the price is comparable to the price at the reporting of all downstream sales if price only in dollars, the conversion which the exporter or producer sold the the outstanding sales ‘‘account for less factor associated with the forward foreign like product to a person who is than five percent of the total value (or exchange agreement, the amount not affiliated with the seller. See 19 quantity) of the exporter’s or producer’s corresponding to a commission (or C.F.R. § 351.403(c). It is the sales of the foreign like product * * *’’ ‘‘discount’’) paid to the Japanese trading Department’s normal practice to run the As NSC’s unreported downstream sales company to which Nippon (i.e., NSC in arm’s length test on home market sales meet this Departmental requirement, the instant case) sold, and a net price in made by the producer to an affiliated NSC requests that the Department not yen that results after that ‘‘discount’’ company to determine whether the change its Preliminary Determination was deducted. 63 FR at 40447. As prices for such sales are comparable to regarding this issue. Petitioners did not instructed in the questionnaire, Nippon prices charged to unrelated parties. In comment on NSC’s argument in their had reported the gross unit price on the the instant case, the Department rebuttal briefs. invoice (which was in dollars), and the conducted its normal arm’s length Department’s Position: We agree with Department had used this price as the analysis and found that NSC’s sales to NSC that certain downstream sales starting price in its preliminary the affiliated reseller at issue failed the should continue to be disregarded in the calculations. Id. Petitioners urged that, arm’s length test. Therefore, our final determination. Pursuant to because payment was made in yen, preference is to use the downstream § 351.403 of the Department’s rather than in dollars, the Department sales if available. Based upon the regulations, the Department does not should disregard Nippon’s data and use information placed on the record, we normally require the reporting of facts available. Id. In the final find no basis for departing from the downstream sales if total sales of the determination, the Department Department’s normal practice in this foreign like product by a firm to all continued to use the reported dollar regard. affiliated customers account for five gross price because Nippon, as As the Department has stated in the percent or less of the firm’s total sales requested, had provided the price on the Preamble to its regulations, ‘‘[t]he of the foreign like product. In general, invoice. Id. In addition, the Department purpose of an arm’s length test is to the Department does not believe it had verified that Nippon received the eliminate prices that are distorted.’’ See necessary or appropriate to require the yen-denominated amount 62 FR at 27356. Once a non-distorted reporting of downstream sales in all corresponding to that dollar amount, price has been identified in a given instances. Questions concerning the converted at the forward exchange rate series of transactions for use as normal reporting of downstream sales are reflected on the invoice, minus the value, ‘‘the Department does not believe complicated, and the resolution of such trading company’s ‘‘discount.’’ Id. In it is necessary or appropriate to require questions depends on a number of other words, once the discount was the reporting of downstream sales in all considerations, including the nature of taken into consideration (as it would instances.’’ See Id. The approach the merchandise sold to and by the necessarily be regardless of which proposed by petitioners, which would affiliate, the volume of sales to the currency was used), the dollar amount require routine reporting of all affiliate, the levels of trade involved, exactly corresponded to the net yen downstream data for home market sales and whether sales to affiliates were amount petitioners complained had not to affiliates, so that the arm’s length test made at arm’s length. In addition, the been used in the first place. could be conducted at multiple levels, Department normally will not require Based on the facts of the instant case, would be both burdensome and the respondent to report the affiliate’s the Department has used the yen value unnecessary. Thus, for the final downstream sales unless the sales to the reported on the invoice as the starting determination, when a sale by NSC to affiliate fail the arm’s length test. The point for the calculation of U.S. price. an affiliated party passed the arm’s Department believes that imposing the Comment 11: NSC’s Arm’s Length length test, we did not conduct further burden of reporting small numbers of Analysis. tests to determine whether the sales by downstream sales often is not Petitioners argue that the Department that affiliate were also made at arm’s warranted, and that the accuracy of should apply the arm’s length test to length. determinations generally is not resales made by NSC’s affiliated Comment 12: NSC’s Home Market compromised by the absence of such customer to other NSC affiliates. On Downstream Sales. sales. January 4, 1999, the Department NSC argues that the Department In the instant case, NSC requested requested that NSC add a field to its should continue to find that NSC need that it be excused from reporting a small sales database indicating the relation of not report any further downstream sales. percentage of home market downstream
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See to reporting on the results of relating to the Department’s decision NSC Home Market Verification Report, verification). NSC argues that the regarding NSC’s sales made on a dated March 26, 1999. After examining Department has refused to provide this theoretical weight basis. At the time that the data placed on the record, the information, that this refusal was illegal, the Department made the decision not Department has determined that there and that it has prejudiced NSC’s ability to verify the theoretical-to-actual weight are sufficient matches of sales in the to defend its interests and affected its conversion factor, the Department home market and that the downstream due process rights. In this respect, NSC explained to NSC’s counsel the basis for sales in question account for less than relies upon the SAA at 814, and Clifford the Department’s actions. In addition, three percent of each firm’s total home v. United States, 136 F.3d 144, 149 (D.C. the Department issued a letter dated market sales of subject merchandise. For Cir. 1998). NSC states that the April 12, 1999, explaining the reason for purposes of this final determination, the Department’s actions raise the specter of rejecting the submitted conversion Department is disregarding this small government officials secretly prejudging factors. The factual and legal bases for percentage of downstream sales. this matter, and not allowing NSC to the Department’s decision regarding Comment 13: Request for Written respond or defend its interests. See NEC these sales are also discussed in Opinion/ Ex Parte Communications. Corp. v. United States, 151 F.3d 1361, Comment 29, ‘‘Use of Facts Available NSC argues that, pursuant to section 1374 (Fed. Cir. 1998). NSC concludes for NSC’s Theoretical Weight Sales.’’ 782(g) of the Tariff Act (19 U.S.C. that, for these reasons, the Department’s The Department, pursuant to section § 1677m(g)), and in accordance with the decision on theoretical weight cannot 777f(a)(3) of the Act has placed all ex SAA at 814, the Department must stand. inform all parties of the essential facts parte communications on the official NSC also cites the statutory under consideration before making a record of the case and they are available requirement that the agency document final determination, and give all parties to interested parties in room B–099 of ex-parte communications on the official sufficient time to defend their interests. record. See section 777(a)(3) of the the main Department of Commerce See Bethlehem Steel Corp. v. United Tariff Act (19 U.S.C. § 1677f(a)(3)); see building. The only ex parte States, 27 F. Supp. 2d 201, 207–08 (CIT communications relating to NSC’s sales 1998); Michael Y. Chung, U.S. also Gilmore Steel Corp. v. United States, 585 F. Supp. 670, 679 (CIT made on a theoretical weight basis were Antidumping Laws: A Look at the New communications with representatives of Legislation, 20 N.C.J. Int’l L. & Com. 1984). The Department is required to include notice of these communications NSC. Therefore, NSC was not Reg. 495, 525 (1995). NSC states that the prejudiced by any delay in recording Court of International Trade has held in the official record of the case for those communications for the record. In that the Department cannot rely on judicial review. NSC states that, in addition, as reflected in the memos information on which the parties have addition, in order to allow interested not been given an opportunity to parties to comment on information summarizing ex parte communications, comment. See Wieland-Werke AG v. submitted by other parties during such all ex parte communications with United States, 4 F. Supp. 2d 1207 (CIT meetings, see 19 C.F.R. § 351.301(c)(1), petitioners’ counsel involved no new 1998). NSC argues that this requirement information communicated during ex- information and all information is necessary to provide due process and parte meetings must be placed on the discussed was on the record. a fair judgement. NSC charges that the record. The Department disagrees with NSC Department has not provided NSC with NSC states that the Department has that it was not informed of the essential all information relevant to this ‘‘chosen secrecy over transparency’’ by facts and did not have sufficient time to investigation, and thus appears to be not placing on the official record defend its interests. NSC, like other memoranda memorializing any ex-parte about to make a final determination parties in this proceeding, has availed meetings between petitioner or other which does not afford NSC the right to itself of the myriad opportunities to interested parties and members of the defend itself or respond to that participate actively in the antidumping Administration concerning issues information. In particular, NSC notes investigation by submitting information that the Department has not placed on presented during this proceeding, and and argument and by commenting on the record the factual or legal bases for cites press reports alleging the information and argument placed upon its decision not to verify NSC’s occurrence of several meetings relating the record. NSC has done so in meetings theoretical-actual weight conversion to this case. NSC adds that the factor. NSC states that the Department Department also did not respond to with the Department, in written briefs, has not responded to its letters on this NSC’s letters requesting that ex-parte and during the hearing conducted in issue and has not placed on the record memoranda be placed on the record. this proceeding. In particular, NSC an ex-parte memorandum with respect NSC argues that the Department is thus devoted over 40 pages of its case brief to the meeting between NSC’s in violation of section 777(a)(3) of the to arguing the actual/theoretical weight representatives and Deputy Assistant Tariff Act (19 U.S.C. § 1677f(a)(3)) and issue and argued the issue again at the Secretary Spetrini at which this issue 19 C.F.R. § 351.104. NSC claims that, hearing. Thus, NSC, like all other was discussed. coupled with the violations of Article parties, has been given ample time to NSC argues that the Department’s 6.9 and 19 U.S.C. § 1677m(g) described analyze and comment upon the failure to explain its basis for not above, the Department’s actions in this essential facts under consideration, and verifying the conversion factor violates respect threaten the fairness and to preserve its rights to appeal the section 782(g) of the Tariff Act (19 integrity of the entire proceeding. decisions of the Department.
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Cost of Production use adverse facts available for the form or manner requested, significantly products for which costs were reported impedes a proceeding under the NSC on a broad product group average (i.e., antidumping statute, or provides Comment 14: NSC’s Costs for CAPS code specific basis) is information which cannot be verified, Particular CONNUMs. unwarranted. NSC contends that it has the Department shall use, subject to Petitioners argue that the Department cooperated as far as possible given the section 782 (d) and (e), facts otherwise should use adverse facts available for accelerated timeframe and fully available in reaching the applicable any U.S. sales that are matched to explained its inability to report all costs determination. In this investigation, on control numbers (‘‘CONNUMs’’) for on a product-specific basis. Moreover, more than one occasion, the Department which NSC failed to report product- NSC asserts that under section 782(e) of requested that NSC provide product- specific cost. Petitioners state that the the Tariff Act (19 U.S.C. § 1677m(e)), the specific cost data for all U.S. and home Department requested NSC to provide Department is required to consider market sales of subject merchandise. product-specific cost for all CONNUMs, respondents’ information, even if it is However, NSC failed to provide this including those that, in NSC’s view, not submitted by the deadlines or in the information for certain CONNUMs. As were not likely to be matched to U.S. form requested. NSC claims, however, noted in the cost verification report, the sales. By refusing to provide the that the information submitted was Department found nineteen CONNUMs information, the petitioners assert, NSC timely, complete and verified, and thus where the mix of products within the has significantly impeded the the Department has no basis for the use CONNUM included both product- investigation by failing to cooperate to of facts available or adverse facts specific costs and costs reported on a the best of its ability. Petitioners available. broader product group cost, which maintain that the statute mandates use Further, NSC asserts that if facts means that the reported costs for these of facts available in several available is warranted, an adverse CONNUMs are not product-specific. circumstances, including when a inference should not be applied because Since NSC failed to provide the respondent withholds requested the information on the record does not necessary information in the form and information or ‘‘fails to provide such establish that NSC failed to act to the manner requested, and in some information by the deadlines for best of its ability throughout the instances the submitted information was submission of the information.’’ Section investigation. In support of its position found to be inaccurate, we conclude 776(a)(2)(A) and 776(b) of the Act NSC cities 62 FR 27340, where the that pursuant to section 776(a) of the authorize the Department to use an Department explained that it will Act, use of facts otherwise available is adverse inference where the respondent consider whether ‘‘practical difficulties’’ appropriate. has ‘‘not acted to the best of its ability contributed to a respondent’s inability Moreover, section 776(b) of the Act, to comply with a request for to supply requested information. provides that an adverse inference may information.’’ As further support for Accordingly, the Department has no be used when an interested party has their position, petitioners cite Certain grounds to apply facts available with failed to cooperate by not acting to the Welded Carbon Steel Pipes and Tubes adverse inferences. best of its ability to comply with from Thailand: Final Results of In addition, NSC argues that if the requests for information. As discussed Antidumping Duty Administrative Department decides an adverse above, even though we asked twice, Review, 62 FR 53808, 53819–20 inference is proper, applying the highest NSC failed to comply with our requests (October 16, 1997), in which the calculated margin is aberrant and not for product-specific information. The Department determined that an adverse consistent with the law or the information necessary to compute inference was warranted because the Department’s past practice. According CONNUM specific costs for the company being reviewed failed to act to to NSC, the Department’s well- products in question was available in the best of its ability and did not comply established policy limits it to the NSC’s books and records (as evidenced with the Department’s request. highest non-aberrant margin. See Notice by the existence of similar data used to In addition, petitioners contend that of Final Determination of Sales at Less report product-specific costs for the adverse facts available should be Than Fair Value: Stainless Steel Wire products sold to the United States). applied to 19 CONNUMs for which the Rod From Italy, 63 FR 40422, 40428 NSC, however, simply elected not to Department found certain problems at (1998). Further, NSC contends that a report CONNUM-specific costs for these verification. For these CONNUMs, costs margin is not always the most products because they believed these were reported on a product-specific appropriate means of substituting products would not be used as matches basis and on a CAPS code basis, but missing information. Thus, NSC asserts, in the antidumping margin. Thus, for were then weight-averaged across a should the Department choose to apply the final determination, we applied the ‘‘mix of products.’’ According to an adverse inference in selecting facts highest calculated margin to any U.S. petitioners, the evidence shows the available, it should consider using sales which is matched to home market respondent did not act to the best of its information on the record related to the CONNUMs for which the product- ability in reporting these costs, and an missing data, as opposed to using a specific cost data was not reported. adverse inference should be used in punitively high margin. Comment 15: NSC’s Corrections to applying facts available to ensure that Department’s Position: We agree with U.S. CONNUM Database Presented at the respondent will not be rewarded for petitioners that adverse facts available Verification. its failure to supply the necessary should be applied to any U.S. sales At verification, NSC submitted, as a information. Thus, for the final which are matched to CONNUMs for minor correction, data showing that determination, whenever a U.S. sale is which the product-specific costs have certain CONNUMs had been reported matched to a home market CONNUM not been provided. As noted in the incorrectly due to an improper for which product-specific costs were comments from the petitioners, section conversion from millimeters to inches. not reported, the Department should 776(a) of the Act provides that, if an This resulted in the creation of a small apply the highest calculated margin as interested party withholds information number of new U.S. CONNUMs. facts available. that has been requested by the According to petitioners, the NSC argues that petitioners’ Department, fails to provide such Department should use adverse facts suggestion that the Department should information in a timely manner or in the available for these CONNUMs in
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Accordingly, for the final exhibit B.1 and 15, and also included in regional electric companies) is determination, we adjusted NSC’s the revised cost file NSC submitted at meaningless. NSC argues that the electricity purchases from affiliates to the Department’s request on April 14, electricity supplied by the affiliated and reflect the prices charged by its 1999. NSC asserts that it did not fail to unaffiliated suppliers involves different unaffiliated suppliers. report product costs for the minor segments of the electricity market. Comment 17: NSC’s Exchange Gains corrections submitted at verification. Specifically, the co-ops are wholesalers, and Losses. NSC contends that full costs for all U.S. whereas the regional companies are The petitioners argue that NSC failed CONNUMs, including all of the new retailers. In addition, respondent asserts to provide requested information as to CONNUMs related to the minor that it demonstrated at verification, the types of transactions that gave rise corrections were included in the cost through financial analysis, that the co- to reported foreign exchange gains and verification exhibits and in a cost file ops are not selling electricity at losses. The petitioners claim that NSC is subsequently requested by the unreasonably low rates for wholesalers able to segregate its foreign exchange Department. of electric power as compared to the gains and losses and contend that NSC’s Department’s Position: We disagree unaffiliated regional electric companies. chart of accounts provides evidence that with petitioners. At verification, NSC NSC further points out that if co-ops the means to do so were readily provided a worksheet which showed the were to adjust their prices to equal the available. The petitioners note that this product-specific cost for the new retail market price, the result would be information was necessary because the CONNUMs created due to the minor an unrealistically high rate of return on Department treats exchange gains and correction. In addition, on April 14, assets. Thus, NSC claims it would be losses differently depending on their 1999, the Department requested and inappropriate for the Department to source. received a revised COP and CV tape make any adjustment to its reported The petitioners state that, since NSC which reflects the minor corrections electricity costs. failed to comply with the Department’s presented at verification. Department’s Position: While we request to the best of its ability, the Comment 16: NSC’s Electricity disagree with petitioners that NSC’s Department should draw an adverse Purchases. electricity purchases from its affiliated inference and conclude that the entire The petitioners argue that the suppliers represent a major input in this amount of the transaction exchange gain Department should not use transfer case, we agree that the reported cost of is related to accounts receivable and prices to value transactions between electricity purchased from its affiliates thus should be disallowed. In addition, NSC and its affiliated suppliers of should be adjusted to a market price the petitioners argue that the electricity. Instead, petitioners assert (i.e., arm’s length price) in accordance Department should draw the adverse that, in dealing with transactions with section 773(f)(2) of the Act. inference that the entire amount of between affiliated suppliers under We disagree with NSC’s argument that exchange losses is related to accounts section 773(f)(2) and (3) of the Act, it is section 773(f)(2) of the Act requires the payable and should therefore be the Department’s practice to value major Department to take into account included in the cost of manufacturing. inputs, like electricity, at the higher of whether NSC’s affiliated and NSC contends that in reporting the transfer price, market price or actual unaffiliated suppliers of electricity are foreign exchange gains and losses, it cost of production. Further, petitioners at different levels of distribution, and if acted to the best of its ability and contend that there is nothing on the they are, to refuse to compare the prices petitioners claim that an adverse record to warrant changing the charged by each the two groups of inference should be applied is without Department’s an established practice. suppliers. Even if these suppliers do merit. Although NSC notes that its chart According to petitioners, NSC’s claim operate at different levels of of accounts divides exchange gains and that the price differential between the distribution, the customer (i.e., NSC) in losses into certain categories, in practice affiliated and unaffiliated suppliers is all instances, is at the same level. those accounts are not used. NSC asserts due to the different levels of distribution Section 773(f)(2) of the Act focuses on that it does not maintain transaction- is baseless. Petitioners assert that the whether the arms-length comparison specific data on foreign exchange gains record shows there is no ‘‘wholesale reflects comparable merchandise and and losses. Accordingly, NSC argues market’’ for electricity in Japan. whether the transaction occurred in the that reclassifying the information to In addition, petitioners dispute NSC’s market under consideration. It does not meet the Department’s request would be claims that the financial performances focus on the nature or circumstances of overwhelming. Thus, NSC asserts that it of the affiliated and unaffiliated the supplier. In this instance, both acted to the best of its ability and there suppliers are relevant as to whether the NSC’s affiliated and unaffiliated is nothing on the record to suggest that market price exceeds transfer price. electricity suppliers provided the it could have reported the requested Further, petitioners contend that identical input to NSC. Purchases of information. Further, NSC argues that financial analyses are not a function of electricity from its affiliated and the Department should continue to prices charged to an affiliated company. unaffiliated suppliers occurred in Japan, exclude the portion of the exchange Therefore, NSC is overlooking the the market under consideration. losses unrelated to the cost of purpose of the arm’s length test— to We also disagree with NSC that a production of hot-rolled steel. guarantee a price that reflects the market comparative return on asset analysis is Department’s Position: While we value. Thus, for the final determination, indicative of whether transactions disagree with the petitioners that we the petitioners contend that the between affiliates occurred at market found evidence indicating that NSC had Department should adjust the transfer prices. The structure and efficiency of the means to segregate its foreign price to reflect the higher market price. an entity is unique to that entity’s exchange gains and losses, we agree that
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It is the events and are not related to the disallowed a reduction in current year Department’s normal practice to operations of the company as a whole. production costs by the reversal of prior distinguish between foreign exchange NSC contends that the Department has year operating expense accruals and gains and losses from sales transactions excluded such special gains and losses write downs of equipment and and exchange gains and losses from from the cost calculation in the past and inventory. Petitioners further claim that, other types of transactions. See, e.g., cites Stainless Steel Wire Rod from Italy, although a reversal of a prior period Final Determination of Sales at Less 63 FR at 40430 in support of its charge is in accordance with Generally Than Fair Value: Steel Wire Rod From argument. Accepted Accounting Principles Trinidad & Tobago, 63 FR 9177, 9181 NSC argues that certain expenses at (‘‘GAAP’’), the adjustment is considered (February 24, 1998). The Department issue that were excluded from the G&A improper for the antidumping analysis normally does not include exchange calculation are accurately classified as because it bears no relation to the cost gains and losses generated from special losses and that the exclusion of of production during the current year. accounts receivable. Since NSC failed to these expenses should be retained. NSC Department’s Position: We agree with provide any documentation showing contends that these expenses are related the petitioners that an offset to G&A that the foreign exchange gains should to ongoing restructuring and are expenses for a reversal of a reserve for be included as an offset to the G&A determined by economic conditions at repairs of the blast furnace should be expenses, we do not consider it each separate division of the company. disallowed. It has been the Department’s appropriate to allow the gains as an Accordingly, NSC argues that such practice to disallow reductions to offset to reported costs. In addition, expenses are not related to the company current year production costs by the with the exception of the exchange as a whole, but instead are specifically reversal of prior year operating expense losses associated with or incurred by to tied to each division, and there is no accruals. The subsequent year’s reversal divisions unrelated to steelmaking, NSC reason to allocate a portion of the of these estimated costs does not failed to provide any substantiation that proprietary expense associated with or represent revenue or reduced operating the foreign exchange losses should be pertaining to a separate division to the costs in the year of the reversal. Rather, excluded. We therefore adjusted NSC’s G&A expenses of the steel division. they represent a correction of an G&A expense ratio to exclude the Further, NSC asserts that it estimate which was made in a prior foreign exchange gains and include demonstrated at verification that its year. While reversals of accruals are in certain foreign exchange losses. allocation methodology actually accordance with GAAP, the Department Comment 18: NSC’s G&A Expenses. excluded fewer costs than were incurred relies on GAAP provided that it does The petitioners argue that the by non-steel divisions. not result in distorted per unit costs. In Department should recalculate NSC’s Department’s Position: We agree with this investigation, we find it G&A expense ratio to include all petitioners that the total amount of the inappropriate to reduce the actual appropriate expenses, including certain proprietary expenses should be production costs incurred in the current expenses the nature of which included in the G&A expense year by excess reserves recognized in constitutes business proprietary calculation. We find no reason to prior years. information. The petitioners contend conclude that NSC’s normal accounting Comment 20: NSC’s Reconciliation that the expenses at issue, which are treatment of not including this Adjustment. discussed in more detail in the proprietary item as a cost of NSC argues that the Department proprietary version of their case brief, manufacturing, in accordance with its incorrectly excluded NSC’s relate to the company as a whole, and home country Generally Accepted reconciliation adjustment from its that NSC should not be permitted to Accounting Principles (‘‘GAAP’’), is reported COP and CV data in the exclude the portions of those expenses unreasonable or distortive. In fact, there preliminary determination. NSC argues that relate to non-steel divisions. is virtually no difference in the amount that its reconciliation adjustment In addition, the petitioners argue that of these proprietary expenses allocated corrects for differences between total there is no reason to believe that the to subject merchandise whether they are reported costs and total actual costs poor performance of the Japanese treated as G&A or as a cost of incurred, and that failure to include the economy affected any NSC division manufacturing. We consider these adjustment would result in a reported differently than any other division and expenses to relate to the general cost of manufacture that does not that NSC failed to support this claim. operations of the company as a whole reconcile with NSC’s accounting The petitioners therefore believe that and as such consider it appropriate to records. NSC thus concludes that the economic conditions are irrelevant to allocate them on a company-wide basis Department should include the reported the issue at hand and provide no basis as a percentage of unconsolidated cost reconciliation adjustment in its final for excluding certain expenses from the sales. determination. G&A calculation. Comment 19: NSC’s Blast Furnace Petitioners argue that the Department NSC argues that its calculation of Costs. properly excluded the reconciliation general and administrative expenses The petitioners argue that, for the adjustment in its Preliminary properly allocates company-wide costs final determination, the Department Determination because the quantities to the production of hot-rolled steel. should eliminate an offset for a reversal used to derive the adjustment were not Specifically, NSC states that non- of a reserve for the repair of blast on the same basis. Petitioner contends operating and special profits and losses furnaces. According to petitioners, the that while the overall differences may are properly allocated to the production Department’s practice is to disallow the be very small for product groups, the of hot-rolled steel using steel division reversal of a charge taken in a prior year particular quantity differences for cost of sales in the denominator, and because it would distort the current specific products within groups are that all exclusions from the calculation year’s costs. Petitioners note that, for significant. The petitioners therefore relate to gains and losses of non-steel instance, in Certain Cut-to-Length refute NSC’s claim that the difference is divisions. NSC asserts that its non- Carbon Steel Plate from Germany: Final insignificant and contend that inclusion
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24351 of the reconciliation adjustment would provide variances by budget group absence on the record of cost extras distort product costs at the individual when requested to do so by the specific to the second facility does not CONNUM level. In addition, the Department. Second, petitioners argue impugn NKK’s methodology, since NKK petitioner states that the reconciliation that NKK did not provide cost extras for adjusted the cost extras associated with pertains only to quantity differences and the second facility, even though there the other facility by the difference is not related to per unit cost. The are significant differences in cost between the weighted average base petitioner thus concludes that since the between plants. Third, petitioners argue product groups of both facilities and the reconciliation adjustment does not that the selected base product is not, as pinpoint product. represent an element of cost, no claimed by NKK, representative of the Moreover, we do not agree with corresponding adjustment to the cost of overall production of the subject petitioners that NKK did not act to the manufacturing should be made. merchandise. best of their ability in reporting costs. Department’s Position: We agree with Therefore, petitioners assert that the First, record evidence allows the the respondent that the reconciliation Department must resort to total adverse Department to reasonably adjust for the adjustment should be included in the facts available. If, however, the improper weighting of costs (i.e., to COP and CV data files for the final Department does not resort to total account for the cost differences between determination. At verification, we adverse facts available, then it argues plants). Second, as noted above, NKK determined that the reconciliation that the Department should draw an did not use one plant-wide variance, but adjustment is based on differences adverse inference in selecting an calculated a variance for the specific between costs in NSC’s normal books alternative remedy to address the base product group and took into and records and product-specific cost significant distortions. account the specific cost centers those reported to the Department. NSC NKK asserts that the Department products passed through during maintains costs in the normal course of verified that in the aggregate it reported production. Third, although NKK did business at a more aggregate level than all its costs and the issue is not whether not provide the requested information required by the Department; therefore, NKK provided weighted average costs concerning each individual base group’s NSC used a reporting methodology but the reasonableness of NKK’s variance, the Department was able to which differed in some respects from its particular weighting methodology. NKK verify NKK’s assertion as to the level of normal cost accounting system. As a argues that petitioners’ concerns difficulty in preparing such variances. result of deriving the reported costs, regarding the reported variance are We also note that the selected base there were small differences between unwarranted because NKK developed product group accounted for a the reported product-specific cost and the most specific variance it could for significant portion of the U.S. and home NSC’s cost of manufacturing subject the hot-rolled steel operations. NKK market products, and that the merchandise. Since the reconciliation argues that its use of Fukuyama’s cost information is not necessary in order to adjustment reconciles the reported cost extras was reasonable because it correct the flaws identified in NKK’s to the cost of manufacturing as recorded developed the most reasonable product response. Finally, the Department did in its financial accounting system, for specific costs it could and had no choice not request that NKK provide cost extras the final determination we have but to work with the information which for the second facility, nor did it included the adjustment. it maintains in the normal course of determine that the presence of such data business. NKK also argues that the would have significantly altered the NKK Department tested the reasonableness of results, since the first facility’s cost Comment 21: NKK’s Overall Cost NKK’s reported values for cost extras extras were adjusted by the difference in Methodology. during verification and noted no the pinpoint product and the weighted Petitioners argue that NKK’s reporting problems. NKK contends that there is no average base costs of both facilities. methodology should be rejected because basis for using adverse facts available as Therefore, we have relied on NKK’s it is fundamentally flawed and results in petitioners request because it has been reported costs except for certain costs that are significantly understated. fully cooperative in all phases of this adjustments to account for the improper Petitioners assert that NKK’s investigation. NKK contends that an weight averaging of the cost of the two methodology distorts costs because it alternative methodology can be based manufacturing facilities to account for relies on a base group that is not on verified information on the record plant efficiency. reflective of the actual production levels and should not be based on adverse Comment 22: NKK’s Weighted- of subject merchandise at the individual facts available. Average Costs. manufacturing facilities and, therefore, Department Position: We disagree Petitioners argue that NKK’s response does not properly reflect plant with petitioners that we should reject methodology for weighting the cost of efficiencies; it relies on a single variance NKK’s reported costs and use, instead, the two manufacturing facilities which for all product groups, rather than more adverse facts available. While we agree produced the subject merchandise detailed variances; and, it relies on the that NKK’s methodology improperly significantly understates the cost of cost extras from only one facility. (See weights costs, because the selected base manufacturing (‘‘COM’’). Petitioners Comments below for a detailed product does not adequately represent maintain that the Department’s discussion of each of these three the range of subject merchandise questionnaire states that the respondent allegations.) Petitioners argue that the produced at each plant, we find that this must report COP and CV based on the effect of these flaws is not quantifiable problem is correctable. (See Comment weighted average cost incurred at all and the necessary information to correct below.) We disagree with petitioners facilities and that NKK’s methodology these deficiencies is not on the record. that NKK’s reported variance or its cost does not properly account for the actual Moreover, petitioners argue that NKK extra methodology distort the reported production levels at the two facilities. withheld information requested by the costs. (See Comments below.) We note Petitioners also note that the Department that would have enabled that the variance used by NKK was for Department’s questionnaire specifically the Department to correct these the specific base product group and took stated that, if NKK did not believe it deficiencies and, therefore, has not into account the specific cost centers could respond to the Department’s acted to the best of its ability. First, those products passed through during request in the form requested, it was to petitioners assert that NKK did not production. We also note that the notify the Department in writing before
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24352 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices it submitted the response. Accordingly, supplemental response. NKK argues that from Korea. NKK points out that the petitioners contend that at no time did the particular product chosen as the Department in fact rejected petitioners’ NKK submit a letter asking permission starting point corresponds most closely call for total adverse facts available in to use a single selected product as the with the ‘‘pinpoint’’ product used in that case and simply adjusted the starting point instead of providing all of calculating the cost extras and that it reported costs with respect to the its product groups. Moreover, represents the overwhelming majority of methodological issue as to weighting. petitioners argue that NKK has the U.S. sales. Further, NKK asserts that NKK contends that the situation in this acknowledged that it could have it was not practical to develop a case is identical. In this case, NKK reported a certain number of additional different weighting for each of the argues, the Department can accept its product groups and account for the subject merchandise product groups. approach as reasonable, adjust the costs majority of U.S. sales during the POI but NKK claims that due to time constraints for product groups other than the did not do so. Petitioners argue that it would have been impossible to extract selected product group on a product by NKK’s failure to report accurate costs for each of the variances that related to the product basis, or adjust the reported these additional product groups means production flow of each of the different costs for the overall relative weighting. that the cost of corresponding home product groups and, therefore, once it Department’s Position: While we market sales that are matched to U.S. had gone through the exercise for the agree with petitioners that NKK’s sales are inaccurate. selected group it was necessary and submission methodology According to petitioners, the accurate enough to use this group for inappropriately weighted production at production of the ‘‘pinpoint’’ product the weighting. each of its two facilities, by using a (used by NKK to differentiate the cost of According to NKK, the correction to single product group’s production mix the base product group’s cost to product the weighting between the Fukuyama to weight all product groups, we specific cost) is not representative of the and Keihin works the Department disagree that the entire response should production of all of the base product contemplates in the cost verification be rejected. While we do not have on groups at each production facility. report would be less accurate and less the record CONNUM-specific In support of their position, reasonable than NKK’s methodology. production quantities for each facility, petitioners note that in Carbon Steel NKK asserts that its methodology does we do have information to allow the Flat Products from Korea, 64 FR at not understate costs, and that this is Department to re-weight NKK’s 12945, the Department rejected clear because the total cost reconciled production costs on a product-group respondent’s cost submission upon within a small difference. Thus, NKK specific basis to more properly reflect finding that the reported costs were argues that increasing the reported costs the actual production quantities at the understated. Petitioners argue that the would constitute a serious distortion. facilities. A product group weighted Department concluded that the NKK contends that while its respondent could have reported methodology is less precise for a portion average, between the two plants, is a information on a CONNUM-specific of the subject merchandise, its method reasonable approximation of our basis, but failed to do so. The is more appropriate for the particular preferred method, as opposed to using Department rejected the submitted cost product group which represents the a mix for a single product group for all in that case and applied adverse facts majority of the home market data that subject merchandise. available. Petitioners assert that NKK match to U.S. sales. Further, NKK NKK’s reporting methodology first had the ability to report costs in a claims that the remaining portion of the computed an average base cost for what manner that reflected the actual product database is small and its methodology it identified as a representative product mix of the two works but that it actually overstates the cost for some for use as the starting point for the disregarded the Department’s product categories. In addition, NKK reported costs. The average base cost instructions and used a distortive argues that there were certain product was computed using its budgeted cost weighting methodology. Thus, groups which were only produced at system which is maintained in the petitioners contend that NKK’s response Fukuyama and that the methodology normal course of business. NKK should be rejected. NKK used actually overstates cost for increased or decreased the average base Petitioners contend that NKK’s these product groups. Thus, NKK states cost depending on the relationship of proposed adjustment does not result in that using the overall aggregate each specific product to the base reported costs that reflect the actual cost weighting methodology mentioned in product using its standard management of certain product groups other than the Department’s Cost Verification costing system. The selected product NKK’s selected product group. Instead, Report would result in an even greater groups budgeted costs for the three petitioners argue that NKK’s adjustment distortion of costs. periods covering the POI for each plant simply applies the base cost of the NKK argues that, if the Department (six in total) were used to compute the selected product group to the rejects NKK’s methodology, the POI weighted average cost of production quantities of the other Department should adjust the weighting manufacturing for the base product. The product groups. Thus, petitioners factors of the four key product groups. six different budgeted costs were weight contend that applying the correct Using information on the record to averaged based on actual production production mix to the wrong cost does allocate the production of these groups, quantities of the selected product group not remedy flaws in NKK’s reporting. NKK argues, the Department should at each plant during each budgeted cost NKK argues that its allocation increase the cost for two of the product calculation period during the POI. As a methodology is reasonable. NKK asserts groups and reduce the cost for the other result, all CONNUMs for submission that its initial response showed that the two product groups. According to NKK, purposes reflect the production mix relative weighting of costs between the a single adjustment is too crude and between the two plants for this selected Fukuyama and Keihin works was based adjustments for all product groups product rather than the production mix on a subset of the total production would be unduly burdensome and of each of the subject merchandise quantity. In addition NKK argues that it impractical. product groups. We disagree with NKK clarified the reasons for choosing the NKK argues that petitioners that this methodology is the most particular product as the starting point mischaracterize the Department’s reasonable given the information on the for development of the actual costs in a decision in Carbon Steel Flat Products record because we found significant
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24353 differences in the product mix between the ability to report product group- production stages (e.g., hot strip mill) at the plants. specific variances but refused to do so. each of the manufacturing facilities We disagree with petitioners that NKK argues that the Department through which the vast majority of the NKK’s proposed adjustment applies a reviewed the variance calculation in subject merchandise passes. NKK corrected production mix to the wrong detail at verification and noted no allocated the other variances it normally cost. The weighting issue between the particular problems in the cost records across all products. In this case, two plants does not impair the base cost verification report with respect to the NKK’s variance methodology appears to plus extra methodology used to report variance calculation or methodology. reasonably reflect the variances product-specific costs. The relative cost NKK contends that the Department applicable to the subject merchandise. differences between the pinpoint reconciled the reported costs to the Unlike the variances in Antifriction product and each of the other products overall cost in the accounting records Bearings, NKK’s reported variances are NKK reported are not impacted by this and that if there were any serious on a more specific level than the issue. distortions one would have expected to division-wide basis questioned in Also, the Carbon Steel Flat Products find discrepancies in the reconciliation Antifriction Bearings. In addition, in from Korea case cited by petitioners exercise. Antifriction Bearings, the Department does not support the use of adverse facts NKK asserts that it could not have noted that the company did in fact available in this case. In that case, the reported product-group-specific maintain variances at a more detailed Department found that the respondent variances as petitioners contend. NKK level than division-wide. Accordingly, did not act to the best of its ability claims that the variances it tracks in the we do not consider it appropriate to because the respondent repeatedly did ordinary course of business have no adjust NKK’s reported variance not supply the requested information detail that would allow it to calculate amounts. and during verification we found that separate variances, for example, for high Comment 24: NKK’s Reported Cost the information existed. carbon hot-rolled steel and for regular Extras. Comment 23: NKK’s Reported Cost carbon hot-rolled steel. NKK contends Petitioners argue that NKK’s use of Variances. that there is no need to do so and that Fukuyama’s cost extras to develop the Petitioners contend that NKK’s use of it does not do so in the ordinary course reported costs was not reasonable a single variance for all product groups of trade. because they do not represent costs at is distortive and must be rejected. NKK asserts that it developed the the other facility. Petitioners assert that consistent with most specific variance that it could for NKK argues that it developed the the Department’s long standing practice the hot rolled steel operations. NKK most reasonable product specific costs of requiring variances at the most contends that it extracted those that it could and had no choice but to specific level, the Department directed variances associated with the work with information in its normal NKK to report variances for each production stages leading up to finished accounting system and those materials product group. Petitioners argue that the hot-rolled steel. NKK claims that its which it has in the ordinary course of overall steel division variance is not a comparison of this variance to the business. NKK contends that the reliable substitute for the product group- overall steel division variance simply Department spent a great deal of time at specific variances requested by the shows that the disparity in variances the verification exploring the cost extras Department, noting the difference in among different steel products is and testing the reasonableness of the variances for each of the manufacturing relatively small and that this should be only cost extras that NKK has in the facilities. Petitioners estimated the no surprise since the largest portion of ordinary course of business. variances for a product group other than the variance for both hot-rolled and For a full discussion of this issue see the NKK-selected product group and downstream products usually occurs at the Department’s April 28, 1999 assert that neither the overall steel the upstream production stages. NKK Memorandum to Neal Halper, Acting division variance nor the selected asserts that petitioners’ argument about Director, Office of Accounting, Cost of product group variance can substitute variances for different subject product production (‘‘COP’’) and constructed for the individual product group groups ignores the facts on the record. value (‘‘CV’’) Calculation Memorandum variances. NKK notes that petitioners’ argument for Final Determination, (‘‘Final NKK Petitioners argue that in Antifriction concludes that there are substantial Cost Calculation Memorandum’’). Bearing (Other than Tapered Roller differences between NKK’s selected Department’s Position: We agree with Bearings) and Parts Thereof From product group and the petitioners’ NKK that the use of Fukuyama cost France, Germany, Italy, Japan, example product group, when in fact extras by NKK is appropriate. NKK used Romania, Singapore, Sweden and the the only difference is pickling. NKK the information it kept in the ordinary United Kingdom: Final Results of claims that it is not plausible that the course of business to calculate product Antidumping Duty Administrative variances at the pickling stage alone specific costs required by the Reviews, (‘‘Antifriction Bearings’’) 60 FR could double the size of the overall Department. We did not request that 10900, 10928 (1995), the Department variance. NKK provide cost extras for the second rejected respondent’s use of plant-wide Department’s Position: We disagree facility, nor did we determine that the variances instead of more specific with petitioners that NKK’s application presence of such data would have variances because it resulted in of variances is distortive and have significantly altered the results, since unreasonable cost shifting between continued to rely on NKK’s submitted the first facility’s cost extras accounted products. Petitioners contend that, in variances for the final determination. for the relative difference in costs due this case, NKK’s proposal to use the The Department’s practice calls for to technical specification differences variance for the entire steel division, respondents to report the most specific between the pinpoint product and all which incorporates more than one level of variances kept in their normal other products. This relative difference plant, is distortive. Petitioners contend books and records. NKK, however, does was applied to a base cost that already that NKK’s use of either the selected not normally accumulate and allocate incorporated cost differences between product group or the steel division variances at the product group level. For the two facilities. We also note that the variance leads to unreasonable cost the response, NKK determined cost extras were adjusted to reflect the shifting. Petitioners allege that NKK had variances by cost center for the costs at both facilities. For a full
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24354 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices discussion of this issue, see the organized as divisions rather than methodology, unless the respondent Department’s April 28, 1999 Final NKK ‘‘legally separate’’ affiliated companies provides case-specific facts that clearly Cost Calculation Memorandum. We should not matter. NKK contends that it support a departure from our normal have not made any adjustments to makes no sense to ignore existing practice of allocating company-wide NKK’s cost extras. distinctions in G&A expenses between G&A expenses over company-wide cost Comment 25: NKK’s G&A Expenses. steel production and other business of sales. This approach is both NKK argues that the Department activities and that the narrowest reasonable and predictable. To allow a should not calculate G&A expenses on category recorded in the respondent’s respondent to choose between the a company-wide basis, but should use accounting records should be used. Department’s normal method and an NKK’s steel division G&A. NKK argues Petitioners argue that it is the alternative method simply because one that the Department’s questionnaire Department’s long-standing practice to method results in a lower rate, would be does not require a company-wide G&A calculate G&A expenses using a a results oriented approach. rate. NKK asserts that it normally company’s audited, unconsolidated The Department’s calculation of G&A assigns G&A expense to the relevant financial statements. As support for expenses in the Furfuryl Alcohol from division that incurred the expense. NKK their position, petitioners cited the South Africa case was specific to the contends that expenses incurred in Notice of Final Determination of Sales facts of that case. As noted above, we other divisions, which have nothing to at Less Than Fair Value: Stainless Steel believe that the facts of this case warrant do with the steel production, should not Round Wire from Canada (‘‘Stainless continuing to follow the Department’s be attributed to the steel division and Steel Round Wire from Canada’’), 64 FR long-standing practice of calculating that head office expenses which relate 17324, 17333 (April 9, 1999) and several G&A expenses on a company-wide to the overall operations are normally other cases in which the Department basis. allocated to each division. NKK argues followed this long-standing practice. In the Fresh Atlantic Salmon from that the questionnaire allows for some Petitioners contend that the Fresh Chile case cited by NKK, we followed flexibility in responses, depending on Atlantic Salmon from Chile case cited our normal practice of calculating the how a company incurs and records G&A by NKK is not consistent with NKK’s G&A expense rate based on the expenses, and does not mandate a fixed argument that G&A expenses of other respondent’s unconsolidated operations. approach to G&A expense reporting. divisions should be excluded from The determination in that case was to NKK contends that using its division- respondents’ G&A. Petitioners argue that exclude an affiliated company’s G&A specific G&A expense kept in the the Department’s determination in that not to exclude G&A expenses of a normal course of business is consistent case was to exclude expenses incurred different division as being unrelated to with the Department’s prior practice. by an affiliate and use the respondent’s producing the subject merchandise. Citing the Final Determination of Sales audited, unconsolidated financial Moreover, we disagree with NKK’s at Less Than Fair Value: Furfuryl statements. assertion that there is no distinction Alcohol From South Africa (‘‘Furfuryl Department’s Position: We disagree between a division and a stand alone Alcohol From South Africa’’), 60 FR with NKK that G&A expenses should be affiliated company. Divisions may exist 22550, 22556 (May 8, 1995), NKK based on NKK’s Steel Division G&A in name only or may have some alleges that the Department focused on rather than on company-wide G&A. autonomy, but they are controlled by respondent’s approach in the normal G&A expenses by their nature are the greater company. Affiliated course of business. In that case, NKK indirect expenses incurred by the companies are separate legal entities asserts, the Department noted that the company as a whole. If they directly and as such require complete respondent was able to demonstrate that related to one process or product, they administration structures. In this case, some G&A expenses were directly would more appropriately be NKK’s divisions are not separate entities related to non-subject merchandise and considered manufacturing costs. NKK but merely separate business units that the Department excluded these provided no specific reasons as to why within a single corporation. Thus, we unrelated G&A expenses from the G&A its normal method of allocation of G&A have calculated G&A expenses based on ratio. NKK contends that its G&A to different divisions is more reasonable NKK’s unconsolidated company-wide methodology is based on the same than the Department’s normal method. G&A for the final determination. premise that only relevant expenses It is the Department’s consistent Comment 26: NKK’s Blast Furnace should be included in the G&A. practice to calculate G&A expenses Costs. NKK also cites the Notice of Final based on the producing company as a NKK argues that the Department Determination of Sales at Less Than whole and not on a divisional or improperly included the loss from a Fair Value: Fresh Atlantic Salmon from product-specific basis. See Stainless blast furnace accident in G&A. NKK Chile, 63 FR 31411, 31433 (June 9, 1998) Steel Round Wire from Canada; Notice asserts that, consistent with prior (‘‘Fresh Atlantic Salmon from Chile’’), of Final Determination of Sales at Less Department practice, the Department to support the argument that the Than Fair Value: Stainless Steel Wire should exclude the blast furnace losses Department followed the respondent’s Rod from Sweden, 63 FR 40449, 40459 as an extraordinary expense. NKK normal business practices. In that case, (July 29, 1998) and Fresh Atlantic contends that this accident meets the the respondent argued that the Salmon from Chile, 63 FR at 31433. This standard for extraordinary treatment Department should use the reported approach recognizes the general nature affirmed by the Court of International G&A expense, which included expenses of these expenses and the fact that they Trade in Floral Trade Council of Davis, associated with an affiliated company. relate to the company as a whole and is California v. United States, (‘‘Floral NKK notes that the Department rejected consistent with GAAP treatment of such Trade Council’’) 16 CIT 1014, 1016–17 this approach and used only those period costs. The Department’s (CIT 1992), because an accident such as expenses related to the responding methodology also avoids any distortions this is ‘‘unusual in nature and salmon company, as recorded in the that may result if, for business reasons, infrequent in occurrence.’’ respondent’s normal books and records. greater amounts of company-wide NKK argues that the blast furnace NKK argues that its approach is general expenses are allocated accident was ‘‘unusual in nature’’ consistent with this decision, and states disproportionally between divisions. because record evidence demonstrates that the fact that business units are We consistently apply this that NKK has never had a blast furnace
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24355 accident in its history. NKK claims that, criteria. Petitioners cited Notice of Final require such purchases to be valued at in past cases where the Department has Determination of Sales at Less Than the higher of market prices, transfer excluded extraordinary expenses from Fair Value: Certain Preserved price or the affiliated supplier’s cost of the cost of production, an unforeseen Mushrooms from India, 63 FR 72246 production. Petitioners note that and abnormal event occurred which was (December 31, 1998) and Notice of Final documentation provided by KSC beyond management’s control. NKK Determination of Final Determination of demonstrates that its affiliated cited the following cases for the Sales at Less Than Fair Value: Static supplier’s transfer price was lower than Department’s practice with regard to the Random Access Memory the market price paid to unaffiliated frequency with which the event Semiconductors from Taiwan, (‘‘SRAMS trading companies for the same occurred: Notice of Final Determination from Taiwan’’), 63 FR 8909 (February materials. Petitioners also note that of Sales at Less Than Fair Value: 23, 1998) to demonstrate the type of none of the schedules submitted by KSC Stainless Steel Wire Rod from Taiwan, events the Department determined were makes references to any price 63 FR 40462 (July 29, 1998), Notice of not unusual in nature. Petitioners differentiation by grade or time of Final Determination of Sales at Less contend that while blast furnace purchase. Petitioners assert that it is the Than Fair Value: Large Newspaper accidents may be infrequent, they are by respondent’s burden to show whether Printing Presses and Components no means ‘‘unusual’’ in occurrences in any adjustments to the transfer price or Thereof, Whether Assembled or the steel industry. Therefore, petitioners market price are necessary before a Unassembled, From Japan, 61 FR 38139, argue that the Department should comparison may be made and cites to 38153 (July 23, 1996) and Final include the losses related to the blast Department precedent in Certain Determination of Sales at Less Than furnace accident in NKK’s G&A Corrosion-Resistant Carbon Steel Flat Fair Value: Fresh Cut Roses from expenses. Products and Certain Cut-to-Length Ecuador, 60 FR 7019, 7038 (February 6, Department’s Position: We disagree Carbon Steel Plate from Canada: Final 1995). NKK argues that the blast furnace with NKK that the loss from the blast Results of Antidumping Duty accident was unforeseen and beyond its furnace accident should be treated as an Administrative Reviews and control; otherwise it would have extraordinary expense. As noted in Determination To Revoke in Part, 64 FR performed the necessary repairs to Floral Trade Council, an extraordinary 2173, 2181–82 (January 13, 1999) prevent the accident from occurring. event is both ‘‘unusual in nature and (‘‘Steel from Canada’’). Since KSC has NKK argues that the blast furnace infrequent in occurrence.’’ NKK argues failed to meet this burden, petitioners accident was also ‘‘infrequent in that the blast furnace accident was argue, the Department must increase the occurrence.’’ NKK contends that the unusual in nature and infrequent in affiliated supplier’s transfer price to Court explained in Floral Trade Council occurrence because this was the first reflect the market value of iron ore and that ‘‘an event is ‘‘infrequent in blast furnace accident in NKK history. coal. occurrence’’ if it is not reasonably We disagree with NKK’s assertion that expected to recur in the foreseeable this accident is unusual in nature. Like KSC argues that the Department future.’’ NKK asserts that these are the other steel producers, NKK performs should reject petitioners’ request to facts in this case because NKK has never regular maintenance and repairs of its adjust KSC’s purchase price of iron ore before had a blast furnace accident. blast furnaces in hopes of preventing and coal inputs through an affiliated NKK also claimed that it properly accidents and loss of operation. While party. KSC claims that the Department’s treated the blast furnace accident as a NKK may not have experienced a blast verification report and the petitioners’ non-operating expense in its audited furnace accident in the past, industrial analysis do not reflect the fact that there financial statements. NKK argues that accidents are neither unusual nor are price differences between various the Department’s standard practice is to unforeseen for steel producers. grades and types of iron ore and coal, use costs as they are reported in the Furthermore, as NKK itself notes, it and that its purchases were made at respondent’s financial statements. NKK classified the loss due to the blast different times over the course of the argues that it reported the losses furnace accident in its audited financial POI. If these grade and timing resulting from the blast furnace accident statements as a non-operating expense differences are considered, KSC argues, as non-operating expenses in the and not an extraordinary loss. As in the then the price paid to the affiliated financial statements that were Department’s determination in the suppliers is virtually the same as that completed and audited before the SRAMS from Taiwan, we have included paid to the non-affiliated suppliers. KSC initiation of this antidumping the loss incurred as a result of the blast claims that since it does not purchase investigation. NKK contends that its furnace accident in the G&A expenses all types of iron ore and coal in treatment of the blast furnace accident for the final determination. consistent proportions from both as a non-operating expense was in affiliated and non-affiliated parties, the accordance with standard Japanese KSC overall POI-average price does not GAAP. Comment 27: KSC’s Affiliated Input provide for a valid comparison. KSC Petitioners argue that the Department Costs. asserts that a cost verification exhibit correctly included certain losses related Petitioners argue that the Department offers a breakdown of input prices by to the blast furnace accident in NKK’s should adjust KSC’s reported materials commodity code, which demonstrates G&A. Petitioners assert that these losses costs for iron ore and coal purchased that prices paid to affiliated suppliers do not qualify as extraordinary from affiliated parties at below-market and unaffiliated suppliers are virtually expenses. Petitioners contend that a prices. Petitioners note that KSC the same when compared by grade. KSC breakdown in the blast furnace is not purchased iron ore and coal from notes that in many instances the price unusual in nature because it is not affiliated and non-affiliated parties charged by the affiliated supplier is highly abnormal, unrelated nor during the period of investigation higher than the price charged by an incidentally related, to the manufacture (‘‘POI’’) and that, on average, the price unaffiliated supplier, while in other of steel. Petitioners argue that only in paid to affiliated parties for these inputs cases it is lower. KSC also claims that rare situations will an event occur that was lower than the price paid to non- the Department’s sample comparisons of meets both the ‘‘infrequent in affiliated parties. Petitioners argue that identical grades on nearly the same date occurrence’’ and ‘‘unusual in nature’’ section 773(f) (2) and (3) of the Act show nearly identical prices being
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24356 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices charged by affiliated and unaffiliated Sheet and Strip from Canada; Final Department’s normal practice is to suppliers. KSC argues that this Results of Antidumping Duty include severance costs in a company’s comparison confirms that the overall Administrative Review, 61 FR 46618, G&A expenses. See, e.g., Notice of average prices of all grades over the 46619–20 (September 4, 1996); Certain Preliminary Determination of Sales at entire year was not a valid indicator of Hot-Rolled Lead and Bismuth Carbon Less Than Fair Value: Hot-Rolled Flat- arm’s length pricing between KSC and Steel Flat Products From the United Rolled Carbon-Quality Steel Products its affiliated supplier. Kingdom; Final Results of Antidumping from Brazil, 64 FR 8299, 8305–8306 Department Position: We agree with Duty Administrative Review, 60 FR (February 19, 1999) and Notice of Final petitioners. KSC submitted a schedule 44009, 44012 (August 24, 1995) (‘‘Lead Results and Partial Rescission of which demonstrates that, on average, its and Bismuth’’), Final Determination of Antidumping Duty Administrative POI purchases of iron ore and coal from Sales at Less Than Fair Value: Furfuryl Review: Certain Pasta From Turkey, 63 affiliated parties were made at lower Alcohol From South Africa, 60 FR FR 68429, 68434 (December 11, 1998). prices than its purchases from non- 22550, 22556 (1995) (‘‘Furfuryl We noted at verification that these affiliated parties. KSC did not submit Alcohol’’), Final Determination of Sales downsizing activities have resulted in sufficient information to support its at Less Than Fair Value: Certain Carbon recurring expenses for KSC. The fact contention that timing differences and and Alloy Steel Wire Rod from Canada, that the process may extend over grade differences have an impact on the 59 FR 18791, 18795 (April 20, 1994) multiple years does not preclude the use comparison of iron ore and coal prices (‘‘Steel Wire Rod’’). KSC asserts that of current period expenses. KSC has and, therefore, we were not able to these cases provide examples of recognized in its audited financial perform a more detailed analysis. At instances where the Department has statements the expense related to the verification we reviewed a list of iron recognized that expenses relating current fiscal year, and it is this period ore and coal prices by commodity code exclusively to the production of non- cost which we have included in KSC’s and noted, as KSC acknowledges, that subject merchandise should not be G&A expenses. Also, even though the the prices from affiliated suppliers were included in the G&A expenses of subject classification of these amounts as often lower than prices charged by merchandise. In the instant case, KSC extraordinary expenses under Japanese unaffiliated suppliers. Since there is claims that the Department should GAAP. The Department does allow for sufficient evidence on the record that exclude the losses referred to above the exclusion of extraordinary expenses purchases from affiliated parties were because they relate to assets which were under certain circumstances, but these made at below-market prices, we believe used solely for the production of non- severance amounts do not fall into this that a comparison of the POI average subject merchandise. category. The Department normally will prices is appropriate and does not Petitioners argue that the Department exclude costs considered extraordinary, distort our analysis. Therefore, in normally calculates G&A expenses provided that they are both unusual in accordance with section 773(f)(2) of the based on the respondent’s nature and infrequent in occurrence. Act, we have adjusted the cost of unconsolidated operations, which These expenses for special retirement materials to reflect the market values of include the operations of each of the cannot be considered infrequent in iron ore and coal, based on the prices respondent’s divisions. See, e.g., Notice occurrence since they have been a charged by unaffiliated suppliers. of Final Determination of Sales at Less recurring cost for KSC and, therefore, Comment 28: KSC’s G&A Expenses. Than Fair Value—Stainless Steel Round In reporting G&A expenses, KSC should be included in G&A expenses Wire from Canada, 64 FR 17324, 17333 along with other period costs. See argues that it properly excluded its (April 9, 1999). Petitioners also assert Silicomanganese From Brazil: expenses for special retirement that KSC has not established on the Preliminary Results of Antidumping expenses and losses on the sale of fixed record that the losses on the sale of Administrative Review, 62 FR 1320, assets used for production of non- fixed assets relate solely or exclusively 1322 (January 9, 1997). subject merchandise. KSC notes that the to the production of non-subject special retirement expenses are one- merchandise. With regard to the With regard to the losses on sale of time severance payments to transferred expenses on special retirement fixed assets, we verified that the assets employees. KSC states that these payments, petitioners argue that in question relate to the production of expenses are incurred in more than one expenses relating to the termination, non-subject merchandise. However, it is year to the extent that downsizing of transfer or early retirement of employees our practice to calculate G&A expenses operations is not completed in a single in a downsizing event are neither using the operations of the company as year, but the expense is a one-time event unusual nor infrequent for the steel a whole. See, e.g., Brass Sheet and Strip for the particular employees transferred industry, and therefore cannot be at 46619, Circular Welded Non-Alloy during a particular year. KSC claims classified as extraordinary expenses. Steel Pipe and Tube From Mexico: Final that since these expenses are not related Petitioners add that the fact that KSC Results of Antidumping Duty to the current production of the incurred special retirement expenses in Administrative Review, 63 FR 33041, company and are considered an 1996, 1997 and 1998 is further evidence 33050 (June 17, 1998). As we stated in extraordinary expense under Japanese that these expenses are not the original questionnaire issued to GAAP, they should be excluded from extraordinary under U.S. GAAP, and KSC, ‘‘G&A expenses are those period G&A expenses. With regard to the losses therefore should be included in the expenses which relate indirectly to the on sale of fixed assets, KSC cites to calculation of KSC’s G&A expense rate. general production operations of the Fresh Atlantic Salmon From Chile, 63 Department’s Position: We agree with company rather than directly to the FR at 31436, in which the Department petitioners and, as in the preliminary production process for the subject noted that losses on the sale of fixed determination, we have included the merchandise* * *’’ Therefore, any assets are not included in G&A expenses special retirement and losses on sales of income or expense incurred through when the assets in question are tied to fixed assets in our calculation of KSC’s KSC’s disposition of fixed assets should the production of non-subject G&A expense rate. The expenses for be included in the G&A expense rate, merchandise. KSC also cites the special retirement are severance costs regardless of whether they are used following cases as examples of that are recorded as part of KSC’s purely for the production of subject Department practice on this issue: Brass ongoing downsizing operations. The merchandise or non-subject
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In calculated separate G&A expense rates attempting to comply with the that case, the Department stated, ‘‘we by division and a company-wide G&A Department’s accelerated schedule in generally consider disposal of fixed expense rate for G&A expenses that this investigation, and that this assets to be a normal part of a related to the operations of the company contributed to NSC’s failure to identify company’s operations and have as a whole. Here, KSC submitted a the mistake regarding the weight included, therefore, any gains or losses single G&A expense rate for the entire conversion factor. generated by these transactions in the company and only included its losses NSC states that it realized in cost of production calculation.’’ on sale of fixed assets related to subject preparing for verification that all hot- (emphasis added) This is consistent merchandise. It would not be rolled coils are weighed during the with our treatment of miscellaneous appropriate or reasonable to allocate production process, and that these expenses in U.S. Steel Group et al v. these losses over the cost of producing actual weight data are recorded at the United States, 998 F. Supp. 1151, 1153– all products, while specifically production facilities. NSC adds that the 54 (CIT 1998). We note also that KSC excluding losses on sale of fixed assets production databases do not overlap incurred losses on sale of fixed assets used for non-subject production. Since with the sales databases at NSC’s related to the production of subject the sale of fixed assets is a general headquarters. NSC stated it obtained the merchandise and these losses were activity of the company, and not actual weight information, calculated a included in G&A expenses and allocated specifically related to production, we conversion factor and submitted this over the cost of all products that KSC have allocated all losses on the sale of information to the Department on produced. fixed assets over the cost of producing February 22, 1999, prior to both the cost all products. and sales verifications. NSC also states In the Fresh Atlantic Salmon from that it filed additional information on Chile case cited by KSC, the issue was Facts Available this subject on March 1, 1999. whether or not to treat temporary NSC disagrees with the Department’s Comment 29: Use of Facts Available shutdown costs as period costs, or G&A statement in the Preliminary for NSC’s Theoretical Weight U.S. Sales. expenses, that would normally be Determination (February 19, 1999) that allocated over the cost of all products. NSC characterizes as an inadvertent NSC had ‘‘refused’’ to provide a The Department determined that the mistake the fact that, in its response to conversion factor. NSC argues that this facilities in question were only idle for the initial questionnaire, NSC stated statement baselessly implies that NSC a brief period of time and therefore the that a theoretical weight to actual intentionally withheld information, costs associated with the temporary weight conversion factor could not be whereas, it claims, the record shows shutdown should not be treated as G&A supplied because coils sold on a that NSC cooperated fully but expenses. Rather, the costs of operating theoretical basis are never weighed. committed an inadvertent error in its the facility were charged directly to the Respondent states that it believed this initial questionnaire response. cost of manufacturing for the non- statement to be true at the time of filing. NSC states that the Department took subject products produced in the NSC argues that it corrected this error no action to remove the conversion facility. The Department did not, as KSC within the Department’s time limits for factor from the record, and included in implies, specifically exclude the submitting new information. In the the verification agenda an instruction shutdown costs from the G&A expense alternative, NSC argues that the that NSC explain how its production calculation because the facility did not conversion data it presented constitutes and sales systems capture actual weight. produce subject merchandise. KSC’s a minor correction. Thus, the NSC alleges that at verification, reliance on to Brass Sheet and Strip and Department should have accepted the ‘‘Department representatives repeatedly Steel Wire Rod is similarly misplaced. information under the minor corrections assured NSC that the theoretical weight The issue in these cases was whether to rule. NSC states that the Department conversion factor would be verified. include in a respondent’s G&A expenses never rejected the filings containing the Those assurances notwithstanding, NSC certain costs that were incurred by a corrections as untimely, and therefore claims, the Department abruptly parent company or a subsidiary. The abused its discretion by refusing to informed it approximately two hours cites are not on point since the instant verify this information and by applying before the end of verification that case involves equipment that was adverse facts available to the affected ‘‘Washington’’ had directed that the owned by KSC itself and, as noted sales. NSC also argues that to reject the conversion factor not be verified. The above, the Department calculates G&A information now would severely Department also refused to allow NSC’s expenses based on the operations of the prejudice NSC’s rights, that this representatives to even explain the respondent, as a whole. Expense information meets the criteria set forth background of its initial mistake. The incurred by a parent company, or any in section 782(e) of the Tariff Act and, reasons for those decisions have never other affiliated company, are only thus, that the Department must consider been disclosed on the record and the included in the G&A expense this information in calculating a margin verification report was silent on calculation to the extent of the support for NSC. Finally, NSC argues that the theoretical weight.’’ NSC Brief at 16. provided by the parent or affiliated Department incorrectly applied an NSC concludes that the Department’s company. KSC’s reliance to Lead and adverse inference in the preliminary failure to verify this issue was Bismuth is also misplaced, since the determination regarding the theoretical- unwarranted and unexplained. respondent in that case closed an entire actual conversion factor, because it did NSC further argues that (1) its facility that only produced non-subject not first find that NSC had not acted to correction was submitted more than merchandise and then excluded these the best of its ability to provide this seven days prior to verification, (2) the closure costs from the G&A expense rate information to the Department. To the conversion factor is not a substantial calculation. In the instant case, KSC contrary, NSC argues its responses to revision to NSC’s response, but is simply disposed of assets and, as noted the Department’s requests for similar to the type of corrections
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Sales at Less than Fair Value: Certain 1994); Gray Portland Cement and NSC cites § 351.301(b)(1) of the Pasta from Italy, 61 FR 30326, 30352 Clinker from Mexico; Final Results of Department’s regulations, which states (June 15, 1996); Notice of Final Antidumping Duty Administrative that in an investigation, the time limit Determination of Sales at Less than Fair Review, 64 FR 13148, 13153 (March 17, for submitting factual information is no Value: Certain Cut-to Length Carbon 1999); Final Determination of Sales at later than seven days before the Steel Plate from the Russian Federation, Less than Fair Value: Certain Cut-to- commencement of verification. NSC 62 FR 61787, 61789 (November 19, Length Steel Plate from the People’s argues that it is the Department’s 1997); Notice of Final Determination of Republic of China, 62 FR 61964, 61985 practice to allow respondents to amend Sales at Less than Fair Value: Certain (November 20, 1997). Because these questionnaire responses to correct Freshwater Crawfish Tail Meat from The submissions were on the record at the limited errors within this period, and to People’s Republic of China, 62 FR time of verification, NSC states that the verify the accuracy of this information 41347, 41356 (August 1, 1997); Usinor Department could not refuse to verify at verification, and use the corrected Sacilor v. United States, 872 F. Supp. the conversion factor. NSC also states data. See, e.g., Porcelain-on-Steel 1000, 1008 (CIT 1994). NSC argues that that the Department would prejudice Cooking Ware from the People’s the Department has allowed this type of the rights of parties by removing Republic of China; Final Results of revision where the correction is limited information from the record without Administrative Review, 62 FR 32757, and the corrected information is following the procedures established in 32,759 (June 17, 1997); Notice of Final submitted early enough to allow the regulations, since the record serves Determination of Sales at Less than Fair adequate time for the Department to as the basis for the parties’ arguments Value: Certain Partial-Extension Steel analyze the revision. NSC argues that its before the Department or in a Drawer Slides from the People’s correction, which affects only a limited subsequent appeal. See Kerr-McGee Republic of China, 60 FR 54472 number of its U.S. sales, qualifies as a Chem. Corp. v. United States, 955 F. (October 24, 1995); Notice of minor correction. Supp. 1466, 1472 (CIT 1997). Determination of Sales at Not Less than NSC states that the timing of its NSC also notes that the Department Fair Value: Stainless Steel Bar from correcting submissions allowed the has broad discretion in choosing to Italy, 59 FR 66921, 66926 (December 28, Department and petitioner adequate accept untimely filed information onto 1994). See also Final Determination of time to review its changes. See Brother the record, and thus the parties must Sales at less than Fair Value: Certain Indus. Ltd. v. United States, 771 F. rely on the Department’s notice of Corrosion-Resistant Carbon Steel Flat Supp. 374, 383–84 (CIT 1991); Final rejection to determine the status of each Products from Australia, 58 FR 37079, Determination of Sales at Less than Fair submission. See Bowe-Passat v. United 37081 (July 9, 1993). NSC acknowledges Value; Steel Wire Rope from Korea, 58 States, 17 CIT at 338 (1993). Thus, NSC that the Department has rejected timely FR 11029, 11031 (February 23, 1993); argues that to reject the information now submissions which are substantial Antidumping: Circular Welded Carbon would deprive it of the opportunity to revisions of previously submitted data Steel Pipes and Tubes from Thailand; respond to the Department’s rationale or attempts to respond to a Final Determination of Sales at Less for rejecting the submission, and to questionnaire for the first time. See, e.g., than Fair Value, 51 FR 3384, 3386 demonstrate that the conversion factor Koenig & Bauer-Albert AG v. United (January 27, 1986). could have been easily derived, which States, 15 F. Supp. 2d 834, 847 n.6 (CIT NSC states, furthermore, that its will prejudice NSC by leading to the 1998); Final Determination of Sales at conversion factor is so simple that there continued use of facts available. Less Than Fair Value: Certain Cut-to- was no analysis that the Department or NSC argues that if, notwithstanding Length Steel From the People’s Republic petitioners could have performed on it, the above arguments, the Department of China, 62 FR 61964, 61987 and therefore the petitioner suffered no wishes to resort to use of the facts (November 20, 1997). NSC argues, disadvantage or prejudice from NSC’s available as to this issue, pursuant to however, that because submitting its submission of the conversion factor section 776(a)(2)(B) of the Act (19 U.S.C. conversion factor is not comparable to prior to verification. NSC adds that it § 1677e(a)(2)(B)), because NSC did not submitting a substantial quantity of new would not have been difficult for the submit its conversion factor within the information, and because it answered Department to incorporate the factor questionnaire deadlines, the Department the questionnaire (albeit incorrectly as into the margin calculation. NSC also must also consider the provisions of to this point) within the questionnaire argues that use of its conversion factor, 782(e) of the Tariff Act (19 U.S.C. deadline, it properly corrected its rather than use of facts available, § 1677m(e)). See 19 U.S.C. response by submitting the correction contributes to the accuracy of the record § 1677(e)(a)(2)(B); Borden, Inc. v. United within the terms of the seven-day rule. on which the margin is calculated—a States (‘‘Borden’’), 4 F. Supp. 2d 1221, NSC argues that the Department goal of the antidumping statute. See 1244–45 (CIT 1998). NSC argues that the accepts minor corrections even when Rhone-Poulenc, Inc. v. United States, conversion factor submission meets the the correcting submissions are untimely 899 F.2d 1185, 1191 (Fed. Cir. 1990). criteria set forth in § 1677m(e) (i.e., it is filed. See Bowe-Passat v. United States, NSC argues that, if the Department complete, capable of being verified, 17 CIT 335, 337–8 (1993). NSC asserts believed that the submissions capable of being used without undue that it is the Department’s practice to containing its conversion factor were difficulty, provided by NSC acting to the allow respondents to make minor untimely, the Department was required best of its ability, and submitted within revisions to or to supplement under § 351.301(c) and 351.302.(d) of its the deadline established for its questionnaire responses after the regulations to reject and return the submission) and thus is appropriate for preliminary determination, both prior to submissions to NSC with written notice use in the final determination. and during verification. See, e.g., Final stating the reason for the return. See NSC argues that its submission was Determination of Sales at Less than Fair Koenig & Bauer-Albert AG v. United timely because ‘‘in the context of Value: Antifriction Bearings (Other than States, 15 F. Supp. 2d at 847 n.6 (CIT § 1677m(e)(1), the ‘deadline’ cannot be
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NSC failure to provide the actual weight data, that in preparing its responses, it failed argues that untimely information can although NSC sought to have it do so. to check the records at the still be considered for a final NSC contends that the Department manufacturing facilities, despite two determination, provided that it meets cannot prevent inclusion on the record Department requests for information the requirements set out in § 1677m(e). of information relating to whether its maintained there. Petitioners argue that NSC states that the reference to a initial failure to provide these data was NSC’s failure to cooperate to the best of ‘‘deadline’’ in § 1677m(e) should be deliberate, and then conclude that it its ability warrants using adverse interpreted as compliance with the was unwilling to provide the data. See inferences. seven-day rule or the minor error rule, Usinor Sacilor v. United States, 872 F. Petitioners stated that NSC’s and thus NSC’s conversion factor Supp. 1000, 1007 (CIT 1994). arguments that its post-Preliminary should be used in the final NSC also states that the record as a Determination submissions regarding determination. whole evidences its extraordinary level the conversions factor were timely The Department, according to NSC, of cooperation. NSC states that the under the seven-day rule ignore 19 CFR may rely on information it does not Department cannot hold NSC to the § 351.301(c)(2), which authorizes the examine at verification. See Floral ‘‘standard of perfection’’ that it appears Department to set time limits for Trade Council v. United States, 822 F. to have applied in the preliminary questionnaire responses, and 19 CFR Supp. 766, 722 (CIT 1993); Micron determination (see NTN Bearings Corp. § 351.302(d), which authorizes the Tech., Inc. v. United States, 117 F.3d v. United States, 74 F.3d 1204, 1208 Department to return untimely filed 1386, 1396 (Fed. Cir. 1997); Certain Cut- (Fed. Cir. 1995)), and that the selection questionnaire responses. Petitioners to-Length Carbon Steel Plate from of adverse facts available was improper note that the Department cited Germany: Final Results of Antidumping given the minor adjustment in data § 351.302(d) in its supplemental Duty Administrative Review, 61 FR involved (see Usinor Sacilor v. United questionnaire issued on January 4, 1999. 13834, 13840 (1996). Moreover, NSC States, 872 F. Supp. 1000,1007 (CIT Petitioners contend that, under 19 CFR argues, there is no reason to doubt the 1994)). NSC argues that the Department § 351.301(c)(2), the seven-day rule does accuracy of its conversion factors given should not treat a respondent that not apply in these circumstances. the accuracy of other NSC information simply errs the same way it treats a Petitioners state that, because NSC demonstrated at verification. respondent that refuses to reply to part indicated that it would not and could NSC argues that, in the Preliminary or all of a questionnaire. not provide this data, and because the Determination, the Department did not NSC argues that the rate assigned to Department did not request it again, the make the requisite finding under section it in the Preliminary Determination was time for submitting new information 776(b) of the Tariff Act (19 U.S.C. punitive, and that antidumping law other than specific corrections had § 1677e(b)) and 19 C.F.R. § 351.308.(a) prohibits imposing punitive duties, passed. For these reasons, petitioners that NSC had failed to cooperate to the calling instead for remedial measures. argue that the Department was best of its ability; instead, it found only See NTN Bearings Corp. v. United authorized to use facts available. See that NSC had not provided the States, 74 F.3d 1204, 1208 (Fed. Cir. Cut-to-Length Steel from the People’s conversion factor requested. Therefore, 1995). For this reason, NSC contends, in Republic of China, 62 FR 61964, 61987 NSC argues, the Department was not choosing the ‘‘facts available,’’ the (November 20, 1997) (‘‘Steel from justified in using an adverse inference Department must, at a minimum, select China’’). in selecting facts available to apply to margins that are ‘‘nonaberrant,’’ and not Petitioners state that the cases cited the affected sales. See Ferro Union, Inc. abnormal. See National Steel Corp. v. by NSC at pages 17 and 18 of its case v. United States, Ct. No. 97–11–01973, United States (‘‘National Steel I’’), 870 brief are off point, because the Slip Op. 99–27, 1999 CIT LEXIS 24, at F. Supp. 1130, 1134–37 (CIT 1994). NSC respondents in those cases sought to *54 (March 23, 1999); D&L Supply Co. argues that it is a Department policy correct minor errors prior to v. United States, Ct. No. 92–06–00424, upheld by the court that a margin used verification. Petitioners argue that, in Slip Op. 98–81, 1998 CIT LEXIS 79, at as facts available must correspond to a the instant case, NSC is seeking to *4 (June 22, 1998). See also Certain substantial commercial quantity of a present new information which Cold-Rolled and Corrosion-Resistant respondent’s sales that fall within the contradicts earlier statements that the Carbon Steel Flat Products from Korea: mainstream of that respondent’s sales. information did not exist. Petitioners Final Results of Antidumping Duty See National Steel Corp v. United States argue that Steel from China, also cited Administrative Reviews, 64 FR 12927, (‘‘National Steel III’’), 929 F. Supp. in NSC’s brief, is on point, in that the 12947 (Mar. 16, 1999). NSC states that 1577, 1579–80 (CIT 1996). NSC argues Department rejected information a this two-part process the Department that the margin the Department used in respondent had previously failed to must undertake before using an adverse the Preliminary Determination for the provide in a questionnaire response. inference differs from the Department’s sales affected by this issue was the Petitioners also argues that even former BIA standard under prior law. highest possible, and that therefore it is under the seven-day rule, the See Antidumping Duties; Countervailing ‘‘aberrant.’’ Finally, NSC argues that the conversion submission was untimely Duties: Proposed Rule, 61 FR 7308, 7327 extent of increase in the total margin as filed. Petitioners then argue that NSC’s (1996). a result of this issue constitutes an three post-Preliminary Determination NSC argues that the Department may impermissible penalty. submissions reveal that NSC did not only apply an adverse inference if the Petitioners argue that NSC’s case brief make a reasonable inquiry to obtain the Department determines that a party’s and letters submitted after the weight conversion information in failure to provide information is Preliminary Determination regarding the response to the Department’s ‘‘deliberate.’’ See Preamble to Proposed theoretical-actual weight conversion questionnaires. For this reason, Rule, 61 FR at 7328; Borden Inc. v. factor amount to admissions that NSC petitioners argue that NSC’s case brief United States, 4 F. Supp. 2d at 25 (CIT did not act to the best of its ability in argument regarding the Department’s
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Department’s requirements for available margin applied to NSC’s U.S. Petitioners state that NSC’s submission supplying this information. See Borden, theoretical weight sales was aberrant, attempted to supply new information it 4 F. Supp. 2d at 1245. Petitioners note and that this may constitute the best had previously characterized as that NSC stated in its original information available. See National unattainable and nonexistent. This type questionnaire response that, despite the Steel I, 870 F. Supp. at 1136; accord of information, petitioners argue, is not Department’s request, the factor was National Steel Corporation v. United eligible for untimely admission. unnecessary, and stated in its States (‘‘National Steel II’’), 913 F. Petitioners argue that the Department supplemental questionnaire response Supp. at 596–597; see also Stainless acted correctly and should continue to that it could not calculate a factor, when Steel Sheet and Strip in Coils from use adverse inferences in the final in fact the required information was Mexico, 64 FR 124, 128 (January 4, results. within its records. Petitioners also point 1999). The facts available margin, Petitioners argue that all NSC to NSC’s statement that the conversion petitioners claim, was based on NSC information relating to the weight factor was ‘‘hardly the most pressing mainstream sales made under conversion factor was submitted after issue for NSC’s staff’’ when preparing its customary selling practices. the questionnaire deadlines and was response. See NSC Brief at 13. Finally, petitioners state that NSC was therefore untimely filed. Petitioners Petitioners conclude that the incorrect when it argued that its only act argue that under section 776(a)(2) of the requirements of section 782(e) are not of non-cooperation was to make a Tariff Act (19 U.S.C. § 1677e(a)(2)), the met because, if NSC had acted to the mistake in its answer. Petitioners argue Department was justified in rejecting best of its ability, the information would that NSC repeatedly withheld this information and applying facts have been timely filed and NSC would information within its control, and available. Petitioners add that the not have presented inaccurate issued statements as to why this statute mandates the use of facts explanations for its failure to provide information was not provided which available in these circumstances, and this information. were shown to be untrue. that to refrain from using facts available Petitioners reject as irrelevant NSC’s Department’s Position: We agree with would run contrary to the intent of the claims that its weight conversion petitioners that the Department should law, which is to encourage compliance information should be accepted because continue to apply adverse facts available with the Department’s questionnaires. its failure to provide the data when they with respect to NSC’s U.S. sales which See SAA at 868. were originally requested was are based on theoretical weight. Section Petitioners also argue that NSC’s inadvertent. Petitioners state that the 776(a)(2) of the Act provides that if an claim that the Department improperly statute does not require the Department interested party: (A) withholds rejected its weight conversion factor is to determine whether a reporting failure information that has been requested by without merit. Petitioners state that, is in good faith, and that the Department the Department; (B) fails to provide such contrary to NSC’s position, the seven- cannot excuse inaccurate responses on information in a timely manner or in the day rule does not apply to the the grounds of ‘‘honest mistake.’’ form or manner requested; (C) correlation submissions, since it does Petitioners argue that this would significantly impedes a proceeding not serve to extend the established undermine the Department’s ability to under the antidumping statute; or (D) deadlines for responses to the gather information. Petitioners state that provides such information but the Department’s questionnaires. See 19 the Department’s rejection of NSC’s information cannot be verified, as C.F.R. § 351.301(b) and (c). The responses regarding the conversion provided in section 782(i), the information NSC attempted to submit, factor as untimely was warranted under Department shall, subject to subsection petitioners argue, was the subject of a the statute and the Department’s 782(d), use facts otherwise available in specific request in a Department practice. reaching the applicable determination. questionnaire and was not provided by Petitioners argue that the Department Section 776(b) of the Act further the deadline set in that questionnaire. properly applied adverse facts available provides that adverse inferences may be Petitioners also rebut NSC’s argument because NSC failed to provide used where an interested party has that its weight conversion information information under its possession and failed to cooperate by not acting to the was properly submitted as a minor control to the Department in a timely best of its ability to comply with the correction. Petitioners state that NSC’s manner. These circumstances, Department’s requests for information. submission does not meet the standard petitioners contend, show that NSC did See also, SAA at 870. for minor corrections established in not act to the best of its ability in NSC reported most of its U.S. and Titanium Sponge from the Russian preparing this aspect of its home market sales on an actual weight Federation, 61 FR 58525, 58531 questionnaire response. See Borden, 4 F. basis, with the exception of a small (November 15, 1996). According to Supp. 2d at 1246; Ferro Union 1999 CIT percentage of U.S. and home market petitioners, the information NSC LEXIS 24, at * 55. Petitioner notes that, sales. The Department requested submitted was not a correction to contrary to NSC’s inference in its case conversion factors for these transactions anything, but was instead information brief, affirmative evidence of bad faith is in its original and supplemental supplied for the first time after being not required before the Department can questionnaires. Section 351.301(b)(1) of repeatedly withheld. make an adverse inference. See the Department’s regulations provides Petitioners state that NSC improperly Preamble, 62 FR at 27340. generally that, in an investigation, relied on section 782(e) of the Act (19 Further, petitioners reject NSC’s factual information can be submitted up U.S.C. § 1677m(e)) (the Department argument that the Department should be to seven days prior to verification. ‘‘shall not decline to consider precluded from making an adverse However, section 351.301(c)(2) states information that is submitted by an inference because much of NSC’s other that ‘‘[n]otwithstanding paragraph (b)’’,
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Thus, NSC is incorrect in factors to ensure apples to apples (‘‘failure to submit requested asserting that the requested conversion comparisons on the same weight basis. information in the requested manner by data is timely because it was submitted See Preliminary Determination of Sales the date specified may result in use of within the general deadline in section at Less Than Fair Value: Circular facts available under section 776 of the 351.301(b)(1). Any information Welded Non-Alloy Steel Pipe from Act and section 351.308.’’). Section submitted after the deadline specified in Brazil, 57 FR 17883, 17884 (April 28, 782(d) of the Act provides that, subject the questionnaire is untimely, regardless 1992). The need for timely filed, to 782(e), the Department may disregard of whether the general deadline in verifiable actual weights or conversion a deficient response. NSC argues that section 351.301(b)(1) has passed. factors is particularly acute with flat the Department should have used the In the instant case, NSC failed to rolled steel products in coils, including conversion factor data because it meets submit the requested information by those at issue. Assuming that the coils the criteria of section 782(e), i.e., it is December 21, 1998 (the deadline for the meet the specifications of the ordered complete, capable of being verified, original section B and C questionnaire product, the actual width and the actual capable of being used without undue responses), nor did it provide this thickness of the coils will vary within difficulty, provided by NSC acting to the information by January 25, 1999 (the the allowed tolerances, but the lengths best of its ability, and submitted within deadline for submission of information of the coils are not specified in the the deadline established for its requested in the section B and C available sales-related documentation. submission. We find this argument supplemental questionnaire). Despite Therefore, the total actual weight of the unpersuasive. The provision of the repeated requests for this information, coils sold in transactions denominated statute relied upon by NSC sets forth the NSC did not provide the requested data in theoretical weight can vary by a circumstances under which the until March 1, 1999 (nearly 3 months significant, but unknown amount, as the Department will consider information after the initial questionnaire deadline). actual dimensions of the coils cannot be provided by a respondent, even though NSC also argues that the conversion determined. Accordingly, the resulting it may be deficient in some respects. For data falls within the Department’s unit values that would be used in the example, if the freight information in a practice of accepting ‘‘minor Department’s price-to-price timely questionnaire response is corrections’’ to questionnaire responses comparisons could also vary by a missing or cannot be used, the after the response deadline has passed, significant, but unknown amount. The Department will not reject the entire provided the Department has the Court of International Trade has response; it will consider the remaining information in time to verify it. addressed the issue, upholding the information, provided that it is verified. However, a minor correction is normally Department’s decision to apply best There is simply no support for NSC’s a correction to information that was information available when a argument that this provision is timely submitted. In this case, NSC did theoretical-to-actual conversion factor essentially an exception to rejecting not timely submit the conversion data could not be verified. See Persico information that is submitted after the that it subsequently sought to correct. Pizzamiglio, S.A. v. United States, 18 established deadline. To the contrary, NSC’s only response was that the data CIT 299, 305 (CIT 1994). the first criterion in this provision is did not exist. While NSC characterizes Because NSC’s conversion data was that ‘‘the information is submitted by that statement as a correctable minor untimely and did not constitute a minor the deadline established for its error, we disagree. The evidence correction, the Department informed submission.’’ As noted above, NSC’s indicates that the requested information NSC at verification that it would not conversion data was not submitted by was routinely maintained by NSC in the accept the theoretical to actual weight the deadline established in the normal course of business, but that conversion factors and returned the data questionnaire. Therefore, it does not obtaining it was simply not a priority. on April 12, 1999. Section 351.302(d) of meet the criteria of section 782(e) and Regardless of who specifically knew the Department’s regulations provides the use of facts available for theoretical about this information, the sales that the Department will not retain in weight sales is warranted. department or the production the record information that is untimely department, the data existed and could or unsolicited. 19 C.F.R. § 351.302(d)(2). Because NSC failed to timely provide have easily been obtained. The fact that The fact that the Department did not requested information, in accordance NSC was able to provide this reject this information prior to with section 776 of the Act, the information shortly after the verification did not prejudice NSC. Department has made its determination preliminary determination also supports Many decisions are made between the with respect to the theoretical weight the conclusion that it could have done preliminary and final determinations, sales on the basis of the facts available. so within the time requested. Moreover, including, in some instances, the Further, the Department finds that NSC, it is impossible for the Department to rejection of submissions. While the by not submitting a theoretical weight determine whether NSC’s claims of Department must explain the basis for conversion factor it could have provided inadvertent error are valid or merely those decisions in its final when originally requested until well self-serving. Thus, they are insufficient determination, it is under no obligation after the time for response had passed, to rebut the evidence establishing that to do so before then. As evidenced by failed to cooperate by not acting to the the requested information was readily NSC’s case brief and the hearing best of its ability. NSC’s claims that it available. transcript, the company was well aware could provide a conversion factor in Furthermore, timely, accurate of the issue and has had ample March of 1999, but was unable to derive conversion information is necessary to opportunity to defend its interests. See such a factor when the questionnaire the margin calculation and can have a also Department’s response to Comment responses were due, does not withstand significant impact. In recognition of 13, ‘‘Ex Parte Communications’’, above. scrutiny. Although NSC argues that it steel industry practices, the Department Section 776 of the Act states that, if lacked the data necessary to calculate a routinely requests respondents in a party fails to provide information by conversion factor, as required by section
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782(c)(1) of the Act, it should have sales for which we had all necessary accurate estimate of the weight for the proposed to the Department the sort of information to calculate a margin. theoretical weight sales. NKK provided conversion factor it ultimately did Finally, we found nothing on the record this factor one week before verification calculate, explaining why a more to indicate that the transactions that we and argues that, pursuant to accurate one might not be practicable. selected were not conducted in a normal § 351.301(b)(1) of the Department’s Instead, NSC merely dismissed the manner. regulations, this was within the Department’s repeated requests. As Comment 30: Use of Facts Available established time limits. In addition, noted above, the data requested was for NKK’s Theoretical Weight Sales. NKK argues that the Department was routinely maintained by NSC in the NKK argues that the Department able to verify fully all submitted normal course of business. It was should reverse its decision to reject the information. Therefore, NKK argues, the readily available and would not have submitted prices for all of its home Department cannot rely on section 776 been burdensome to produce in a timely market sales sold on a theoretical weight of the Act to apply facts available, since manner. Moreover, NSC had other basis and to apply adverse facts none of the criteria in that provision information to use in providing a available to these sales. NKK claims that apply in this case. conversion factor. Nevertheless, NSC (1) its failure to provide conversion Petitioners, on the other hand, argue did not provide the information until factors for these sales prior to the that, in the Final Determination, the well after the established deadline. As preliminary determination was based on Department should reject the noted above, NSC’s claims of a legitimate misunderstanding of what theoretical-to-actual weight conversion inadvertent error are insufficient to the Department desired, (2) upon factor provided by NKK in its February overcome these basic facts. The fact that learning what the Department desired, 22, 1999 filing, and should apply NSC ultimately did provide such a NKK promptly submitted the requested adverse facts available to NKK’s factor is proof that it could have done conversion factors and (3) the theoretical weight transactions. so much earlier. Thus, because NSC Department fully verified the Petitioners assert that the Department failed to timely provide the requested calculation of the conversion factors. asked NKK to provide a theoretical-to- conversion data, it has ‘‘failed to NKK first explains that its failure to actual weight conversion factor in the cooperate by not acting to the best of its provide the conversion factor requested Department’s initial and supplemental ability to comply with an information by the Department was based on a section B questionnaires. Thus, request.’’ Therefore, in accordance with legitimate misunderstanding of what the petitioners argue, the Department made section 776(b) of the Act, the Department required. NKK asserts that, two clear requests for a theoretical-to- Department is authorized, to use an in its original questionnaire, the actual weight conversion factor, which adverse inference in choosing the facts Department asked NKK to specify, for it needed in order to calculate otherwise available. each and every transaction, whether the CONNUM-specific DIFMERs and costs. We have considered, but rejected, the quantity sold was based on actual According to petitioners, NKK twice suggestion made by NSC that the weight or some other basis, and if more refused to provide the conversion and, Department use a theoretical-to-actual than one weight was reported, to by choosing to provide the conversion conversion factor from another source as provide the conversion factor to arrive factor only after the Department had facts available. Because of the potential at a uniform quantity measure. NKK applied adverse facts available to NKK’s differences in theoretical-to-actual responded by stating that providing theoretical weight transactions, variances among producers and for such conversion factor was either demonstrated a clear intent to not different flat rolled products, impracticable or impossible, because it comply with the Department’s request. particularly those sold in coils, we did not weigh the coils sold on a This refusal to comply, in the opinion cannot determine that an alternative theoretical basis, and therefore did not of petitioners, warrants the application theoretical-to-actual conversion factor have the actual weights for these sales. of adverse facts available pursuant to would be appropriate in this situation. NKK states that when, in its section 776 of the Tariff Act (19 U.S.C. Therefore, we have used a facts supplemental questionnaire, the § 1677e). available margin for these sales. Department requested that NKK provide Petitioners argue that the Department In selecting a facts available margin, the conversion factor that it ‘‘used’’ to should not allow NKK to selectively we sought a margin that is sufficiently arrive at a uniform quantity measure, choose what information the company adverse so as to effectuate the statutory NKK assumed that the Department had will provide the Department. They purposes of the adverse facts available misunderstood NKK’s initial response, characterize NKK’s refusal to provide a rule, which is to induce respondents to so it repeated its rationale for not theoretical-to-actual weight conversion provide the Department with complete providing a conversion factor. After until adverse facts available had been and accurate information in a timely NKK complained that it was wrongly applied in the preliminary manner. We also sought a margin that is penalized in the Preliminary determination as ‘‘cherry picking’’ and indicative of NSC’s customary selling Determination, the Department pointed assert that in antidumping practices and is rationally related to the to KSC’s ability to respond to the same investigations the Department, not the transactions to which the adverse facts question. NKK states that KSC had respondent, should decide what available are being applied. To that end, provided not a conversion factor, but a information is required to ensure the we selected margins from individual more accurate estimate of the actual integrity of the process. See Ansaldo sales of CONNUMs that involved weight, and states that if the Department Componenti, S.p.A. v. United States, substantial commercial quantities and had clarified earlier that this was what 628 F. Supp. 198, 205 (CIT 1986); see fell within the mainstream of NSC’s it wanted, it could have complied also Olympic Adhesives, Inc. v. United transactions. Thus, as adverse facts earlier. States, 899 F. 2d 1565, 1572 (Fed. Cir. available, we have calculated an average Finally, NKK asserts that after it had 1990). of the highest calculated sale-specific a clearer understanding of what the In its rebuttal brief, NKK reiterates margins for each of the CONNUMs Department required, it was able to that it did not ‘‘refuse’’ to comply; involved in the theoretical weight sales; prepare a conversion factor (on a basis instead it misunderstood the that is, we used margins from sales of involving proprietary information) Department’s request for a theoretical the same CONNUMs with actual weight which could be used to calculate a more weight conversion factor. NKK stresses
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24363 that it maintained that it could not specific request; and fifth, the deadlines, and these data were not calculate the actual differences between application of NKK’s conversion factor submitted in accordance with those the theoretical and actual weight of its is easily accomplished in the deadlines, the conversion factors coils because, unlike the merchandise of Department’s programming.’’ In submitted on February 22, 1999, another respondent, NKK’s theoretical summary, NKK argues that there is no constituted untimely submitted weight sales were not, in fact, weighed. reasonable basis on which the information within the meaning of 19 See Olympic Adhesives, 899 F. 2d at Department can reject its theoretical C.F.R. § 351.301(c)(2)(ii). Because these 1573 (Fed. Cir. 1990) (it is not a refusal weight conversion factor. data were required to be provided in to provide requested information when Petitioners rebut NKK’s argument that NKK’s questionnaire responses, the a respondent answers that such NKK acted to the best of its ability. more general provision upon which information is not available). NKK Petitioners argue that NKK failed to NKK relies in stating that the factors rebuts petitioners’ assertion that NKK respond to the Department’s specific were timely provided (i.e., 19 C.F.R. did not comply with the Department’s requests for an actual to theoretical § 351.301(b)(1)) does not apply. Because request for a theoretical weight weight conversion factor. Petitioners NKK’s conversion factor data were not conversion factor and, furthermore, argue that the Department should timely submitted, the Department rebuts petitioners claim that NKK did therefore draw an adverse inference in rejected these factors in a letter dated not cooperate to the best of its ability. selecting adverse facts available for April 12, 1999. The Department, NKK argues that once it understood NKK’s theoretical weight transactions. therefore, has not considered these data the Department’s request, it provided See section 776(b) of the Act (19 U.S.C. or retained them in the official record of the appropriate theoretical weight § 1677e(b)). Petitioners assert that the the proceeding. See 19 C.F.R. conversion factor. NKK argues that Department, in its final determination, § 351.302(d)(1). The Department does because actual weight was not available should continue to apply adverse facts not agree with NKK’s assertion that for its theoretical weight sales and available to NKK’s theoretical weight these data were verified. Rather, at because it communicated this fact to the sales because NKK should not be verification the Department specifically Department, it did not provide the allowed to benefit through its failure to informed NKK and its counsel that the requested data as it believed that this comply with the Department’s requests. Department would not accept the data was not available. See Olympic See SAA at 868, 896 (1994). conversion factor and would Adhesives, 899 F. 2d at 1573. NKK Department’s Position: We agree with specifically instruct NKK to submit this further argues that the conversion factor petitioners that the Department should information on the record if the does not calculate the actual weight. continue to apply adverse facts available Department determined that it was NKK admits that it filed its conversion for NKK’s home market theoretical timely. However, any arguments as to factor after the original and weight sales. Section 776(a)(2) of the the accuracy of these data are moot Act provides that, if an interested party: supplemental questionnaire deadlines because the data in question are no (A) withholds information that has been but asserts that, ultimately, the longer part of the record before the requested by the Department; (B) fails to conversion factor was filed with the Department. Department seven days prior to provide such information in a timely verification. NKK asserts that the manner or in the form or manner Because NKK failed to timely provide Department’s own regulations establish requested; (C) significantly impedes a requested information, in accordance this as the latest date on which factual proceeding under the antidumping with section 776 of the Act, the information is due. See 19 C.F.R. statute; or (D) provides such information Department has made its determination § 351.301(b)(1). but the information cannot be verified, with respect to the theoretical weight NKK in its rebuttal brief, argues that as provided in section 782(i), the sales on the basis of the facts available. the Department routinely accepts Department shall, subject to subsection Further, the Department finds that NKK, untimely information when 782(d), use facts otherwise available in by not submitting a theoretical weight circumstances of a particular case reaching the applicable determination. conversion factor it could have provided warrant the need to accept untimely Further, section 776(b) of the Act when originally requested until well filings. See Bowe-Passat v. United provides that adverse inferences may be after the time for response had passed, States, 17 CIT at 337–38. NKK further used where an interested party has failed to cooperate by not acting to the argues that if certain conditions are met, failed to cooperate by not acting to the best of its ability. NKK’s claims that it the Department cannot legally decline to best of its ability to comply with the could calculate a conversion factor in consider certain information, even if the Department’s requests for information. February of 1999, but was unable to information does not meet all of the See also SAA at 870. derive such a factor when the Department’s requirements. NKK argues NKK reported all its U.S. and home questionnaire responses were due, does that its case meets the necessary legal market sales on an actual weight basis, not withstand scrutiny. Although NKK criteria and, thus, its theoretical weight with the exception of less than one argues that it did not understand what conversion factor should be considered percent of home market sales. Although the Department wanted when it by the Department. See section 782(e) of the Department requested conversion originally requested a ‘‘conversion the Act. Specifically, NKK argues in its factors for these transactions, NKK factor’’, although this was not stated at rebuttal brief that ‘‘first, the conversion refused to provide conversion factors for the time, and that it lacked the data factor was submitted before the latest these sales within the deadline necessary to calculate one, as required deadline for submission of factual established in the questionnaire. Rather, by section 782(c)(1) of the Act, it should information; second, the conversion it submitted these factors on February have proposed to the Department the factor can be and was verified; third, 22, 1999, almost 2 months after the sort of conversion factor it ultimately NKK fully explained how the deadline for the original questionnaire did calculate, explaining why a more conversion factor was arrived upon and response and one month after the accurate one might not be practicable. is therefore a reliable basis on which to deadline for the supplemental Instead, NKK merely dismissed the reach an applicable determination; questionnaire response. Because the Department’s repeated requests. The fact fourth, NKK provided the factor as soon Department requested these conversion that NKK ultimately did provide such a as it understood the Department’s factors in questionnaires with earlier factor is the proof that they could have
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As things, the accuracy and completeness its ability to comply with an explained in the SAA, this level is of the information submitted, and information request.’’ Therefore, in reached when ‘‘value added in the whether the party has hindered the accordance with section 776(b) of the United States is estimated to be calculation of accurate dumping Act, the Department is authorized, to substantially more than half the price of margins. As a result of the Uruguay use an adverse inference in choosing the the merchandise as sold in the United Round Agreements Act (‘‘URAA’’), facts otherwise available. States.’’ See Id. respondent asserts, the Department The only NKK sales affected by this Respondent states that 19 C.F.R. cannot apply an adverse inference failure to provide data were home § 351.402(c)(2) provides that the without first making factual findings on market sales. Therefore, as adverse facts Department will ‘‘normally determine the record to support any conclusion available we assigned the highest that the value added in the United that a party failed to act to the best of calculated adjusted price (NV) for any States by the affiliated person is likely its ability. See Preamble, 62 FR at CONNUM to the relevant transactions. to exceed substantially the value of the 27340. Furthermore, the Court of Comment 31: Use of Facts Available subject merchandise if the [Department] International Trade decisions in Borden, for KSC’s U.S. Sales Through CSI. estimates the value added to be at least Inc. v. United States, 4 F. Supp. 2d 1221 KSC asserts that the Department erred 65 percent of the price charged to the (1998) (‘‘Borden’’) and Ferro Union, Inc. both by including in its margin first unaffiliated purchaser for the v. United States (‘‘Ferro Union’’), Ct. No. calculation sales made through its U.S. merchandise as sold in the United 97–11–01973, Slip Op. 99–27 (March affiliate California Steel Industries States.’’ Respondent states that the use 23, 1999), 1999 CIT LEXIS 24, at *54 , (‘‘CSI’’) and in using adverse facts of terms such as ‘‘normally’’ and hold that the Department must base any available in connection with those sales. ‘‘estimates’’ indicates that the 65 finding that a respondent failed to Sumitomo Metal Industries, Ltd. percent test is not a bright line rule. cooperate on record evidence, not on (‘‘SMI’’), a non-selected respondent Respondent cites Tapered Roller the mere absence of information on the whose margin will be affected by KSC’s Bearings and Parts Thereof, Finished record. Therefore, respondent concludes margin, also urges that the Department and Unfinished, From Japan and that the Department must either correct should not use adverse facts available Tapered Roller Bearings, Four Inches or its preliminary decision to apply an for KSC’s sales to CSI, arguing that the Less in Outside Diameter, and adverse inference to these sales or fact that CSI is a petitioner shows that Component Thereof, From Japan, provide a factual basis for its conclusion KSC cannot ‘‘control’’ CSI, and is not, 63 FR 37344 (1998), as evidence that the that KSC did not act to the best of its therefore, responsible for CSI’s refusal to Department has applied the special rule ability. provide data requested by the without requiring the value added to be KSC’s second argument is that the Department. more than 65 percent. CSI added administrative record for this case With respect to the first point, KSC substantial value to the subject establishes beyond question that KSC argues that the Department should have merchandise it obtained from KSC, acted to the best of its ability. See based the margins for its CSI sales on contends the respondent, because the Preamble, 62 FR at 27341 (the sales made to unaffiliated companies, in value added by CSI represents more Department will make determinations accordance with § 772(e) of the Act (the than half of the price charged to the first regarding a respondent’s acting to the ‘‘Special Rule for Merchandise With unaffiliated customer buying galvanized best of its ability on a fact-and case- Value Added After Importation’’). With steel and is ‘‘on the cusp’’ of being over respect to the second point, KSC argues half the price charged for cold-rolled specific basis); see also, NEC Home that, if The Department does calculate a steel and pipe. Respondent concludes Electronics, Ltd. v. United States, 54 F. margin based on the CSI sales, it should that the significant value added by CSI, 3d 736, 742 (Fed. Cir. 1995); Atlantic not treat CSI’s refusal to provide the combined with the provision’s purpose Sugar, Ltd. v. United States, 744 F. 2d requested data as a lack of cooperation of simplifying the Department’s 1556, 1559 (Fed. Cir. 1984) (The on the part of KSC. Therefore, KSC determination, should permit the Department’s determinations must be argues, The Department should not application of the special rule. based on a complete and objective apply adverse facts available to the Therefore, KSC urges, the Department evaluation of the actual evidence on KSC’s CSI sales. should use the weighted average margin record). Respondent contends that all of other sales of identical subject the evidence in the instant case Decision Not To Apply the ‘‘Special demonstrates that KSC acted to the best Rule’’ merchandise sold by KSC for the volume of hot-rolled steel sold to CSI in of its ability, with no implication that Respondent contends that the making its determination. KSC was uncooperative or that KSC Department’s application of adverse impeded the investigation. Specifically, facts available in its Preliminary Use of Adverse Facts Available for the KSC claims that the record shows that Determination was unlawful because CSI Sales it: (1) made repeated written and oral the subject merchandise from KSC Respondent’s overall conclusion that requests urging CSI to cooperate in which is further processed by CSI the Department’s application of adverse providing the data The Department had qualifies for the simplified reporting facts available as to the CSI sales is requested, (2) offered to provide CSI provision or ‘‘special rule for unsupported by law or fact is based on with assistance in furnishing this data to merchandise with value added after five broad arguments. The Department, (3) offered CSI the importation’’ contained in the statute at First, respondent states that the option of reporting proprietary 19 U.S.C. § 1677a(e)(1). The purpose of Department cannot draw an adverse information it did not want to reveal to this provision, according to the SAA, is inference unless it has found that a KSC directly to the Department, and (4) to give the Department a ‘‘simpler and party did not act to the best of its ability submitted a voluminous amount of more effective method for determining in responding to the Department’s information during the course of the export price’’ in situations where the information requests. Respondent investigation and answered all
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KSC’s third point is that its extensive is illegal, KSC contends, is that the KSC asserts that the federal courts cooperation prohibits use of the most Department has refused to take into have been vigilant in rejecting claims adverse facts available, even if the consideration the record evidence that related corporate entities Department should find that it did not rebutting such a presumption in this necessarily have access to each other’s meet the ‘‘best of its ability’’ standard, case. KSC also claims that the data. KSC argues that, in this respect, because KSC ‘‘substantially cooperated’’ Department’s application of the the federal courts have looked to other in this investigation. See Roller Chain, affiliation definition in this manner factors such as whether the requested Other Than Bicycle from Japan: Final raises federal due process concerns. documents were available during the Results and Partial Recission of Respondent points out that 19 U.S.C. regular course of business and whether Antidumping Duty Administrative § 1677(33) provides that one party is the two parties operated as a single Review, 63 FR 63,674 (1998); Certain deemed to ‘‘control’’ another party business unit. See Cooper Industries, Cut-to-Length Carbon Steel Plate from when the first party is ‘‘legally or Inc. v. British Aerospace, Inc., 102 Sweden, 62 FR 46,947, 46,948 (1997); operationally in a position to exercise F.R.D. 918, 919–20 (S.D.N.Y. 1984); Final Results of Review of Antidumping restraint or direction over the other Camden Iron & Metal, Inc., v. Marubeni Duty Administrative Review of Certain person.’’ Respondent argues that, Am. Corp., 138 F.R.D 438, 442 (D.N.J. Pasta from Italy, 61 FR 30326, 30329 although it is reasonable to presume that 1991); see also Glaxo, Inc. v. Boehringer (1996) (the Department’s normal if parties are related under the statute Ingelhaim Corp., 40 U.S.P.Q. 2d (BNA) practice is to refrain from applying the they are in the best position to obtain 1848, 1850, 1851 n.4 (D.Conn. 1996) most adverse inference possible in information from each other, the (the mere fact that documents are in the calculating a margin when a party has judicial precedents supporting this possession of a joint venturer does not been cooperative). proposition do not also support the automatically establish ‘‘control’’ over Respondent also refers to the previous Department’s application of a non- them). Respondent claims that the distinction between cooperative and rebuttable presumption that this is the evidence on record demonstrates that uncooperative parties under the case. Thus, KSC argues, the Department KSC did not have the ability to obtain Department’s pre-URAA two-tiered Best may not ignore evidence on the record the requested information from CSI and Information Available (‘‘BIA’’) that demonstrates that the parties do not that the Department learned during methodology. Under this methodology, have access to each other’s documents verification that, because of the the most adverse BIA was reserved only or employees. See Koyo Seiko Co. v. structure and past practice of the joint for parties that refused to provide United States, 92 F. 3d 1162 (Fed. Cir. venture, it was impossible for KSC to requested information, not those parties 1996); Helmerich & Payne, Inc. v. impose its will upon CSI. The fact that that were cooperative and made every United States (‘‘Helmerich’’), 24 F. CSI is a petitioner (as well as a effort to obtain and provide information Supp. 2d 304 (CIT 1998); Usinor Sacilor respondent) in this case is, according to requested by the Department. v. United States (‘‘Usinor’’), 907 F. KSC, the best evidence that KSC does Respondent contends that, even under Supp. 426, 428–29 (CIT 1995); Koyo not have operational control over CSI. the pre-URAA law, the Department Seiko Co. v. United States, 905 F. Supp. Respondent argues that any action by would have been prohibited from 1112 (CIT 1995); Holmes Prods. Corp v. a federal agency that is taken in total applying an adverse inference against United States, 795 F. Supp. 1205, 1206– disregard of the administrative record KSC in the instant case. Respondent 07 (CIT 1992). raises due process concerns. See NEC states that the Department’s failure to Respondent argues that, in Helmerich, Corp. v. United States, 151 F. 3d 1361, follow its own practice as to KSC in this although the Court upheld the 1370 (Fed. Cir. 1998) cert. denied, 119 case ‘‘constitutes abusive agency action’’ Department’s decision to apply the facts S. Ct. 1029 (1999) (if application of an and that it is incomprehensible and available in that pre-URAA case in excessive dumping margin as a result of unjustifiable for the Department to which the respondent twice failed to an adverse inference deprives importers ignore KSC’s immense efforts to comply complete the questionnaire, it made a of significant property interests, a with the Department’s requests for point of noting that it would have cognizable due process claim under the information. reached a different decision under the Fifth Amendment of the Constitution KSC’s fourth argument is that the post-URAA law. In Usinor, respondent will exist); see also Techsnabexport, Department’s application of an adverse asserts, the Court had held that the Ltd. v. United States, 795 F. Supp. 428, inference based on the ‘‘erroneous Department should not have applied 435–36 (CIT 1992) and cases cited presumption’’ that, because they are severely adverse BIA when missing data therein. affiliated KSC has sufficient ‘‘control’’ were beyond the control of the Respondent asserts that the Supreme over CSI to compel that company to respondent; on remand, the Department Court has established a three-part test to provide the requested data disregards agreed that the respondent could not determine what procedures are required the contrary evidence on record. realistically have collected the required to comport with due process. This test Thereby, KSC argues, The Department data from its related subsidiaries. balances the competing rights and violates both the antidumping statute Respondent notes that, in the Preamble interests at issue. See Mathews v. and the Constitution. Respondent to its ‘‘facts available’’ regulation (19 Eldridge, 424 U.S. 319, 334 (1976). If a asserts that the Department’s decision to C.F.R. § 351.308), the Department statute is found to involve an apply adverse facts available was based acknowledged that it agreed with the ‘‘irrebuttable presumption,’’ the focus of on the erroneous assumption that KSC substance of an argument that where a this balance shifts to whether ‘‘the has operational or legal control over CSI respondent has made a good-faith effort presumption is not necessarily or and, as a result, could have obtained the to obtain information from an affiliate, universally true in fact,’’ and whether requested information from CSI. failure of the affiliate to provide the ‘‘the government has available a
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‘reasonable alternative means of making administrative process through its own evidence that the Department will apply the crucial determination.’’’ See Rogers unresponsiveness. adverse facts available when a v. United States, 575 F. Supp. 4, 9–10 In their rebuttal, petitioners allege respondent fails to meet its burden of (D. Mont. 1982); Vlandis v. Kline, 412 that the Department’s application of demonstrating that it cannot obtain U.S. 441, 452 (1973) Universal adverse facts available for KSC’s sales requested information in the possession Restoration, Inc. v. United States, 798 F. through its affiliate CSI is warranted by of another party. According to 2d 1400, 1406 (Fed. Cir. 1986). the facts and the law, and should not be petitioners, KSC failed to meet its Respondent contends that the modified in the Department’s final burden to establish in that it acted in the Department’s application of adverse determination. Petitioners’ rebuttal best of its ability to obtain the requested facts available against KSC in the instant argument is based on two points. First, information from CSI and that it could case based on the refusal of an ‘‘adverse they argue, the Department’s decision to not have exerted control over CSI to affiliate’’ to provide information apply adverse facts available is obtain the information. Petitioners requested by the Department amounts to appropriate under § 776 of the Act. conclude that, despite CSI’s a denial of due process rights by Petitioners argue that KSC failed to act Shareholders’ Agreement, which shows improperly raising an irrebuttable to the best of its ability by not that KSC had the right and the powers presumption. Respondent argues that responding to Section E of the to exert such control, KSC did not the facts on the record show that it is Department’s questionnaire regarding attempt to exercise any of these rights not ‘‘universally true’’ that a respondent CSI’s further manufactured sales. KSC’s and powers. can control the actions of its affiliate, claim that, based on the record, the Petitioners support this conclusion by Department can find only CSI to be particularly when the affiliate is a arguing that KSC failed to have its uncooperative, and its claim that the petitioner in the case. See Steven M. v. representatives on CSI’s Board of Department’s decision to apply adverse Gilhool, 700 F. Supp. 261, 264–65 Directors call a board meeting to address facts available is unlawful because it is (E.D.P. 1988) (irrebuttable presumption the lack of cooperation received by KSC based on the presumption that KSC has can only survive if it is universally from CSI, that the lack of cooperation operational or legal control over CSI, true). In this case, respondent argues, was not discussed during a regular lack merit. According to the petitioners, the Department has a reasonable quarterly CSI board meeting, that during alternative to an irrebuttable the factual basis underlying the verification KSC officials acknowledged presumption available. The facts on Department’s decision to apply adverse that this issue was not discussed among record enable it to determine whether facts available is supported in the record the joint venture partners, and more KSC actually does ‘‘control’’ CSI, rather and provides adequate justification for significantly, nothing on the record than presuming such control exists. the decision. Petitioners state that the KSC’s fifth and final point is that the Department has determined that it will shows that KSC made any efforts to Department’s decision to use the most consider an affiliated party’s non- enforce its right under the Shareholders’ adverse facts available contradicts compliance with the Department’s Agreement. Petitioners argue that KSC important policy considerations requests ‘‘as an omission imputable to should have exerted control over CSI underlying the antidumping law. One the respondent’’ which merits the and states that the fact that CSI is a purpose of the adverse inference application of adverse facts available. petitioner in the immediate provision is to ensure that parties do not See Silicomanganese From Brazil, 62 FR investigation does not establish that obtain a more favorable result by not 37869, 37873 (1997) (‘‘Silicomanganese KSC lacked control over CSI. Petitioners cooperating in an agency proceeding. In From Brazil ’’) and Roller Chain, Other also argue that KSC has not this case, however, if the Department Than Bicycle, From Japan, 61 FR 64328, substantiated on the record its claims applies the adverse inference, CSI, the 64329 (1996). Due to KSC’s significant that CSI’s officers refused to cooperate uncooperative petitioner, will benefit ownership interest, CSI is undisputedly in responding to the Department’s from refusing to provide information as affiliated with KSC. As a result, requests. The three letters from CSI’s a result of increased antidumping duties petitioners argue, KSC had the burden CEO placed on the record by KSC, assessed on competing imports, whereas of obtaining the requested information according to petitioners, do not KSC, which has been a cooperative and providing it to the Department constitute refusals by CSI to provide the respondent, will be penalized by a without regard to any alleged lack of requested information. Petitioners cite significantly increased margin. cooperation from CSI. Therefore, the letters dated October 29, 1998, Respondent contends that it is arguable omission of CSI’s further manufactured November 6, 1998 and December 14, that KSC would have been in a better sales information is imputed to KSC and 1998 as evidence for this conclusion. position if it had refused to cooperate subjects KSC to the application of Petitioners point out that KSC’s counsel altogether, given that the highest margin adverse facts available. claimed for the first time during alleged in the petition was lower than Petitioners cite Silicomanganese From verification that, in response to CSI’s the margin calculated by the Brazil and Koyo Seiko Co., Ltd. v. concern regarding the disclosure of Department for KSC in its preliminary United States, 92 F. 3d 1166 (Fed. Cir. highly sensitive information as determination. 1996) as evidence that the respondent, evidenced in these letters, KSC’s Finally, respondent claims that CSI, in order to be excused from submitting counsel offered to compile a response by controlling what information the requested information in the possession maintaining the confidentiality of the Department has available for calculating of the affiliate, bears the burden of CSI’s information, but that the offer was a margin, has ‘‘usurped the investigatory demonstrating that it does not have rejected by CSI. Petitioners argue that role’’ assigned to the Department by control over and cannot compel an there is no evidence of such an offer by defining the scope of the record. See affiliated party to submit such KSC counsel in the letters provided for Allied-Signal Co. Aerospace v. United information. Petitioners also cite the record or in KSC’s responses to the States, 996 F.2d 1185, 1191 (Fed. Cir. Tapered Roller Bearings and Parts Department’s supplemental 1993). Respondent concludes that the Thereof, Finished and Unfinished From questionnaires. Because KSC failed to Department cannot allow any party, the People’s Republic of China, 63 FR substantiate and establish that it acted including a petitioner, to benefit from 63842, 63857 (1998) and to the best of its ability in regard to CSI’s an attempt to control the results of the Silicomanganese From Brazil as further manufactured sales, petitioner
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24367 conclude that the Department’s decision based on average purchase prices and sales in determining a producer’s to apply adverse facts available is reselling prices set forth by KSC in its margin. The degree of value added by justified and the Department should November 10, 1998 letter to the CSI simply does not reach this continue to use adverse facts available Department, CSI’s sales of further threshold, especially in view of the fact in its final determination. manufactured merchandise, which that the CSI sales represent a very Petitioners’ second point is that the include cold-rolled steel, corrosion- significant portion of KSC’s total U.S. Department’s choice of facts available resistant steel and pipe, do not meet the sales. It would not be appropriate to represents a valid exercise of its 65 percent threshold outlined in the abandon the Department’s normal discretion and is consistent with the Department’s regulations. Petitioners practice in this case for a much vaguer statutory purpose of applying adverse argue that KSC’s claim that the 65 standard whereby the Department fact available. Petitioners disagree that percent test should not be seen as a would obtain proxy values for sales KSC’s cooperation in other aspects of ‘‘bright-line rule’’ must be rejected through any affiliate whose value added the investigation prohibits the use of because the Department has stated that could be considered ‘‘substantial.’’ adverse facts available and that this the 65 percent rule is, in fact, a ‘‘bright- Thus, the Department properly has not remedy contravenes the purpose line test.’’ See Preamble, 62 FR at 27352. applied the ‘‘special rule’’ of section underlying the use of adverse Even if KSC could satisfy the 772(e) of the Act to the CSI sales. inferences. Petitioners cite § 776(b) of Department’s test, petitioners argue that Use of Adverse Facts Available for the the Act which discusses the information the special rule would not excuse KSC’s CSI Sales the Department may rely on in selecting failure to report CSI’s further adverse facts available and the manufacturing information requested by It is undisputed that KSC’s sales of discretion afforded to the Department in the Department because the special rule subject merchandise through its affiliate the application of adverse facts is intended to relieve administrative CSI are constructed export price available. Petitioners contend that the burden, not excuse the reporting of (‘‘CEP’’) sales. Therefore, the statute Department’s analysis in employing required data. Petitioners contend that, requires that the U.S. price of these sales adverse facts available for KSC’s sales in this case, the Department’s for margin calculation purposes be through CSI in the its Preliminary calculations would not have been calculated by using CSI’s price to the Determination was in complete burdensome given that CSI’s further first unaffiliated U.S. customer and accordance with the Department’s manufacturing consisted predominantly adjusted, pursuant to section 772(c) and practice. See Stainless Steel Wire Rod of one or two additional processes. (d) of the Act, to account for certain From Italy, 63 FR 40422, 40428 (1998). Petitioners conclude that, even if the 65 expenses incurred by CSI and KSC. Petitioners also cite National Steel I, 870 percent threshold had been met, it is These adjustments include, but are not F. Supp. at 1136 and Certain Welded likely that the Department would have limited to, the costs associated with Carbon Steel Pipes and Tubes from used the actual further manufacturing further manufacturing performed by CSI Thailand, 62 FR 53808, 53820–53821 data rather than one of the alternatives prior to its sale to the unaffiliated (1997) as evidence that, even assuming permitted by the statute. Accordingly, customer. In essence, for purposes of the that KSC was substantially cooperative, state petitioners, there is no justification CEP calculation, the statute treats the the Department had broad discretion to for KSC’s failure to respond to the exporter and the U.S. affiliate select a level of adverse facts available Department’s Section E questionnaire collectively, rather than independently, that appropriately addressed KSC’s and as a result, the Department’s regardless of whether the exporter failure to respond to the Department’s application of adverse facts available controls the affiliate. Accordingly, Section E questionnaire for its sales remains appropriate. KSC’s argument that it does not through CSI. In response to KSC’s Department’s Position: We disagree ‘‘control’’ CSI is misplaced and claims that the remedy violates the with KSC with respect to the use of the irrelevant. purpose of the underlying use of ‘‘special rule’’ and with KSC and Because the statute requires that the adverse inferences, petitioner argue that Sumitomo with respect to the Department base its margin calculations this remedy of applying adverse facts Department’s decision to use adverse for the CSI sales on record information available will serve to induce facts available for the CSI sales. concerning the CSI sales themselves, the respondents to use all reasonably Department required that KSC and CSI, Decision Not To Apply the ‘‘Special available means to exercise control over collectively, provide the necessary price Rule’’ their affiliates in order to ensure that and cost data for KSC’s U.S. sales complete and accurate reporting of data As KSC has implicitly acknowledged, through CSI. It is also undisputed that is made to the Department for the the extent to which CSI adds value to KSC and CSI failed to provide this calculation of accurate dumping KSC merchandise through further necessary information. Because the margins. In conclusion, petitioner state processing does not meet the information possessed by a U.S. affiliate that the Department, in its final Department’s normal 65 percent such as CSI is essential to the dumping determination, should adhere to its standard even for the further determination, the antidumping law is decision to apply adverse facts manufactured products with the highest thwarted if the affiliate refuses to available. level of value added. Furthermore, for provide the necessary information. products further manufactured into Section 776(a) of the Act requires that Substantial Value Added cold-rolled steel and pipe, the value the Department use facts otherwise Petitioners contend that KSC’s added is less than half of the price available when necessary information is argument that it should not have been charged to CSI’s unaffiliated customer not on the record, or an interested party required to report further manufacturing and a small amount of KSC’s subject withholds requested information, fails information because CSI added merchandise is resold by CSI ‘‘as is,’’ to provide such information in a timely substantial value to KSC’s subject with no value added at all. manner, significantly impedes a merchandise is devoid of merit. See Although the 65 percent benchmark is proceeding, or provides information that § 772(e) of the Act (19 U.S.C. not an inflexible rule, it does provide cannot be verified. As the necessary § 1677a(e)); SAA at 825; and 19 C.F.R. useful guidance as to when it is no information with respect to these sales § 351.402(c)(2). Petitioners contend that, longer appropriate to consider certain is not on the record, the Department
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Generally, relationship with this 50/50 joint calculating the margins for the CSI sales. however, the record shows that, venture, as detailed in the Home Market Section 776(b) of the Act authorizes although KSC could have been much Sales Verification Report, dated March the Department to use an adverse more active in obtaining the cooperation 26, 1999, this did not constitute making inference in determining the facts of CSI in this investigation, it limited its its best efforts to obtain the data. otherwise available whenever an efforts to merely requesting the required Because the Department did not rely interested party has failed to cooperate data and otherwise took a ‘‘hands-off’’ upon any ‘‘irrebuttable presumption’’ of with the Department by not acting to the approach with respect to CSI’s alleged control arising out of the statutory best of its ability to comply with decision not to provide this data. For definition of affiliation in reaching this requests for information. KSC and CSI example, KSC officials stated that KSC determination, KSC’s arguments based have neither provided the data on CSI’s did not instruct its members of the CSI on this theory, including its due process sales, as requested by the Department, board to address the issue, did not argument, have no merit with respect to nor demonstrated to the Department’s invoke the Shareholder’s Agreement, this case. satisfaction that this is not possible. and did not discuss this issue with its Finally, KSC’s claim that use of an Therefore, the Department finds that joint venture partner. This does not adverse inference in this case will KSC and CSI have failed to cooperate by reach the ‘‘best efforts’’ threshold contradict the Department’s policy of not acting to the best of their ability to embodied in § 776(b). Furthermore, the not rewarding uncooperative parties is comply with the Department’s requests fact that KSC has provided a great deal likewise incorrect. As KSC notes, one for information with respect to the CSI of information and has substantially purpose of an adverse inference is to sales. Therefore, we have used an cooperated with respect to other issues ensure that parties do not obtain a more adverse inference in selecting the facts does not relieve it of the requirement to favorable result by not cooperating. available with respect to the CSI sales. act to the best of its ability to provide Allowing a producer and its U.S. However, KSC misconstrues this to the requested CSI information. With mean that the Department can or should affiliate to decline to provide U.S. cost respect to the CSI sales, KSC has and sales data on a large portion of their somehow take into account the effect of provided only minimal volume and a dumping margin on other business U.S. sales would create considerable value information and has not acted to opportunities for such parties to mask interests of an interested party. We the best of its ability to obtain further disagree. In applying an adverse future sales at less than fair value information. Thus, as to the missing CSI through the U.S. affiliate. The fact that inference, the Department can only data, it cannot be said that KSC was reasonably ensure that the dumping the affiliate is a petitioner does not allay fully cooperative and made every effort such concerns. Thus, this fact does not margin determined for the subject to obtain and provide the information merchandise is not less than the actual constitute an exception to the principle requested by the Department. Therefore, that the Department may make an margin we would have found had the even though full cooperation by KSC adverse inference with respect to sales parties cooperated. We cannot alone would not constrain the for which data is not provided unless reasonably predict or weigh the Department from using adverse facts the foreign exporter and its U.S. affiliate multitude of effects this might or might available specifically with respect to the have acted to the best of their ability to not have on the parties involved. In this CSI sales, we do not agree with KSC’s provide such data. case, we can only ensure that KSC and While it is clear that KSC and CSI argument that it has ‘‘substantially CSI do not obtain a more favorable collectively have not acted to the best of cooperated’’ during this investigation. dumping margin on subject their ability, we also disagree with As indicated above, the Department merchandise. As an affiliated importer KSC’s claim that it alone acted to the has based its decision to use adverse and/or seller of KSC’s subject best of its ability. At verification, the facts available on its finding that KSC merchandise, CSI will be affected by Department investigated this claim. See and CSI collectively did not act to the any margin assigned to KSC’s exports of KSC Verification Report at 20–23. After best of their ability with respect to the this merchandise. Neither KSC nor CSI careful consideration of all of the CSI data, not, as KSC claims, on any will be rewarded with more favorable evidence on record, the Department ‘‘presumption’’ that solely because the dumping margins. Any benefit accruing finds that KSC did not act to the best of two companies are ‘‘affiliated’’ within to CSI from its non-cooperation will its ability with respect to the requested the meaning of the statute, KSC flow not from its role as an affiliate- CSI data. necessarily has sufficient control to respondent, but from its role as a U.S. CSI is a joint venture between KSC compel CSI to provide this data. As KSC producer of non-subject merchandise. and a large Brazilian mining operation, has noted, the Department makes such Furthermore, KSC, as a 50 percent Companhia Valle do Rio Doce decisions on a case-specific basis, using shareholder in CSI, will share in any (‘‘CVRD’’). Through their respective U.S. the totality of the record evidence. See such benefit. In addition, we note that affiliates, KSC and CVRD each own 50 Preamble, 62 FR at 27341. That is what it is not the use of the adverse inference percent of CSI. KSC’s claim that it acted the Department has done in this case. which allows KSC’s U.S. affiliate to to the best of its ability with respect to The Department provided KSC with restrict the scope of data on the record— this issue rests on its assertion that it extensive opportunities, prior to and at it is CSI’s decision to withhold that data was powerless to compel CSI to provide verification, to explain and document and KSC’s decision to acquiesce in this the Department with this data, given its efforts to obtain the necessary data, posture. Neither KSC nor CSI should be that CSI, as a petitioner in this case, and has considered all of this data in relieved of the obligation to report data refused to cooperate. Some of the most making its determination. While the on sales through CSI in this or future important evidence contradicting KSC Department has considered that the proceedings. Thus, while KSC’s on this issue, including information record supports KSC’s claim that it did business relationships may involve pertaining to the board and the make some effort to obtain the data and certain internal conflicts of interest, the Shareholders’ Agreement, constitutes that CSI’s management rebuffed these use of an adverse inference in business proprietary information, and efforts, the record also shows that KSC determining the dumping margins on are discussed only in our proprietary essentially acquiesced in CSI’s decision CSI sales does not contradict the Analysis Memorandum, which is hereby not to provide this data. Given KSC’s Department’s policies.
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For the final determination, the apply the appropriate exchange rate. these sales should have been excluded Department has used as adverse facts NKK states that when the Department from the calculation once the facts available the second highest calculated calculates FUPDOL in an exporter price available margins were assigned. margin for an individual CONNUM. calculation, U.S. direct and indirect Petitioners argue that the Department Although no party commented on the expenses are not deducted from U.S. should reject NSC’s argument and rate chosen as facts available in the price in the calculation of net U.S. price follow its established practice of preliminary determination, we have (NETPRIU). Thus, U.S. direct and determining the overall weighted reexamined our choice for this final indirect expenses, through a average percent margin across all determination. In the preliminary commission offset adjustment, are CONNUMS by using the value (U.S. determination, we used as the facts added to normal value when calculating price by CONNUM quantity by available margin the highest margin by FUPDOL. However, in calculating CONNUM), not just the quantity. CONNUM. However, upon reexamining NKK’s preliminary dumping margin, the Petitioners argue that unless this value that decision, we find that the margin Department did not convert U.S. direct is used in the calculation, the impact of chosen was not sufficiently within the and indirect expenses prior to the facts available will be diminished. mainstream of KSC’s sales in that the FUPDOL calculation and, as a result, Secondly, NSC argues that because rate was derived from sales of a product yen expenses were mistakenly added to the Department matches prime products that accounted for a very small portion a dollar unit value in calculating to prime products, and because there of KSC’s total sales as well as the FUPDOL. NKK provided suggested were no U.S. sales of non-prime highest rate by CONNUM. In selecting computer programming language for use merchandise, sales of non-prime the facts available margin for the final in correcting this error. Petitioners have merchandise were effectively eliminated determination, we sought a margin that not commented on this issue in their from the preliminary results margin is sufficiently adverse so as to effectuate rebuttal brief. calculation program. However, NSC the statutory purposes of the adverse Department’s Position: The states, the Department erred by facts available rule to induce Department agrees that this was an combining home market sales of prime respondents to provide the Department error, and has corrected the yen to and non-prime merchandise in the same with complete and accurate information dollar exchange rate conversion error in CONNUM to calculate the percentage of in a timely manner. We also sought a its final determination. Pursuant to sales above and below the cost of margin that is indicative of KSC’s § 351.224 of the Department’s production. NSC argues that this creates customary selling practices and is regulations, the effective date of this a distorting error in the determination of rationally related to the transactions to correction will be 30 days after the filing whether sales of a particular CONNUM which the adverse facts available are of the alleged clerical error. were made below cost. Thus, NSC being applied. To that end, we selected Comment 33: Changes to NKK’s argues, the preliminary margin a margin for a CONNUM that involved Preliminary Margin Calculation. determination is contrary to the substantial commercial quantities and Petitioners assert that the Department Department’s policy of conducting thus fell within the mainstream of KSC’s should correct three ministerial errors in separate cost tests on prime and non- transactions based on quantity. Finally, the arm’s length and model match prime products. See Notice of Final we found nothing on the record to programs used in calculating NKK’s Determination of Sales at Less than Fair indicate that the sales that we selected dumping margin. First, petitioners state Value: Stainless Steel Plate in Coils were not transacted in a normal manner. that the Department should add the (‘‘SSPC’’) from the Republic of Korea, 64 variable OVERRUNH to the KEEP FR 15444, 15455 (March 31, 1999); Changes to the Department’s SAS statement for home market sales at line Notice of Final Results of Antidumping Computer Programming 786 of the model match program. Duty Administrative Review: Certain Comment 32: NKK’s Clerical Error Second, petitioners argue that The Cold-Rolled Carbon Steel Flat Products Allegation. Department should revise line 98 from the Netherlands, 61 FR 48465, NKK requests that the Department (pertaining to the arm’s length test) in 48466 (September 13, 1996). Petitioners correct a ministerial error in the the manner indicated in its case brief. have not commented on this argument. Department’s preliminary calculation of Finally, petitioners argue that the Department’s Position: The NKK’s dumping margin. NKK states Department should revise line 863 of Department agrees that prime and non- that, in accordance with the the model match program in the manner prime merchandise should not be Department’s instructions, it reported indicated in its case brief. Petitioners combined to determine whether sales all values in its U.S. and home market provided suggested computer fell above or below cost. As noted by databases in the currency in which programming language to implement NSC, it is the Department’s longstanding these values were incurred. NKK these corrections. NKK did not rebut policy to conduct separate cost tests for therefore reported all selling expenses petitioners’ allegation in their rebuttal prime and non-prime materials. in Japanese yen. NKK states that the brief. Therefore, for the final determination, Department, in its margin calculation Department’s Position: The the Department has excluded non-prime program, intended to convert reported Department agrees with petitioners and merchandise from its analysis. home market and U.S. price and has made the appropriate changes to the However, the Department agrees with expense amounts to U.S. dollars before arm’s length program, model match petitioners reasoning as to why some determining NKK’s sales-specific and program and margin calculation sales should be used in the calculation weighted-average dumping margin. program. of the overall margin and continues to However, NKK concludes, the Comment 34: Changes to NSC’s use the same analysis it did in the Department failed to convert U.S. direct Preliminary Margin Calculation preliminary determination. and indirect expenses from Japanese Program. yen to U.S. dollars when calculating the NSC argues that the Department erred Continuation of Suspension of actual dumping margin. by including the sales to which it had Liquidation Specifically, NKK asserts that the assigned a facts available margin in its In accordance with section Department, in calculating foreign unit calculations of the margins for NSC’s 735(c)(1)(B) of the Act, we are directing price in U.S. dollars (FUPDOL), did not ‘‘mainstream’’ sales. NSC contends that the Customs Service to continue to
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24370 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices suspend liquidation of all entries of Dated: April 28, 1999. DEPARTMENT OF COMMERCE subject merchandise from Japan that Richard W. Moreland, were entered, or withdrawn from Acting Assistant Secretary for Import International Trade Administration Administration. warehouse, for consumption on or after [C±201±810] November 21, 1998 (90 days prior to the [FR Doc. 99–11286 Filed 5–5–99; 8:45 am] date of publication of the Preliminary BILLING CODE 3510±DS±P Certain Cut-to-Length Carbon Steel Determination in the Federal Register) Plate From Mexico: Postponement of for KSC and those companies which fall Preliminary Results of Countervailing under the ‘‘all-others’’ rate. In addition, DEPARTMENT OF COMMERCE Duty Administrative Review we will continue to suspend liquidation International Trade Administration AGENCY: Import Administration, of all entries of subject merchandise International Trade Administration, from Japan that were entered, or Department of Commerce. withdrawn from warehouse, for [A±201±817] ACTION: Notice of extension of time consumption on or after February 19, Oil Country Tubular Goods from limits for preliminary results of 1999 (the date of publication of the Mexico; Antidumping Duty countervailing duty administrative Department’s preliminary Administrative Review; Extension of review. determination) for NSC and NKK. We Time Limit shall refund cash deposits and release SUMMARY: The Department of Commerce bonds for NSC and NKK for the period AGENCY: Import Administration, (Department) is extending by no longer between November 21, 1998 and International Trade Administration, than 120 days the time limit of the February 19, 1999 (i.e., the critical Department of Commerce. preliminary results of the administrative circumstances period). The Customs ACTION: Notice of extension of time limit review of the countervailing duty order Service shall continue to require a cash for preliminary determination in on certain cut-to-length carbon steel deposit or posting of a bond equal to the antidumping duty administrative review plate from Mexico, covering the period estimated amount by which the normal of oil country tubular goods from January 1, 1997, through December 31, value exceeds the U.S. price as shown Mexico. 1997, since it is not practicable to below. These suspension of liquidation complete this review within the time instructions will remain in effect until SUMMARY: The Department of Commerce limits mandated by the Tariff Act of further notice. The weighted-average (the Department) is extending the time 1930, as amended (19 U.S.C. 1675 limit for the preliminary results of the dumping margins are as follows: (a)(3)(A)). administrative review of the EFFECTIVE DATE: May 6, 1999. antidumping duty order on oil country Margins FOR FURTHER INFORMATION CONTACT: Company tubular goods from Mexico. This review (percent) Dana Mermelstein or Eric Greynolds, covers the period August 1, 1997 Office of CVD/AD Enforcement VI, Nippon Steel Corporation ...... 19.65 through July 31, 1998. Import Administration, International NKK Corporation ...... 17.86 EFFECTIVE DATE: May 6, 1999. Trade Administration, U.S. Department Kawasaki Steel Corporation ..... 67.14 of Commerce, 14th Street and All Others ...... 29.30 FOR FURTHER INFORMATION CONTACT: John Drury or Linda Ludwig, Office of AD/ Constitution Avenue, N.W., CVD Enforcement, Group III, Import Washington, D.C. 20230; telephone ITC Notification Administration, International Trade (202) 482–0984 and 482–6071, In accordance with section 735(d) of Administration, U.S. Department of respectively. the Act, we have notified the Commerce, 14th Street and Constitution SUPPLEMENTARY INFORMATION: Avenue, NW, Washington, DC 20230; International Trade Commission (‘‘ITC’’) Applicable Statute of our determination. Because our final telephone (202) 482–0195 or 482–3833, determination is affirmative, the ITC respectively. Unless otherwise indicated, all will, within 45 days, determine whether SUPPLEMENTARY INFORMATION: Because it citations to the statute are references to the provisions of the Tariff Act of 1930, these imports are materially injuring, or is not practicable to complete this as amended by the Uruguay Round threatening material injury to, the U.S. review within the time limits mandated Agreements Act (URAA) effective industry. If the ITC determines that by the Tariff Act of 1930, as amended, the Department is extending the time January 1, 1995 (the Act). In addition, material injury, or threat of material unless otherwise indicated, all citations injury does not exist, the proceeding limit for completion of the preliminary results until August 31, 1999, in to the Department’s regulations are to will be terminated and all securities the regulations as codified at 19 CFR posted will be refunded or canceled. If accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended by Part 351 (April 1998). the ITC determines that such injury the Uruguay Round Agreements Act of does exist, the Department will issue an Background 1994 (19 U.S.C. § 1675 (a)(3)(A)). See antidumping duty order directing memorandum to Robert S. LaRussa from On September 29, 1998, the Customs officials to assess antidumping Joseph A. Spetrini regarding the Department initiated an administrative duties on all imports of the subject extension of the case deadline, xxxxxx, review of the countervailing duty order merchandise entered, or withdrawn 1999. on certain cut-to-length carbon steel from warehouse, for consumption on or plate from Mexico, covering the period after the effective date of the suspension Dated: April 26, 1999. January 1, 1997, through December 31, of liquidation. Joseph A. Spetrini, 1997 (63 FR 51893). In our notice of Deputy Assistant Secretary, Enforcement initiation, we stated our intention to This determination is issued and Group III. issue the final results of this review no published in accordance with sections [FR Doc. 99–11424 Filed 5–5–99; 8:45 am] later than August 31, 1999. The 735(d) and 777(i)(1) of the Act. BILLING CODE 3510±DS±P preliminary results of review are
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24371 currently due no later than May 3, 1999. processing procedures of the Paperwork Seattle, WA 98115 has been issued an Due to the complexity of the issues and Reduction Act. amendment to scientific research Permit the fact that certain subsidy allegations Agency: National Oceanic and No. 782–1355. are being examined for the first time, the Atmospheric Administration. Department has determined that it is not Title: Beluga Whale Harvest Report. ADDRESSES: The amendment and related practicable to complete this review Agency Form Number(s): None. documents are available for review within the time limits mandated by the OMB Approval Number: None. upon written request or by appointment Act (19 U.S.C. 1675 (a)(3)(A)). Type of Request: New Collection— in the following office(s): Emergency Collection Request. Permits and Documentation Division, Postponement of Preliminary Results of Burden: 5 hours. Office of Protected Resources, NMFS, Review Number of Respondents: 10. 1315 East-West Highway, Room 13705, Section 751(a)(3)(A) of the Act Avg. Hours Per Response: 30 minutes. Needs and Uses: The National Marine Silver Spring, MD 20910 (301/713– requires the Department to make a 2289); and preliminary determination within 245 Fisheries Service will require Alaskan days after the last day of the anniversary Natives who harvest beluga whales in Regional Administrator, Alaska month of an order/finding for which a Cook Inlet to report certain information Region, P.O. Box 21668, Juneau, AK review is requested and a final and to submit the labeled jawbones on 99802–1668 (907/586–7221). the whales taken. The information will determination within 120 days after the FOR FURTHER INFORMATION CONTACT: be used to evaluate the health and Sara date on which the preliminary Shapiro or Ruth Johnson, 301/713–2289. determination is published. However, if stability of this stock and to construct a it is not practicable to complete the management regime that will provide SUPPLEMENTARY INFORMATION: On March review within the time period, section for a sustainable subsistence harvest by 22, 1999, notice was published in the 751(a)(3)(A) allows the Department to Alaskan Natives. Federal Register (64 FR 13780) that an extend this time period to a maximum Affected Public: Individuals. amendment of Permit No. 782–1355, of 365 days and 180 days, respectively. Frequency: On occasion. issued July 15, 1997 (62 FR 39826), had Respondent’s Obligation: Mandatory. We determine that it is not practicable been requested by the above-named OMB Desk Officer: David Rostker, to complete the preliminary results of organization. The requested amendment (202) 395–3897. this review within the original time Copies of the above information has been granted under the authority of frame. See Memorandum from Bernard collection proposal can be obtained by the Marine Mammal Protection Act of Carreau to Robert S. LaRussa, calling or writing Linda Engelmeier, 1972, as amended (16 U.S.C. 1361 et ‘‘Extension of Preliminary Results: DOC Forms Clearance Officer, (202) seq.),and the provisions of § 216.39 of Certain Cut-to-Length Carbon Steel Plate 482–3272, Department of Commerce, the Regulations Governing the Taking from Mexico,’’ dated April 13, 1999. Room 5033, 14th and Constitution and Importing of Marine Mammals (50 The deadline for issuing the Avenue, NW, Washington, DC 20230 (or CFR part 216). preliminary results of this review is now via Internet at [email protected]). Permit No. 782–1355 authorizes the no later than August 31, 1999, which is Written comments and the full amount of time the Department National Marine Mammal Laboratory to recommendations for the proposed take Pacific Harbor seals (Phoca can extend the preliminary results information collection should be sent by under section 751(a)(3)(A) of the Act. vitulina) in the following manner: Monday, May 10, 1999, to David harass during census flights; capture, The deadline for issuing the final results Rostker, OMB Desk Officer, Room of this review will be no later than 120 restrain, measure (weight length, girth), 10202, New Executive Office Building, sample (flipper punch, vibrissa, blood, days from the publication of the 725 17th Street, NW, Washington, DC blubber/muscle biopsy, ultra sound, preliminary results. 20503. Dated: April 13, 1999. enema), radio tag, flipper tag, and Dated: April 29, 1999. Bernard Carreau, release 500 animals; and incidentally Linda Engelmeier, harass up to 2500 during the conduct of Deputy Assistant Secretary for Import Departmental Forms Clearance Officer, Office Administration, Group II. these activities, and during collection of of the Chief Information Officer. [FR Doc. 99–11284 Filed 5–5–99; 8:45 am] scat samples from haulouts. [FR Doc. 99–11397 Filed 5–5–99; 8:45 am] BILLING CODE 3510±DS±P The Holder is now authorized to BILLING CODE 3510±22±F capture, restrain, mark measure, flipper tag, instrument, and sedate (when DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE necessary), ringed seals (Phoca hispida); and harass ringed seals, bearded seals National Oceanic and Atmospheric National Oceanic and Atmospheric (Erignathus barbatus), ribbon seals Administration Administration (Phoca fasciata), and spotted seals [I.D. 043099B] [I.D. 042199A] (Phoca largha) during aerial stock assessments. Submission for OMB Review; Marine Mammals; File No. 782±1355±02 Dated: April 29, 1999. Comment Request AGENCY: National Marine Fisheries Ann D. Terbush, The Department of Commerce (DOC) Service (NMFS), National Oceanic and Chief, Permits and Documentation Division, has submitted to the Office of Atmospheric Administration (NOAA), Office of Protected Resources, National Management and Budget (OMB) for Commerce. Marine Fisheries Service. clearance the following proposal for ACTION: Issuance of permit amendment. [FR Doc. 99–11396 Filed 5–5–99; 8:45 am] collection of information under the BILLING CODE 3510±22±F provisions of the Paperwork Reduction SUMMARY: Notice is hereby given that Act (44 U.S.C. Chapter 35). This request the National Marine Mammal is being submitted under the emergency Laboratory, 7600 Sand Point Way, NE.,
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COMMODITY FUTURES TRADING submitted to the Commodity Futures the Secretariat, Three Lafayette Centre, COMMISSION Trading Commission (‘‘Commission’’) a 1155 21st Street, NW, Washington, DC petition for exemption from the 20581, and may be obtained by mail at Agricultural Advisory Committee; statutory prohibition against dual that address or by telephone at (202) Eighth Renewal trading in two contract markets. The 418–5100. Petition materials subject to CME’s The Commodity Futures Trading petition requests an exemption for two request for confidential treatment may Commission has determined to renew newly affected contract markets that be available upon request pursuant to again for a period of two years its trade electronically on CME’s Globex2 the Freedom of Information Act advisory committee designated as the system. Copies of the entire file, ‘‘Commodity Futures Trading including any future submissions, will (‘‘FOIA’’) (5 U.S.C. § 552) and the Commission Agricultural Advisory be available to the public upon request, Commission’s regulations thereunder Committee.’’ The Commission certifies except to the extent the Exchange has (17 CFR Part 145), except to the extent that the renewal of the advisory requested confidential treatment. they are entitled to confidential committee is in the public interest in ADDRESSES: Copies of the file are treatment as set forth in 17 CFR 145.5 connection with duties imposed on the available from the Office of the and 145.9. Requests for copies of such Commission by the Commodity Secretariat, Commodity Futures Trading materials should be made to FOIA, Exchange Act, 7 U.S.C. 1, et seq., as Commission, Three Lafayette Centre, Privacy and Sunshine Act Compliance amended. 1155 21st Street, NW, Washington, DC Staff of the Office of the Secretariat at The objectives and scope of activities 20581. Reference should be made to the the above address in accordance with 17 of the Agricultural Advisory Committee CME Globex2 dual trading exemption CFR 145.7 and 145.8. are to conduct public meetings and petition file. Application of the prohibition in the submit reports and recommendations on FOR FURTHER INFORMATION CONTACT: contract markets covered by the petition issues affecting agricultural producers, Adam E. Wernow, Attorney-Advisor, has been suspended in accordance with processors, lenders and others Division of Trading and Markets, Commission Regulation 155.5(d)(5) and interested in or affected by agricultural Commodity Futures Trading will remain suspended until the petition commodities markets, and to facilitate Commission, Three Lafayette Centre, is acted upon. communications between the 1155 21st Street, NW, Washington, DC Issued in Washington, DC, on April 29, Commission and the diverse agricultural 20581; telephone: (202) 418–5042; 1999. and agriculture-related organizations electronic mail: [email protected]. Alan L. Seifert, represented on the Committee. SUPPLEMENTARY INFORMATION: Pursuant Deputy Director, Division of Trading and Commissioner David D. Spears serves to Sections 4j(a)(1) and (3) of the Markets. as Chairman and Designated Federal Commodity Exchange Act (‘‘Act’’) and [FR Doc. 99–11367 Filed 5–5–99; 8:45 am] Official of the Agricultural Advisory Commission Regulation 155.5 BILLING CODE 6351±01±M Committee. The Committee’s thereunder, a board of trade may submit membership represents a cross-section a petition to the Commission to exempt of interested and affected groups any of its affected contract markets COMMODITY FUTURES TRADING including representatives of producers, (markets with an average daily trading COMMISSION processors, lenders and other interested volume equal to or in excess of 8,000 Application of the KCBT for agricultural groups. contracts for four consecutive quarters) Interested persons may obtain Designation as a Contract Market in from the prohibition against dual information or make comments by Western Natural Gas Index Futures trading. Regulation 155.5(d)(6) writing to the Commodity Futures Contracts authorizes the Director of the Division Trading Commission, Three Lafayette of Trading and Markets to publish AGENCY: Commodity Futures Trading Centre, 1155 21st Street, NW, notice of each exemption petition Commission. Washington, DC 20581. deemed complete under Regulation ACTION: Notice of availability of the Issued in Washington, DC on April 29, 155.5(d) and to make the petition terms and conditions of proposed 1999, by the Commission. available to the public as required by commodity futures contract. Jean A. Webb, Section 4j(a)(5) of the Act. Secretary of the Commission. CME submitted a petition for a dual SUMMARY: The Kansas City Board of [FR Doc. 99–11323 Filed 5–5–99; 8:45 am] trading exemption dated November 17, Trade (KCBT or Exchange) has applied BILLING CODE 6351±01±M 1998, and received by the Commission for designation as a contract market in on November 20, 1998, for all of its western natural gas index futures contracts that electronically trade on the contracts. The proposal was submitted COMMODITY FUTURES TRADING Exchange’s Globex2 system. Presently, under the Commission’s 45-day Fast COMMISSION only CME’s E-Mini S&P 500 and Track procedures. The Acting Director Eurodollar futures contracts qualify as of the Division of Economic Analysis Chicago Mercantile Exchange Petition affected contract markets for purposes of (Division) of the Commission, acting for Exemption From the Statutory Dual the dual trading prohibition. pursuant to the authority delegated by Trading Prohibition in Affected Consequently, the Commission only Commission Regulation 140.96, has Contract Markets will consider these markets for an determined that publication of the AGENCY: Commodity Futures Trading exemption. proposal for comment is in the public Commission. Copies of the file containing this interest, will assist the Commission in considering the views of interested ACTION: Notice of petition for exemption petition and supporting materials, as persons, and is consistent with the from the prohibition on duel trading in well as any future submissions, except purpose of the Commodity Exchange an affected contract market. to the extent the Exchange has requested confidential treatment in accordance Act. SUMMARY: The Chicago Mercantile with 17 CFR 145.9, are available for DATES: Comments must be received on Exchange (‘‘CME’’ or ‘‘Exchange’’) has inspection at the Commission’s Office of or before May 21, 1999.
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ADDRESSES: Interested persons should Any person interested in submitting Department of the Army Reports submit their views and comments to written data, views, or arguments on the clearance officer at (703) 614–0454. Jean A. Webb, Secretary, Commodity proposal, or with respect to other Title, Associated Form, and OMB Futures Trading Commission, Three materials submitted by the KCBT, Number: Application and Contract for Lafayette Centre, 1155 21st Street, NW should send such comments to Jean A. Establishment of a Junior Reserve Washington, DC 20581. In addition, Webb, Secretary, Commodity Futures Officers’ Training Corps Unit, DA Form comments may be sent by facsimile Trading Commission, Three Lafayette 3126, OMB Number 0702–0021. transmission to facsimile number (202) Centre, 21st Street NW, Washington, DC Needs and Uses: The DA Form 3126 418–5521, or by electronic mail to 20581 by the specified date. will be initiated by the school desiring to host a unit and countersigned by a [email protected]. Reference should be Issued in Washington, DC, on April 28, made to the KCBT western natural gas 1999. representative of the Secretary of the Army. The contract (DA Form 3126) is index futures contract. John R. Mielke, FOR FURTHER INFORMATION CONTACT: necessary to establish a mutual Acting Director. agreement between the secondary Please contact Joseph Storer of the [FR Doc. 99–11322 Filed 5–5–99; 8:45 am] Division of Economic Analysis, institution and the U.S. Government BILLING CODE 6351±01±M Commodity Futures Trading while keeping within the parameters of Commission, Three Lafayette Centre, the law. The data provided on the 1155 21st Street NW, Washington, DC application is used to determine which DEPARTMENT OF DEFENSE 20581, telephone (202) 418–5282. school will be selected. Affected Public: State, Local or Tribal Facsimile number: (202) 418–5527. Department of the Army Electronic mail: [email protected] Government. Annual Burden Hours: 70. SUPPLEMENTARY INFORMATION: The Proposed Collection; Comment Number of Respondents: 70. proposed designation application was Request Responses Per Respondent: 1. submitted pursuant to the Commission’s Average Burden Per Response: 1 hour. AGENCY: Deputy Chief of Staff for Fast Track procedures for streamlining Frequency: On occasion. Personnel (DAPE–ZXI–RM), DoD. the review of futures contract rule SUPPLEMENTARY INFORMATION: ACTION: Notice. amendments and new contract Educational institutions desiring to host approvals (62 FR 10434). Under those In compliance with section a Junior ROTC unit may apply by using procedures, the proposal, absent any 3506(c)(2)(A) of the Paperwork a DA Form 3126. The DA Form 3126 contrary action by the Commission, may Reduction Act of 1995, the Department documents the agreement and becomes be deemed approved at the close of of the Army announces a proposed a contract signed by both the institution business on June 7, 1999, 45 days after public information collection and seeks and the U.S. Government. The DA Form receipt of the proposal. In view of the public comment on the provisions 3126 provides information on the limited review period under the Fast thereof. Comments are invited on: (a) school’s facilities and states specific Track procedures, the Commission has Whether the proposed collection of conditions if a JROTC unit is placed at determined to publish for public information is necessary for the proper the institution. The data provided on comment notice of the availability of the performance of the functions of the the application is used to determine terms and conditions for 15 days, rather agency, including whether the which school will be selected. than 30 days as provided for proposals information shall have practical utility; Gregory D. Showalter, submitted under the regular review (b) the accuracy of the agency’s estimate Army Federal Register Liaison Officer. procedures. of the burden of the proposed Copies of the proposed contract terms [FR Doc. 99–11411 Filed 5–5–99; 8:45 am] information collection; (c) ways to BILLING CODE 3710±08±P will be available for inspection at the enhance the quality, utility, and clarity Office of the Secretariat, Commodity of the information to be collected; and Futures Trading Commission, Three (d) ways to minimize the burden of the DEPARMENT OF DEFENSE Lafayette Centre, 1155 21st Street NW, information collection on respondents, Washington, DC 20581. Copies can be including through the use of automated Corps of Engineers obtained through the Office of the collection techniques or other forms of Department of the Army Secretariat by mail at the above address, information technology. by phone at (202) 418–5100, or via the internet on the CFTC website at DATES: Consideration will be given to all Intent To Prepare a Draft www.cftc.gov under ‘‘What’s New & comments received by July 6, 1999. Environmental Impact Statement Pending’’. ADDRESSES: Written comments and (DEIS) for the Dade County Beach Other materials submitted by the recommendations on the proposed Erosion Control and Hurricane KCBT in support of the proposal may be information collection should be sent to Protection Project, for a Test Beach Fill available upon request pursuant to the the United States Total Army Personnel Using a Domestic Upland Sand Source Freedom of Information Act (5 U.S.C. Command, ATTN: TAPC–OPD–C Based on a Generic Sand Specification 552) and the Commission’s regulations (Annette Bush), 200 Stovall Street, AGENCY: Army Corps of Engineers, thereunder (17 CFR Part 145 (1997)), Alexandria, Virginia 22332–0413. Department of Defense. Consideration will be given to all except to the extent they are entitled to ACTION: Notice of intent. confidential treatment as set forth in 17 comments received within 60 days of CFR 145.5 and 145.9. Requests for the date of publication of this notice. SUMMARY: The Jacksonville District, U.S. copies of such materials should be made FOR FURTHER INFORMATION CONTACT: To Army Corps of Engineers intends to to the FOI, Privacy and Sunshine Act request more information on this prepare a Draft Environmental Impact Compliance Staff of the Office of proposed information collection or to Statement for the Dade County Beach Secretariat at the Commission’s obtain a copy of the proposal and Erosion Control and Hurricane headquarters in accordance with 17 CFR associated collection instruments, Protection Project, for a Test Beach Fill 145.7 and 145.8. please write to the above address, or call using a domestic upland sand source.
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The source of sand will be determined 600,000 cubic yards. The currently would involve evaluation for from prospective contractor proposals proposed location for the test fill is compliance with guidelines pursuant to based on a generic sand specification between 83rd and 63rd Streets in Miami section 404(b) of the Clean Water Act; developed by the Jacksonville District. Beach (DEP monuments R–36 to R–47). application (to the State of Florida) for The study is a cooperative effort The exact source of sand for the test Water Quality Certification pursuant to between the U.S. Army Corps of beach would be determined during the section 401 of the Clean Water Act; Engineers and the Dade County procurement process. Sand sources certification of state lands, easements, Department of Environmental Resources proposed by contractors would have to and rights of way; and determination of Management (DERM), the non-Federal meet a set of generic sand specifications Coastal Zone Management Act sponsor for the project. and pass a screening process for sand consistency. FOR FURTHER INFORMATION CONTACT: characteristics and potential Agency Role: As the non-Federal Kenneth Dugger, 904–232–1686, environmental impacts. sponsor and leading local expert; DERM Environmental Branch, Planning In order to evaluate the performance will provide extensive information and Division, PO Box 4970, Jacksonville, of the test fill, a monitoring program assistance on the resources to be Florida 32232–0019. will be established. The monitoring impacted, mitigation measures, and program would consist of physical SUPPLEMENTARY INFORMATION: The Beach alternatives. surveys, sediment sampling and DEIS Preparation: It is estimated that Erosion Control and Hurricane analysis, and aerial photography. In Protection (BEC & HP) Project for Dade the DEIS will be available to the public addition, environmental monitoring of on or about July 16, 1999. We plan to County, Florida was authorized by the the test fill would be performed. The Flood Control Act of 1968. The post the DEIS on the environmental environmental studies would focus documents page of the Jacksonville authorized project provides for the mainly on the impacts of the material on nourishment of 9.3 miles of shoreline District’s web site (http//www.saj. sea turtle nesting and benthic infaunal usace.army.mil/pd/env-doc.htm). between Government Cut and Bakers communities. Haulover Inlet and for the nourishment Alternatives: At this time, the only Dated: April 22, 1999. of 1.2 miles of shoreline at Haulover known alternative to performing the test James C. Duck, Beach Park. The Supplemental beach fill is not performing the test or Chief, Planning Division. Appropriations Act of 1985 and the the no-action alternative. [FR Doc. 99–11409 Filed 5–5–99; 8:45 am] Water Resources Development Act 1986 Issues: The EIS will consider impacts BILLING CODE 3710±AJ±M (Pub. L. 99–662) provided authority for on coral reefs and other hardbottom extending the northern limit of the communities, endangered and authorized project to include the threatened species, shore protection, construction of protective beach along water quality, aesthetics and recreation, DEPARTMENT OF EDUCATION the 2.5 mile reach of shoreline north of fish and wildlife resources, cultural Federal Interagency Coordinating Haulover Beach Park (Sunny Isles) and resources, energy conservation, socio- Council Meeting (FICC) for periodic nourishment of the of the economic resources, and other impacts overall project for 50 years. identified through scoping, public AGENCY: Federal Interagency Offshore borrow sources of beach involvement, and interagency Coordinating Council, Department of quality sediment along the Dade County coordination. Education. shoreline have been almost completely Scoping: A copy of this notice will be ACTION: Notice of a public meeting. depleted, and alternative sources of sent to interested parties to initiate material will be required in the near scoping. All parties are invited to SUMMARY: This notice describes the future to provide continued participate in the scoping process by schedule and agenda of a forthcoming renourishment of the project. Although identifying any additional concerns on meeting of the Federal Interagency sediment from offshore borrow sites has issues, studies needed, alternatives, Coordinating Council, and invites traditionally been used for project procedures, and other matters related to people to participate. Notice of this renourishment, the use of sand from the scoping process. At this time, there meeting is required under section 644(c) other sources may provide an effective are no plans for a public scoping of the Reauthorization Individuals with alternative for future renourishment meeting. Disabilities Education Act (IDEA) and is requirements. Public Involvement: We invite the intended to notify the general public of The purpose of the test fill, in participation of affected Federal, state their opportunity to attend this meeting. addition to providing nourishment to an and local agencies, affected Indian The meeting will be accessible to eroded portion of the Federal project tribes, and other interested private individuals with disabilities. along northern Miami Beach, is to organizations and parties. DATE AND TIME: Thursday, June 10, 1999, evaluate the economic, engineering and Coordination: The proposed action is from 1:00 p.m. to 4:30 p.m. environmental performance of an being coordinated with the U.S. Fish upland sand source on the beach and Wildlife Service (FWS) and the ADDRESS: Holiday Inn, 550 C Street, erosion control project. National Marine Fisheries Service under S.W., Washington, D.C. 20202, near the The proposed test fill site would be Section 7 of the Endangered Species Federal Center Southwest and L’Enfant located along northern Miami Beach, Act, with the FWS under the Fish and metro stops. and would extend along approximately Wildlife Coordination Act, and with the FOR FURTHER INFORMATION CONTACT: 1.5 miles of shoreline which has been State Historic Preservation Officer. In Libby Doggett or Kim Lawrence, U.S. an erosional area since the project was addition, we have coordinated with the Department of Education, 330 C Street, constructed. The proposed site is Florida Department of Environmental SW, Room 3080, Switzer Building, located far from adjacent inlets, and no Protection, the dredging industry, Washington, DC 20202–2644. significant structures exist in this academic experts, and other interests on Telephone: (202) 205–5507. Individuals vicinity to disrupt the ‘‘natural’’ coastal this matter. who use a telecommunications device processes. The total volume of the test Other Environmental Review and for the deaf (TDD) may call (202) 205– fill is expected to be approximately Consultation: The proposed action 9754.
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SUPPLEMENTARY INFORMATION: The from the hours of 9 a.m. to 5 p.m., exclusion in the FE Docket EA–121 Federal Interagency Coordinating weekdays, except Federal Holidays. proceeding. Council (FICC) is established under Judith E. Heumann, Procedural Matters section 644(c) of the Reauthorization Assistant Secretary for Special Education and Individuals with Disabilities Education Rehabilitative Service. Any person desiring to become a Act (20 U.S.C. 1484a). The Council is [FR Doc. 99–11417 Filed 5–05–99; 8:45 am] party to this proceeding or to be heard by filing comments or protests to this established to: (1) Minimize duplication BILLING CODE 4000±01±M across Federal, State and local agencies application should file a petition to intervene, comment or protest at the of programs and activities relating to address provided above in accordance early intervention services for infants DEPARTMENT OF ENERGY with §§ 385.211 or 385.214 of the and toddlers with disabilities and their [Docket No. EA±121±A] FERC’s Rules of Practice and Procedures families and preschool services for (18 CFR 385.211, 385.214). Fifteen children with disabilities; (2) ensure Application To Export Electric Energy; copies of each petition and protest effective coordination of Federal early Electric Clearinghouse, Inc. should be filed with the DOE on or intervention and preschool programs, before the date listed above. including Federal technical assistance AGENCY: Office of Fossil Energy, DOE. Comments on ECI’s request to export and support activities; and (3) identify ACTION: Notice of application. to Mexico should be clearly marked gaps in Federal agency programs and with Docket EA–121–A. Additional services and barriers to Federal SUMMARY: Electric Clearinghouse, Inc. copies are to be filed directly with interagency cooperation. To meet these (ECI) has applied for renewal of its Daniel A. King, Esq., Electric purposes, the FICC seeks to: (1) Identify authority to transmit electric energy Clearinghouse, Inc., 805 15th Street, areas of conflict, overlap, and omissions from the United States to Mexico N.W., Suite 510–A, Washington, D.C. pursuant to section 202(e) of the Federal in interagency policies related to the 20005–2207 and Kathryn L. Patton, Esq., Power Act. provision of services to infants, Electric Clearinghouse, Inc., 1000 toddlers, and preschoolers with DATES: Comments, protests or requests Louisiana, Suite 5800, Houston, TX disabilities; (2) develop and implement to intervene must be submitted on or 77002–5050. joint policy interpretations on issues before June 7, 1999. Copies of this application will be related to infants, toddlers, and ADDRESSES: Comments, protests or made available, upon request, for public preschoolers that cut across Federal requests to intervene should be inspection and copying at the address agencies, including modifications of addressed as follows: Office of Coal & provided above or by accessing the regulations to eliminate barriers to Power Im/Ex (FE–27), Office of Fossil Fossil Energy Home Page at http:// www.fe.doe.gov. Upon reaching the interagency programs and activities; and Energy, U.S. Department of Energy, 1000 Independence Avenue, SW, Fossil Energy Home page, select (3) coordinate the provision of technical Washington, DC 20585–0350 (FAX 202– ‘‘Regulatory Programs,’’ then assistance and dissemination of best 287–5736). ‘‘Electricity Regulation,’’ and then practice information. The FICC is FOR FURTHER INFORMATION CONTACT: ‘‘Pending Proceedings’’ from the options chaired by the Assistant Secretary for menus. Special Education and Rehabilitative Xavier Puslowski (Program Office) 202- 586–4708 or Michael Skinker (Program Services. Issued in Washington, D.C., on April 30, Attorney) 202–586–6667. 1999. The FICC will attend to ongoing work SUPPLEMENTARY INFORMATION: On Anthony J. Como, including reports from a technical February 24, 1997, the Office of Fossil Manager, Electric Power Regulation, Office assistance survey and a Department of energy (FE) of the Department of Energy of Coal & Power Im/Ex, Office of Coal & Defense Task Force. A list of Minimum (DOE) authorized ECI to transmit Power Systems, Office of Fossil Energy. Health Benefits for Children with electric energy from the United States to [FR Doc. 99–11404 Filed 5–5–99; 8:45 am] Disabilities, which has been distributed Mexico as a power marketer using the BILLING CODE 6450±01±P to agencies and other organizations for international electric transmission comment, will be considered. A facilities of San Diego Gas and Electric presentation by Marie Bristol on autism Company, El Paso Electric Company, DEPARTMENT OF ENERGY will also be held. New Family Central Power and Light Company and Office of Arms Control and Representatives will be introduced. Comision Federal de Electricidad, the Nonproliferation Policy; Proposed national electric utility of Mexico. That To request a packet of materials or Subsequent Arrangement accommodations such as interpreters for two-year authorization expired on persons who are hearing impaired, February 24, 1999. On April 8, 1999, AGENCY: Department of Energy. materials in Braille, large print, or ECI filed an application with FE for ACTION: Subsequent arrangement. renewal of this export authority and cassette please call Kim Lawrence at requested that the Order be issued for a SUMMARY: The Department is providing (202) 205–5507 (voice) or (202) 205– 5-year term. notice of a proposed ‘‘subsequent 9754 (TDD) my May 21, 1999. DOE notes that the circumstances arrangement’’ under the Agreement for Summary minutes of the FICC described in this application are Cooperation Between the Government of meetings will be maintained and virtually identical to those for which the United States of America and the available for public inspection at the export authority had previously been Government of Canada Concerning the U.S. Department of Education, 330 C granted in FE Order EA–121. Civil Uses of Atomic Energy and the Street, SW, Room 3080, Switzer Consequently, DOE believes that it has Agreement for Cooperation Between the Building, Washington, DC 20202–2644, adequately satisfied its responsibilities Government of the United States of under the National Environmental America and the Government of the Policy Act of 1969 through the Republic of Korea Concerning Civil documentation of a categorical Uses of Atomic Energy. This notice is
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24376 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices being issued under the authority of DATES: Public meeting dates: May 27, owned utilities under section 5(b)(1) of Section 131 of the Atomic Energy Act of 1999, and June 2, 1999. Close of the Northwest Power Act. 1954, as amended (42 U.S.C. 2160). comment date: June 11, 1999. This Federal Register Notice presents The subsequent arrangement RTD/ ADDRESSES: If you are interested in BPA’s draft proposal for implementing KO(CA)–8 concerns the retransfer of one commenting on the policy proposal the Power Subscription Strategy under low enriched uranium fuel bundle (one regarding the amount of Federal power its post-2001 power sales contracts. The type contains 36-Element, another type a customer may purchase under BPA proposal recommends contract contains 18-Element) consisting of subscription power sales contracts, you mechanisms for determining the amount 100,000 grams of uranium, of which have several options. of electric power BPA will offer to 19,750 grams of the isotope U–235 is 1. You can send written comments to public and investor-owned utilities. It enriched to less than 20 percent, from Bonneville Power Administration, P.O. also proposes contract mechanisms for Canada to Republic of Korea for use as Box 12999, Portland, OR 97212, or you determining the amount of electric additional fueling for the HANARO can fax comments to (503) 230–4019. If power BPA will offer investor-owned research reactor. This material is U.S. you wish to send your comments utilities, based on a firm power origin and thus requires U.S. approval electronically, email comments to: requirement load, in settlement of their for retransfer to a third country. [email protected]. Comments must be rights to service under the residential In accordance with Section 131 of the received by close of business Friday, exchange program created under section Atomic Energy Act of 1954, as amended, June 11, 1999. 5(c) of the Northwest Power Act. Based we have determined that this 2. You also can attend one or both of on section 3(d) of the Northwest subsequent arrangement will not be the two public comment meetings. One Preference Act and 9(c) of the Northwest inimical to the common defense and meeting will be held on Thursday, May Power Act, the proposal recommends security. 27, 1999, in Spokane, Washington, at principles for determining the effect a This subsequent arrangement will Cavanaugh’s Inn at the Park, 303 W. customer’s sale of its non-Federal firm take effect no sooner than fifteen days North River Drive. Another meeting will resources may have on the amount of after the date of publication of this be held in Portland, Oregon, on Federal power that BPA will offer to the notice. Wednesday, June 2, 1999, at the customer under its BPA power sales Dated: April 30, 1999. Sheraton Portland Airport Hotel, at 8235 contract. The Northwest Power Act provisions For the Department of Energy. NE Airport Way. Both meetings will are: Edward T. Fei, begin at 10:00 a.m. Comments also will Deputy Director, International Policy and be collected on BPA’s Standards for 5(b)(1) Whenever requested, the Analysis Division, Office of Arms Control and Service proposal. If any additional Administrator shall offer to sell to each Nonproliferation. meetings are scheduled, the information requesting public body and cooperative entitled to preference and priority under the [FR Doc. 99–11405 Filed 5–5–99; 8:45 am] will be posted on the web site listed Bonneville Project Act of 1937 [16 U.S.C. 832 BILLING CODE 6450±01±P below. et seq.] and to each requesting investor- http://www.bpa.gov/Power/subscription owned utility electric power to meet the firm power load of such public body, cooperative FOR FURTHER INFORMATION CONTACT: Mr. DEPARTMENT OF ENERGY or investor-owned utility in the region to the Michael Hansen, Public Involvement extent that such firm power load exceeds— Bonneville Power Administration and Information Specialist, Bonneville (A). the capability of such entity’s firm Power Administration, P.O. Box 3621, peaking and energy resources used in the Opportunity for Public Comment, Portland, Oregon 97208–3621, year prior to December 5, 1980, to serve its Regarding Bonneville Power telephone (503) 230–4328 or 1–800– firm load in the region, and Administration's Subscription, Power 622–4519. Information can also be (B). Such other resources as such entity obtained from your BPA Account determines, pursuant to contracts under this Sales to Customers and Customers' chapter, will be used to serve its firm load Sales of Firm Resources Executive or from: in the region. Ms. Ruth Bennett, Acting Vice 5(b)(1) In determining the resources which AGENCY: Bonneville Power President, Power Marketing, 905 NE are used to serve a firm load, for purposes of Administration (BPA), DOE. 11th, P.O. Box 3621, Portland, OR subparagraphs (A) and (B), any resources ACTION: Notice of draft policy proposal. 97208, telephone (503) 230–7640 used to serve a firm load under such Mr. Rick Itami, Manager, Eastern Power subparagraphs shall be treated as continuing SUMMARY: BPA is publishing a draft to be so used, unless such use is policy proposal for addressing certain Business Area, 707 W. Main Street, discontinued with the consent of the issues under sections 5(b) and 9(c) of Suite 500, Spokane, WA 99201, Administrator, or unless such use is the Northwest Electric Power Planning telephone (509) 358–7409 discontinued because of obsolescence, and Conservation Act, (the Northwest Mr. John Elizalde, Acting Manager, retirement, loss of resource, or loss of Power Act), Pub. L. 96–501, and section Western Power Business Area, 700 NE contract rights. 16 U.S.C. 839c(b)(1) 9(c) Any contract of the Administrator for 3(d) of the Act of August 31, 1964 (the Multnomah, Suite 400, Portland, OR 97232, telephone (503) 230–7597 the sale or exchange of electric power for use Northwest Preference Act), Pub. L. 88– outside the Pacific Northwest shall be subject 552, regarding the amount of Federal SUPPLEMENTARY INFORMATION: On to limitations and conditions corresponding power a customer may purchase under December 21, 1998, BPA published its to those provided in sections 2 and 3 of the BPA subscription power sales contracts. Power Subscription Strategy and Record Act of August 23, 1964 (16 U.S.C 837a and BPA is initiating development of a of Decision for selling Federal power 837b) for any contract for the sale, delivery, policy that will provide policy guidance under new contracts with its public or exchange of hydroelectric energy or on implementation of the Power utility, investor-owned utility and direct peaking capacity generated within the Pacific Subscription Strategy under applicable service industrial customers. The Power Northwest for use outside the Pacific Northwest. In applying such sections for the statutes and describe how certain Subscription Strategy stated overall purposes of this subsection, the term factual determinations needed for BPA policies for determining the amount of ‘‘surplus energy’’ shall mean electric energy subscription power sales contracts will power that would be offered to Pacific for which there is no market in the Pacific be made. Northwest public utilities and investor- Northwest at any rate established for the
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24377 disposition of such energy, and the term based on section 9(c) of the Northwest managed by the region through the ‘‘surplus peaking capacity’’ shall mean Power Act as well as section 3(d) of the Pacific Northwest Coordination electric peaking capacity for which there is Northwest Preference Act. Agreement as if all of the region’s no demand in the Pacific Northwest at the The method of calculating net Federal and non-Federal generating rate established for the disposition of such requirements is an important issue capacity. The authority granted, and duties resources were operated by a single imposed upon, the Secretary by sections 5 because it determines the amount of utility. The region’s utilities knew who and 7 of such Act (16 U.S.C. 837d and 837f) Federal power an eligible customer can owned what resources and what loads [16 U.S.C. 837d and 837f] shall also apply to receive for its firm consumer loads in they served. Increasingly, BPA’s utility the Administrator in connection with the region. Section 5(b)(1) of the customers are relying less on generation resources acquired by the Administrator Northwest Power Act says that a BPA and more on market power purchases to pursuant to this chapter. The Administrator customer is entitled to purchase an serve their firm consumer loads. Others shall, in making any determination, under amount of cost-based Federal power have developed new generation any contract executed pursuant to section needed to meet its net requirement. A resources which they have chosen not to 839c of this title, of the electric power customer’s net requirement is equal to apply to their consumer load and do not requirements of any Pacific Northwest the difference between its regional customer, which is a non-Federal entity specify in their Firm Resource Exhibit having its own generation, exclude, in consumer firm loads and the amount of in their current BPA power sales addition to hydroelectric generated energy its non-Federal generation and firm contract. Most investor-owned utilities excluded from such requirements pursuant to power purchase contracts that the have not taken their consumer load section 3(d) of such Act (16 U.S.C. 837b(d)), customer uses to serve those loads. service from BPA and have not made any amount of energy included in the BPA first implemented the net power purchases under the 1981 resources of such customer for service to firm requirements mandate of the Northwest contracts. In 1996, BPA offered a loads in the region if (1) such amount was Power Act through mechanisms in its number of contract amendments to its disposed of by such customer outside the 1981 contracts including the Firm public utility customers allowing them region, and (2) as a result of such disposition, Resource Exhibit (FRE), the Assured to reduce their purchases from BPA and the firm energy requirements of such Capability Exhibit and other contract serve a portion of their load from the customer other customers of the provisions. A FRE is a list of firm Administrator are increased. Such amount of wholesale marketplace. These examples energy shall not be excluded, if the resources to be used by the customer in mean that BPA, working with customers Administrator determines that through serving its regional load. A firm and other regional constituents, needs to reasonable measures such amount of energy resource is one that can contribute a re-assess how a customer’s use of the could not be conserved or otherwise retained specific amount of electricity for marketplace should be factored into for service to regional loads. The operational and power planning BPA’s calculation of net requirements. Administrator may sell as replacement for purposes to serve a customer’s loads. any amount of energy so excluded only All of the current power sales contracts Separation of Utilities’ Transmission energy that would otherwise be surplus. 16 negotiated in 1981 will terminate by and Power Sales Business Lines U.S.C. 389f(c) (emphasis supplied). October 1, 2001 and must be replaced. The purpose of passage of the Energy The Northwest Preference Act The wholesale electricity market has Policy Act of 1992 was deregulation of provision is: undergone major changes since 1981. As the wholesale electricity market. Federal 3(d) The Secretary, in making any a result, this is only the second time, Energy Regulatory Commission orders determination of the energy requirements of since the Northwest Power Act became 888 and 889 accelerated this process. any Pacific Northwest customer which is a law that BPA has addressed the issue of Among the requirements of FERC order non-Federal utility having hydroelectric how net requirements should be 889 is that utilities functionally separate generating facilities, shall exclude any determined for its utility customers. their transmission and power marketing amounts of hydroelectric energy generated in business lines so that a utility’s power the Pacific Northwest and disposed of The Context: Net Requirements in a marketing business has access to no outside the Pacific Northwest by the utility Changing Market more information about its transmission which, through reasonable measures, could In 1992 Congress passed the National system than any other participant in the have been conserved or otherwise kept available for the utility’s own needs in the Energy Policy Act deregulating the market. The intent of functional Pacific Northwest. The Secretary may sell the wholesale power side of the electric separation is to encourage full utility as a replacement therefor only what industry. BPA sells Federal power at competition in the wholesale electricity would otherwise be surplus energy. 16 U.S.C. wholesale under contracts with eligible market by providing all marketers equal 837b(d). customers. Deregulation has changed access to the means of delivery. BPA has the playing field of the wholesale chosen to voluntarily comply with the Net Requirements electricity marketplace causing BPA and FERC orders. One of the ways BPA The term ‘‘net requirement’’ means other utilities to change the way they do identified a customer’s export of its non- the amount of Federal power that a business. These changes have forced Federal resources when determining a public utility, cooperative or investor- BPA to re-assess how it implements customer’s power requirements under owned utility is entitled to purchase sections 5(b) and 9(c) of the Northwest its 1981 contracts was by examining from BPA to serve its regional Power Act and 3(d) of the Northwest transmission schedules of non-Federal consumers’ loads. The definition is Preference Act. The following provides utilities to other utilities outside the based on section 5(b)(1) of the a general overview of the context of Northwest. Under FERC order 889, Northwest Power Act of 1980 under these changes and how they may affect BPA’s Power Business Line no longer which BPA offers to sell firm power in BPA’s determinations of a customer’s has access to this information. excess of a customer’s own firm net requirements. resources. In calculating net Retail Load Loss for BPA Customers requirements obligation to any The Market as a Firm Resource Changes are occurring in the retail customer, Congress directed BPA to In 1981 relatively few BPA customers electricity industry as well as in the consider exports of the customer’s non- owned generating resources that were wholesale market. In most states each Federal resources outside the Pacific used to serve a portion of their load. The utility has a service area in which it is Northwest. These considerations are operation of most of these resources was the exclusive supplier of electric service
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24378 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices to retail consumers. BPA sells its power changes will be made to the amounts of would be no increase in the amount of to these utilities on a wholesale basis power BPA sells a customer when that the purchase over the term of the and they resell the electricity to their customer no longer serves a particular agreement. Under these products, the retail consumers. Under retail electric regional load or serves new loads. customer agrees to provide non-Federal market deregulation, a utility may resources to serve its load growth. Proposed Principles continue to operate its distribution (A) BPA’s initial offer will be based system but other marketers may BPA is offering the following draft on the utility’s actual loads or a compete to supply electricity to proposal as an approach to determining reasonable and verifiable estimate of the residential, commercial and industrial firm power net requirements utility’s retail load in the region consumers. The substitution of electric obligations. It is intended to answer the identified in its projected business plan power suppliers raises a risk of retail following general questions: at the time of the offer. load loss for some BPA customers. As 1. In negotiating a new post-2001 This principle is based on section more states deregulate their retail power sales subscription contract, how 5(b)(1) of the Northwest Power Act. BPA electricity markets, the effect of retail should BPA determine a customer’s net is to offer power to serve a customer’s load loss on a customer’s net requirement based on the customer’s firm consumer load in the region. In a requirements in the region becomes use of firm resources and its consumer deregulated market, the longer the term increasingly important. One concern is loads? of the contract, the greater the how the loss of industrial and 2. How will changes in a customer’s likelihood that changes will occur in a commercial load by a BPA customer net requirement be made during the customer’s regional consumer load. This will change BPA’s obligation to provide term of its subscription contract? principle seeks to address this concern 3. How will BPA determine, as net requirement load service. The by limiting the application of the required by section 9(c) of the Northwest Power Act does not forecast used to initially determine a Northwest Power Act and section 3(d) of distinguish between the various types of customer’s net requirements to one year. the Regional Preference Act, the effect of consumer loads when calculating BPA’s Principle II.A. below requires a a customer’s export of its resources on net requirements. Loss of load service mechanism for a BPA annual review of BPA’s net requirements obligation to by the utility to another provider may a customer’s net requirements load. affect the total amount of power a supply power to the customer? 4. How should BPA implement its (B) Except as provided in I.D. below, customer could continue to buy from BPA will require that the utility BPA. policy on the factual determinations for treatment of customer’s firm resources continue to apply all current generation Effects of Sales of Generating Resources under its statutes? and long-term power purchase contracts and Other Assets on Net Requirements to serve that customer’s regional I. Initial Determination of Net consumer load under a subscription As a result of deregulation, some Requirements utilities have sold or are likely to sell contract. These resources are included generating resources on the market In the remainder of this notice, in the Firm Resource Exhibit of a BPA which have historically been dedicated proposed principles are in regular type customer’s current 1981 or 1996 power and used to serve Northwest retail with explanatory material in italic. sales contracts for the 1998–1999 consumer load. The buyers of these This section describes how BPA will operating year. BPA also will require all resources will likely sell their output for contractually limit and define its current long-term surplus power the highest price they can receive, either obligation to provide power to a purchase contracts or excess Federal inside or outside of the region. customer under the Power Subscription Power purchase contracts that extend By law, BPA is required to make Strategy. It is based on language in the beyond 2001 to be applied to serve a factual determinations regarding the Northwest Power Act that requires BPA customer’s regional consumer load sale of certain resources and its effect on to offer power to serve a customer’s under a subscription contract. BPA’s service obligations to all regional consumer load. Some products (C) BPA will consider any purchase customers and BPA’s cost-based rates. meet a utility’s full load minute by contract that terminates after September Section 9(c) of the Northwest Power Act minute, while other products provide 30, 2001, to be a long-term power and section 3(d) of the Regional power services based on the difference purchase contract that extends beyond Preference Act require that BPA reduce between a customer’s own resources 2001. the amount of power a utility receives used for load and their BPA purchases. (D) BPA will offer the customer power under its BPA contracts based on Two products offer service on a planned products and services at the Priority findings regarding its exports out of the or forecasted load, a fixed block product Firm (PF) rate and without a PF region. Complying with this legal and a SLICE product. For these surcharge for consumer loads that are no mandate in a competitive market is products, the amount of Federal power longer served by generation resources much more complex now than when the offered must be based on reasonable and long term power purchase contracts wholesale market was regulated and and verifiable estimate of the customer’s due to resource retirement, there were comparatively few customers regional consumer load. BPA’s Power obsolescence, or other loss of resource, with non-Federal generating resources. Products Catalog of the Power or loss of contract right. Purchases of Other utilities have decided to sell Subscription Strategy proposed a Federal surplus power and Excess portions of their electricity supply and principle in which the fixed block Federal power that extend beyond 2001 distribution businesses in certain parts products and the SLICE products are are treated as long term power purchase of the region. In certain instances, new based on the customer’s existing contracts. Post-2001 PF power sales for public power entities are forming and regional consumer load without resource replacement shall commence proposing to take over the business consideration of changes for load on the dates such resources are lost, formerly provided by investor-owned growth. These products use an annual provided that BPA has been notified in utilities. Section 5(b)(1) directs BPA to estimate of consumer loads, which is writing of the resource loss in time to sell power to meet the firm power loads done once, at the start of the contract. permit the agency to include the of a utility customer in the Pacific They assume the customer and not BPA additional load in the BPA rate process Northwest. BPA must address how will serve any load growth. Thus, there and that the generating resource or
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24379 contract meets the standards described section 9(c) of the Northwest Power Act. load served by that customer or that in II.E below. 16 U.S.C. 839(f)c. reduce its net requirements. The Principles I. B., C. and D. are based (E) In determining a customer’s net principles are based on sections 5(b)(1) on sections 5(b)(1)(A) and 5(b)(1)(B) of requirements load, BPA will follow the and 9(c) of the Northwest Power Act the Northwest Power Act. The Declaration Parameters included in the and 3(d) of the Regional Preference Act. Subscription Strategy stated that a Power Products Catalog under Actual The following principles propose a customer must continue to serve its Partial Service in establishing the contract mechanism for making loads currently served by a customer’s capabilities of the customer’s firm additional sales of power to utilities and generating resources or long-term power resources under the Subscription the circumstances under which BPA purchase contracts that continue contract. would apply the PF Surcharge, Targeted beyond 2001. Principle I.B. clarifies that Principle I.E. follows the approach Adjustment Surcharge to such the resources a customer is required to established in BPA’s Power Products purchases by public agency customers, apply to load is limited to those Catalog for Actual Partial Products for or the NR rate for purchases by investor- resources included in the customer’s determining the capabilities of the owned utilities (IOUs). The actual rates current Firm Resource Exhibit for the customer’s resources to be applied to its that apply to any increased amounts of 1998–1999 operating year. These loads. BPA considered whether there power sold for net requirements loads principles state that all power purchase might be a simpler method for will be established in the BPA rate case. contracts with termination dates beyond determining customer resource These principles focus on the 2001 are included in the customer’s firm capability. However, there are enough transition from the 1981 contract model resources. Under the subscription unique customer perspectives on to the Power Subscription Strategy contract, the customer must use these estimating resource capability that this model. Under the 1981 contract, BPA resources to serve its regional consumer approach appears to best meet the obligated itself to serve the entire loads. These long-term power purchase needs of resource determination in a regional load of a utility based upon contracts that continue beyond 2001 deregulated market. notice periods and availability of power include presubscription contracts and (F) BPA will determine what, if any, for acquisitions. A BPA goal under the other long-term contracts to purchase amount of thermal and/or hydroelectric Power Subscription Strategy is only to Federal power from BPA. The principles peaking capacity and electric energy a acquire new resources to serve a also acknowledge that there are a customer has exported from the region customer’s net requirements load number of these power purchase that could be conserved or otherwise increase beyond its initial subscription contracts which customers know will retained for service to regional loads. amount based on a bilateral agreement expire prior to the end of the BPA rate The customer’s net requirements must in which the requesting customer takes period. be reduced to the extent that BPA all the financial risk. (Note: The initial The proposed principle allows the determines the exported energy subscription amount includes load customer to purchase net requirements increased BPA’s obligation to any growth for a customer purchasing that load service from BPA at the PF rate and customer to provide power to meet right.) BPA will still have to meet all of without the PF surcharge as long as BPA regional loads. its total regional load obligations to all is informed of the expiration dates of Principle I.F. is based on section 9(c) customers. Accounting for reductions in the contracts and the cost of such of the Northwest Power Act. This loads is part of meeting BPA’s total service has been identified and included principle states that BPA will implement regional firm load obligations. in BPA’s rate case. The customer must section 9(c) by determining whether a (A) BPA will require, at least consult with BPA and obtain BPA’s customer has exported power from a annually, that a customer report agreement in writing to receive thermal resource, whether BPA’s net specified events causing a reduction in requirements load service from BPA for load requirements have increased as a its consumer load. For fixed block and a generating resource the customer result and whether the power could be SLICE purchasers, if the reductions believes should be permanently conserved or otherwise retained for cause a customer’s net requirements to discontinued due to obsolescence or service to any regional loads by fall below the amount of power being retirement. Resources or contracts that reasonable means. The proposed purchased from BPA, the agency will are lost after BPA submits its final rate principle states that BPA will implement implement the mitigation measure for case to the Federal Energy Regulatory section 3(d) of the Regional Preference retail load loss specified in the Commission will incur a PF surcharge to Act by determining whether a customer customer’s contract. For investor-owned cover any additional power costs BPA has exported power from a hydroelectric utilities, BPA will provide the faces to serve the additional load. resource and whether the hydro remarketing product option. BPA considered whether the resource could be conserved or kept Principle II.A. is based on section customer’s use of the market as a available. In its 1994 9(c) policy, BPA 5(b)(1) of the Northwest Power Act resource should also be considered. adopted a policy stating that a which limits BPA’s net requirement Many customers who use the market as customer’s hydroelectric resources obligation to a utility’s firm consumer a resource would likely face a loss of could always be applied to load in the load in the region. This principle contract right for their short-term region. This principle also continues addresses the issue of the loss of retail contract purchases. Additionally, some BPA’s past determinations for specific consumer load by a utility and the use customers have been serving their resources that resulted in reductions in of the remarketing product mitigation consumer load in the region with net requirements of customers. measure specified in section IV.H.2. of generation resources not included in the Subscription Strategy. This their Firm Resource Exhibits of their Il. Changes in Net Requirements During remarketing provision provides a current power sales contract. Instead of Term of the Contract financial benefit to residential loads for the market, they are using their own This section addresses reductions in IOUs that no longer can purchase non-Federal generation to serve their BPA’s net firm load requirements requirements power due to the utility’s load. The proposed principles address a obligation due to changes on or sale of retail load losses. BPA considered other customer’s use of those resources in a customer’s system which will change alternatives such as a conditioned serving its regional load based on the amount of regional firm consumer consent to the removal of customer
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24380 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices resources dedicated to serving regional new non-hydro renewable resources and 2001, if such dedicated resources are load under their subscription contract. export these outside the region without lost for specified reasons described in Under such an alternative, BPA would reducing its net requirement. This right principle II.E. during the rate period. allow a customer to reduce the amount to reduce BPA purchases shall apply (E) Generation resources and long of resources serving its load equal to the only to the first 200 average megawatts term power purchase contracts reduction in requirements service of all new renewable resources extending beyond 2001 are considered caused by the retail load loss. BPA is developed by all BPA customers within lost if they are permanently interested in comments on this the region. The new renewable discontinued during the rate period due alternative and other alternatives to resources must meet the standards for to retirement, obsolescence, loss of the address this issue. BPA’s conservation and renewable resource, or loss of a contract right. Loss (B) BPA will reduce a customer’s net resources discount, and be dedicated to of a resource must result from factors requirements by the amount of any serving the customer’s load. beyond the reasonable control of the exports of hydroelectric or thermal Principle II.C. is based on the regional customer and which the best efforts of resources if BPA determines such interest to encourage the development the customer are unable to remedy. BPA resources could have been conserved or of renewable resources and follows will consider such resources lost due to otherwise retained to meet regional firm statutory language in section 5 (b)(1)(B) permanent discontinuance because of power requirements of any BPA of the Northwest Power Act that allows obsolescence or retirement only if the customer. On an annual basis, BPA will the Administrator to consent to customer has consulted with BPA and determine whether a customer’s export resources changes under a requirements BPA has agreed in writing to such of thermal or hydroelectric resources contract. This principle would allow discontinuance. could have been conserved or otherwise customers to dedicate a new renewable Principles II. D. and E. continue BPA’s retained to serve any regional loads. resource to serve their retail consumer existing contract standards regarding a Principle II.B. is based on existing load. BPA has consistently interpreted customer’s loss of firm resources. These BPA policy for export sales of section 5(b)(1) as allowing the principles have worked for 20 years and hydroelectric resources and thermal Administrator to specify by contract the allow BPA to consider all the facts in resources applied to regional load. See customer’s dedication of additional determining when BPA must replace a 1994 Non-Federal Participation resources to serve its load. BPA’s customer’s lost resource with Federal Capacity Ownership, and Section 9(c) Subscription Strategy requires resources. Policy. Reductions in BPA power customers to take the risks on their non- BPA will provide replacement firm requirements obligations due to a Federal resource placement power service for the regional consumer customer’s export of power from its commensurate with BPA’s risks in load served by the resource as net resources can come at any time. For covering future costs of Federal requirements power only if the customer example, a customer could end a resources. has lost a resource or lost a contract for contractual sale to another customer, BPA requires customers to specify the the reasons specified above. For where such other customer had amount of firm resources they dedicate example, expiration of a customer’s dedicated the power purchase to serve to serve their retail consumer loads for non-Federal power purchase contract is its firm loads. By giving six months’ the term of their contract. BPA is willing considered a loss of a contract beyond notice, the customer losing the power to sign a Subscription contract for terms the reasonable control of a customer, purchase could request additional ranging from 1 to 20 years. This and which the best efforts of the service from BPA at the PF Surcharge renewable resource principle provides customer are unable to remedy. If a rate. If the customer owning the an exception to the policy that a customer requests additional power resource has sold power from its customer’s firm resources must be purchases from BPA for its regional firm resource on the market after it was known and dedicated at the start of the load served by its resources for any withdrawn, then it would face a section BPA contract and for the entire term of other reasons, BPA would make such 9(c) determination and would a contract. The exception provides for purchases of replacement power from potentially be subject to a reduction in the Administrator’s consent to the the market under separate contracts and its net requirements. In this example, addition of new renewable resources its section 7(f) surplus power rates. the withdrawal of the power could cause during the term of the contract and (F) BPA will assume the market will BPA’s obligation to the second customer allowing removal of such renewable provide resources to the customer to to increase. BPA’s policy on resources at a point prior to the end of serve any increased consumer loads. hydroelectric resources under section the contract. BPA has placed two BPA load service for new annexed loads 3(d) of the Regional Preference Act is conditions on this exception: (1) resulting from open access or actual hydroelectric resources can always be qualified renewable resource annexations or mergers will be provided operated or applied against regional dedications are limited to the first 200 under the Targeted Adjustment Charge load by reasonable means. BPA’s policy average megawatts of renewable or the NR rate. Additional service for on thermal resources applied by a resources that customers request to lost generation resources and lost long customer to its regional consumer load dedicate during any year; and (2) only term power purchase contracts is that such resources can be conserved resources that would qualify for BPA’s extending beyond 2001 will be provided or retained for service to regional load. conservation and renewable resources at the PF Surcharge or NR Rate, upon BPA is proposing changes in its policy discount are eligible. the customer’s request for service and on export of thermal resources under (D) BPA will provide net firm notification to BPA that such an event this Federal Register Notice. requirements service under the PF has occurred. Service to replace the (C) Within the following limits, BPA Surcharge rate or the New Resource above qualified renewable resources at will reduce a customer’s take-or-pay Firm Power (NR) rate for a customer’s the end of their dedicated contract obligation by an amount equal to the regional loads not included in the rate period will be provided at the PF rate. customer’s dedication for a specified case and which are served by the BPA will provide firm power service for contract period of new renewable customer’s dedicated generation annexed loads, lost resources, and resources developed by that customer. resources and its long term power replacements of qualified renewable Alternatively, a customer may develop purchase contracts that extend beyond resources six months following
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24381 determination that such event has customer can demonstrate one or more solely for sale in the market, or that the occurred or as mutually agreed. of the following: power from the resource is being used Principle II.F. states that BPA will 1. The resource fits within the by a Direct Service Industry (DSI) or provide firm power requirements service definition of a ‘‘market resource’’ as another BPA utility customer to serve to annexed loads or for lost resources described in section III. D. 2. of retail load in the region;, or that a prior for all customers. However, the rate Appendix B of BPA’s NFP Section 9(c) BPA determination under Section 9(c) arranged for such service may include Policy; allowed the resources to be exported. an adjustment for costs BPA incurs to 2. The resource is under a current If a customer demonstrates that the provide the additional service. BPA post-2001 contract committed to serving resource has been sold to a DSI or considered making changes to its net a BPA customer’s regional load; or another utility in the region, the requirements service only at its annual 3. The resource is subject to a prior purchasing utility must demonstrate review of load or customer resource BPA written section 9(c) determination that power from the resource is changes when determining any that the resource could not be conserved dedicated by contract with BPA and is reductions in the customer’s net or otherwise retained to serve regional being used to serve its retail load in the requirements purchase. However, BPA load. region. 4. The Administrator determines a decided that a rolling notice period for To implement this principle, the thermal resource could not be conserved annexation or loss of resource would customer must provide that commercial or otherwise retained to serve regional better serve the sporadic nature of these information it wishes to share with BPA load by reasonable means under events. BPA has assumed that six on its power sales, so BPA can make the principle III.B. required factual determinations. BPA months would be the minimum time (B) The policy BPA proposes for needed to determine the facts considered whether it should continue determining when a thermal resource the practice stated in the 1994 Non- surrounding the annexed load or loss of could not be conserved or otherwise Federal Participation Section 9(c) Policy resource and allow BPA to prepare to retained to serve regional load is met of examining a customer’s transmission provide service. It would also give BPA when: schedules to points outside the Pacific time to purchase any additional (i) There were no purchasers after the Northwest. This alternative was rejected resources necessary to serve the load. resource was offered for sale in the due to limitations on the flow of Principle II.F. would give BPA the region to BPA and all of its regional information from transmission discretion to provide service on shorter customers for a period of at least one functions to power sales functions notice if it is able to do so. year through a public process at cost arising from functional separation lll. How BPA Will Determine if a plus a reasonable rate of return. In the under FERC orders 888 and 889. Customer Has Exported a Resource case of a resource offered for a fixed Principle III.B.4 addresses a From the Region Requiring a Reduction term, the output of such thermal customer’s sale of resources, which are in the Customer’s Net Requirements resource shall not be deducted from the determined to increase the owner’s or purchaser’s maximum firm Administrator’s power requirements Section 9(c) of the Northwest Power requirements for the term of the offer or obligations to serve load in the region. Act requires BPA to make several the term of the export, whichever is less. Such a sale must meet one of three tests factual determinations when customers (ii) The resource is permanently in order for BPA to determine that the sell or dispose of power from their auctioned through a public process and resource could not be conserved or resources on the market for export was not purchased by a regional otherwise retained to serve regional outside the region. Section 3(d) of the purchaser. In the case of a resource load. Unless at least one test is met, the Northwest Preference Act requires BPA permanently auctioned, the output of amount of power, capacity and energy to reduce its sale of requirements power such thermal resource shall not be sold and deemed exported would be to any customer that sells or disposes of deducted from the owner’s net treated as a resource that could be used hydroelectric power outside the region requirements. or retained to serve firm load in the which cannot be conserved or kept (iii) The Administrator determines region and whose sale will result in available for use. These determinations that the market price for power makes BPA’s obligations increasing. Thus, BPA are particularly difficult in a it unreasonable to retain that resource to would reduce its section 5 electric deregulated market where sales are serve regional load. power requirements contract obligations often made to marketers at the generator Principle III.A. addresses the to that customer by the amount of the busbar, and where schedules of difficulty in a deregulated wholesale power sold from the resource. transmission are not available to BPA’s market of determining whether power The first test provides that a customer Power Business Line. Adding to the from a customer’s resource has been may offer power from a resource for sale difficulty is the fact that merchant exported in a manner that increases the in the region to BPA and its eligible activity by all customers is confidential Administrator’s firm energy customers for a period of at least one- so that commercial information is not requirements. The proposed principle year at cost and a reasonable rate of readily available for factual states a rebuttable presumption that all return. If BPA or a BPA customer in the determinations. power from a customer resource which region does not offer to purchase the (A) Subject to certain showings, the has been used to serve regional loads resource, then the Administrator would output of any customer’s thermal and which is sold on the market shall determine that the output of the generating resource existing on the date be treated as power exported by the resource could not be conserved or the subscription strategy was published seller. Such a sale shall be deemed to otherwise retained to serve regional load and that has been used to serve regional increase the Administrator’s firm power for a period equal to the duration of the firm load at some time during its life requirements under the customer’s or offer of the resource or the term of the will be treated as exported from the another customer’s BPA power sales export whichever is less. region in a manner that increases the contracts. Power sold from the resource The second test provides an alternate firm energy requirements of the will not be treated as an export if the mechanism in which a customer may Administrator. The customer’s net customer can demonstrate the resource auction the resource to the highest requirement will be reduced unless the was: Not used for load and developed bidder as long as BPA and all BPA
VerDate 26-APR-99 18:27 May 05, 1999 Jkt 183247 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24382 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices regional customers are reasonably customer under its BPA section 5 a resource terminated a contract notified of the auction and have a contracts. purchase used by another utility to serve reasonable opportunity to bid on the (D) Any customer’s sale on the market its regional retail load. The owner of the sale. If the resource is auctioned and the or export of the output of thermal resource would be required to customer can demonstrate that BPA and resources that is included in any other demonstrate that the resource has either its regional customers had a reasonable BPA customer’s Firm Resource Exhibit been sold to another regional utility to opportunity to participate, the for the 1998–1999 Operating Year serve its consumer load in the region or Administrator would determine that the (under a 1981 contract or a resource could not have been conserved or resource could not be conserved or exhibit under a 1996 contract) shall be otherwise retained to serve any BPA otherwise retained to serve regional considered to meet the section 9(c) tests customer’s regional loads. load. of increasing the Administrator’s (F) Any regional hydroelectric BPA considered a possible alternative electric power load requirements under resources exported by a customer shall to the second test that would limit the the Subscription contracts. The output reduce the customer’s BPA power use of auctions based on an economic of such resources shall be deducted requirements under its BPA contracts, standard of paying the stranded costs of from the selling customer’s net unless the resource is contractually a utility. Under that test, BPA would requirements unless BPA determines committed to serving another reduce its net requirements obligation to the resource could not be conserved for customer’s regional load or such the utility if the proceeds of the auction service to load in the region under III.B. resource was previously determined to and export of a resource resulted in net above. be serving that customer’s load and the (E) Any customer’s sale on the market positive benefits above the cost and customer replaces the resource by a or export of the output of thermal reasonable rate of return for the market purchase or new generation. resource, and if such benefits were not resources that are currently being used to serve that customer’s or another Principle III.F. requires the reduction paid to the consumers of a utility. The of a customer’s BPA power requirements purpose of such a limitation is to customer’s regional load but are not included in either customer’s Firm obligation under its BPA contracts, if preserve the benefits of low cost the customer exports any hydroelectric resources for regional loads. Resource Exhibit for the 1998–1999 Operating Year (under a 1981 contract power from the region. If a customer The third test allows the or a resource exhibit under a 1996 demonstrates that the resource has been Administrator to determine that a contract) shall be considered to meet the sold to a DSI or another BPA customer resource could not be conserved or section 9(c) test of increasing the utility in the region, then the purchaser retained to serve regional load based on Administrator’s electric power load must demonstrate that its purchase is current market conditions and prices in requirements under the Subscription dedicated to and is being used to serve the region for a specified period. If the contracts. The power output of such retail load in the region. If in calculating Administrator makes that resources shall be deducted from the the customer’s net requirements, BPA determination, then a customer would customer’s net requirements unless BPA determines the resource was already be allowed to sell a resource during the determines the resource could not be dedicated to serving the customer’s firm period without a reduction in BPA’s conserved for service to load in the load, BPA will treat the hydro resource obligation to provide power under its region under III.B. above. as remaining dedicated and will not Subscription contract. Proposed principles III.D. and III.E. further reduce its net requirements (C) All new thermal generating divide all customer firm resources obligation to the customer, nor will BPA resources developed by BPA customer currently used to serve load into two replace the resource. utilities after the December 21, 1998, classes: (1) those resources that are Responsible Official: Mr. Steve Oliver, publication date of the Federal Power currently in any BPA customer’s Firm Manager, Bulk Power Marketing, is the Subscription Strategy will be treated as Resource Exhibits; and (2) those official responsible for the development meeting the ‘‘market resource test,’’ resources that are not included in Firm of the draft policy proposal for unless power from the resource is Resource Exhibits. BPA has proposed addressing issues under sections 5(b) dedicated by a BPA customer under its that it will require only resources and 9(c) of the Northwest Power Act BPA contracts to serve consumer load. currently specified in any of its regarding the amount of Federal power In such event, the thermal generating customer’s Firm Resource Exhibits to be a customer may purchase under BPA resource will be treated in the same dedicated by the customer to serve its subscription power sales contracts. manner as existing non-Federal regional load under its BPA contracts. resources dedicated by customers to Issued in Portland, Oregon, on April 26, Customer’s resources that are currently 1999. regional load under Subscription used to serve regional load but which Judith A. Johansen, contracts. are not included in Firm Resource Principle III.C. proposes to change the Exhibits, if sold on the market, will Administrator and Chief Executive Officer. definition of ‘‘market resources’’ under result in increases in BPA’s firm power [FR Doc. 99–11407 Filed 5–5–99; 8:45 am] the Section 9(c) Policy to create a requirements obligations under section BILLING CODE 6450±01±P presumption that new resources are 5 contracts. The customer selling the developed for sale in the deregulated output of the resource will be required DEPARTMENT OF ENERGY market and not for service to a to demonstrate that the resource has customer’s retail load. The exception either been sold to a regional utility to Bonneville Power Administration would be where a customer specifically serve that utility’s consumer load in the chooses to dedicate part or all of the region, or demonstrate how the resource Opportunity for Public Comment output of the resource to serve its own could not have been conserved or Regarding Bonneville Power load or regional load of another otherwise retained to serve any BPA Administration's Subscription Power customer as stated below. Otherwise, all customer’s regional loads. Sales and Standards for Service such resources sold on the market Principle III.D. also recognizes that would not increase the Administrator’s BPA would face an increase in its power AGENCY: Bonneville Power power requirements obligation to any requirements obligations if the owner of Administration (BPA), DOE.
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24383
ACTION: Notice of draft policy proposal. Requirements 5(b) and 9(c) Policy organization or organization of citizens Proposal. If any additional meetings are supplying, or which may be created to SUMMARY: This notices announces a scheduled, the information will be supply, members with any kind of draft policy proposal to modify BPA’s posted on the web site listed below. goods, commodities, or services, as standards for service to permit the http://www.bpa.gov/Power/subscription nearly as possible at cost.’’ purchase of Federal power. FOR FURTHER INFORMATION CONTACT: Mr. BPA has indicated that a Federally One of the BPA’s current eligibility recognized tribe that forms a standards for potential public agency Michael Hansen, Public Involvement and Information Specialist, Bonneville cooperative utility pursuant to its tribal utility customers and privately owned constitution and laws would be eligible companies selling to the general public Power Administration, P.O. Box 3621, Portland, Oregon 97208–3621, for preference status. Further, a tribe requires the utility or company to own with the legal right could serve non- its own distribution facilities. BPA is telephone (503) 230–4328 or 1–800– 622–4519. Information can also be tribal members within its reservation proposing that it modify this standard to boundaries, but would otherwise need permit in the future that a customer obtained from your BPA Account Executive or from: to comply with state law for service either (1) own a distribution system, or outside the tribe’s jurisdiction. (2) have an ownership-type lease Ms. Ruth Bennett, Acting Vice For potential public customers who arrangement for a distribution system. President, Power Marketing, 905 N.E. will resell Federal power to retail The reason for this proposal is driven by 11th, P.O. Box 3621, Portland, OR consumers, the second requirement is the Federal Power Subscription 97208, telephone (503) 230–7640 that a public body or cooperative Strategy, ongoing changes to the electric Mr. Rick Itami, Manager, Eastern Power applicant be in the public business of power industry and increased interest Business Area, 707 W. Main Street, selling and distributing the Federal by some regional parties in becoming Suite 500, Spokane, WA 99201, power to be purchased from BPA.1 If not eligible to buy Federal power at the PF telephone (509) 358–7409 presently in business, section 4(c) of the Mr. John Elizalde, Acting Manager, rate. Bonneville Project Act directs BPA to This Notice on Eligibility and Western Power Business Area, 700 afford the prospective customer a Standards of Service for Purchasing N.E. Multnomah, Suite 400, Portland, reasonable time, as determined by the Federal Power will afford a 30-day OR 97232, telephone (503) 230–7597 Administrator, to allow it to get into the public review and comment period on Mr. Steve Oliver, Manager, Bulk Power public business of selling and the proposal to permit ownership-type Marketing, 905 N.E. 11th, P.O. Box lease arrangements to be used by 3621, Portland, OR 97208, telephone distributing power. BPA may not deny potential customers to meet one of the (503) 230–3295 the request of a preference applicant that has not yet obtained necessary qualifications to purchase Federal SUPPLEMENTARY INFORMATION: In its financing to get itself into the business power from BPA. BPA’s proposal and Federal Power Subscription Strategy, background information on BPA’s of selling and distributing electric dated December 21, 1998, the energy until after the reasonable time current eligibility requirements and Bonneville Power Administration stated standards for service regarding potential has passed. that new public agencies that form and Finally, section 4(d) declares several public agency and other customers qualify for service within the period of follows below. BPA is also putting policies regarding the preferential status the subscription contract window of public bodies and cooperatives. They forward other concepts for would be offered power at the priority consideration and invites comments on reinforce the directives found in section firm (PF) rate for the post 2001 rate 4(c).2 First, preference to public bodies these as well. period for their entire general DATES : Public meeting dates: May 27, requirements load obligation, except for 1 Section 5(a) of the Bonneville Project Act 1999, and June 2, 1999. Close of any new large single loads. The strategy authorizes the Administrator to sell Federal power comment date: June 11, 1999 further states that new preference tribal at wholesale to public bodies for direct ADDRESSES: If you are interested in utilities that form and qualify for service consumption of the Federal power. In order to receive Federal power for its own use a potential commenting on the Eligibility and will be treated the same as other new public body end use customer needs to meet BPA’s Standards for Service Policy Proposal, public agency utilities with respect to standards for service specific to direct you have several options. the availability of power at the PF rate. consumption. BPA is not proposing any changes in 1. You can send written comments to its current standards for this class of potential Bonneville Power Administration, P.O. Public Body and Cooperative Customer customers. Eligibility Under Bonneville Project Act 2 Section 4(c) provides in pertinent part: ‘‘An Box 12999, Portland, OR 97212, or you application by any public body or cooperative for can fax comments to (503) 230–4019. If To be eligible to purchase power from an allocation of electric energy shall not be denied, you wish to send your comments BPA on a preference and priority basis, or another application competing or in conflict electronically, email comments to: an applicant must meet two therewith be granted * * * on the ground that any proposed bond or other security issue of any such [email protected]. Comments must be fundamental statutory requirements public body or cooperative, the sale of which is received by close of business Friday, found in the Act of August 20, 1937, necessary to enable such prospective purchaser to June 11, 1999. (the Bonneville Project Act) Pub. L. 75– enter into the public business of selling and 2. You also can attend one or both of 329. First, the applicant must meet the distributing the electric energy proposed to be purchased, * * *’’ the two public comment meetings. One statutory definition of one or the other Section 4(d) provides in pertinent part: ‘‘It is meeting will be held on Thursday, May of the terms ‘‘public body’’ or declared to be the policy of the Congress, as 27, 1999, in Spokane, Washington, at ‘‘cooperative.’’ Section 3 of the expressed in this chapter, to preserve the said Cavanaugh’s Inn at the Park, 303 W. Bonneville Project Act defines the term preferential status of the public bodies and cooperatives herein referred to, and to give to the North River Drive. Another meeting will ‘‘public body’’ or ‘‘public bodies’’ to people of the States within economic transmission be held in Portland, Oregon, on mean ‘‘States, public power districts, distance of the Bonneville project reasonable Wednesday, June 2, 1999, at the counties, and municipalities, including opportunity and time to hold any election or Sheraton Portland Airport Hotel, at 8235 agencies or subdivisions of any thereof.’’ elections or take any action necessary to create such public bodies and cooperatives as the laws of such N.E. Airport Way. Both meetings will Section 3 also defines the term states authorize and permit, and to afford such begin at 10:00 a.m. Comments also will ‘‘cooperative’’ or ‘‘cooperatives’’ to public bodies or cooperatives reasonable time and be collected on the Determining Net mean ‘‘any form of nonprofit-making Continued
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24384 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices and cooperatives is to be preserved. potential customers requesting a customers and to new private utilities Second, people are to be given contract for firm power under section selling to the general public. reasonable opportunity and time to hold 5(b) of the Act to comply with the Distribution Function any elections or to take any other Administrator’s standards for service in necessary action to create a public body effect on December 5, 1980, or as This criterion assures that BPA sells or cooperative. Third, once created the subsequently revised. 4 BPA has power consistent with the legal public body or cooperative is to be traditionally made its determination requirement that it be sold to public afforded a reasonable time and regarding eligibility for preference and bodies and cooperatives engaged in the opportunity to authorize and issue meeting BPA standards for service on a public business of buying and bonds or to arrange other financing case-by-case basis and communicated distributing power through distribution necessary to construct or acquire its standards and assessment of a party’s facilities owned by the customer. The necessary and desirable electric qualifications in correspondence to performance of the distribution function distribution facilities, and to become in parties seeking to purchase Federal by the party applying for preference all other respects qualified purchasers power under section 5(b). The following status has been viewed as an assurance and distributors of Federal power. To describes the standards for service, that the purposes of selling Federal date, BPA has interpreted section 4(c) including the eligibility requirements power on a preference basis are realized. and 4(d), particularly the language ‘‘to under sections 4(c) and (d) of the The same considerations are applicable construct or acquire necessary and Bonneville Project Act, applicable to to BPA sales to privately owned utilities desirable distribution facilities,’’ to potential public agency customers. selling Federal power to the general require that the applicant own its As a practical and legal matter, BPA’s public. That is, they have a distribution distribution system. determination of a customer’s eligibility system and are able to provide the Regarding nonpreference applicants to purchase preference power is power to retail consumers. Parties that for Federal power which will be resold included in an overall review to do not own, operate and maintain, or to the general public, BPA has required determine if the customer is in control the costs of the distribution may that such entities be properly formed compliance with the Administrator’s face the issue of how to demonstrate under state law, including compliance standards for service. To comply with that they are able to provide the benefits with any approvals, filing or regulatory the existing standards for service an of cost based Federal power to retail orders to which such businesses are applicant must: consumers. This standard is applicable subject under the laws of the states. BPA 1. Be legally formed in accordance to potential new preference customers has required that such private utilities with local, state and Federal laws; and to new private utilities selling to the also own their own distribution system 2. Own a distribution system and be general public. for making retail resale of Federal ready, willing and able to take power BPA must give the applicant a power. This requirement is based on from BPA within a reasonable period of reasonable opportunity to achieve section 5(a) of the Bonneville Project time; ownership including time needed to Act which distinguishes between a 3. Have a general utility responsibility finance the acquisition or construction privately owned public utility buying within the service area; of the necessary distribution. In general, Federal power for resale to the general 4. Have the financial ability to pay State law grants public bodies the power public from other sales to private BPA for the Federal power it purchases; of eminent domain allowing them to persons. 3 It is not based on sections 3 5. Have adequate utility operations acquire the distribution facilities of and 4 discussed above. and structure; and another utility through condemnation. 6. Be able to purchase power in In general, cooperatives have been able Standards for Service wholesale, commercial amounts. to construct or purchase their own The Northwest Electric Power Following is a more detailed systems through low-cost financing Planning and Conservation Act on 1980, explanation of the existing criteria. obtained from loans made by the Pub. L. 96–501, section 5(b)(4) directs Federal Rural Electric Administration Legal Formation the Administrator to require all (predecessor to the Rural Utility BPA will request an applicant to Service). opportunity to take any action necessary to demonstrate that all required steps authorize the issuance of bonds or to arrange other under applicable law have been taken to General Utility Obligation To Serve financing necessary to construct or acquire authorize its formation as a public body This criterion assures that Federal necessary and desirable electric distribution facilities, and in all other respects legally to become or cooperative. It also ensures that the power will be sold by the applicant in qualified purchasers and distributors of electric applicant is in the public business of a non-discriminatory manner for the energy available under this chapter.’’ buying and distributing, at retail, power benefit of the general public and 3 Section 5a of the Bonneville Project Act to be purchased from BPA, or is in the particularly of domestic and rural provides in pertinent part: ‘‘Subject to the provisions of this chapter and to such rate process of going into such a business. consumers. BPA has always required schedules as the Secretary of Energy may approve, The applicant must provide copies of that a customer serving retail consumer as provided in this chapter, the administrator shall filings of certificates and approvals from load have a ‘‘utility responsibility’’ to negotiate and enter into contracts for the sale at designated officials, such as by-laws and serve. This means that any retail wholesale of electric energy, either for resale or direct consumption, to public bodies and articles of incorporation, regulatory consumers may request and obtain cooperatives and to private agencies and persons approvals as required, and information service from the potential customer, and for the disposition of electric energy to Federal on whether public elections were limited only by service area or franchise agencies. Contracts for the sale of electric energy to required and held. This standard is allocation restrictions. An applicant any private person or agency other than a privately owned public utility engaged in selling electric applicable to potential new preference must have obtained authorization to energy to the general public, shall contain a serve certain loads or areas prior to provision forbidding such private purchaser to 4 Section 5(b)(4) of the Northwest Power Act receiving power from BPA for service to resell any of such electric energy so purchased to provides, ‘‘Sales under this subsection shall be such loads or areas. Any legal action any private utility or agency engaged in the sale of made only if the public body, cooperative, Federal electric energy to the general public, and requiring agency or investor-owned utility complies with the that challenges such service must be the immediate canceling of such contract of sale in Administrator’s standards of service in effect on resolved by final order before BPA the event of violation of such provision.’’ December 5, 1980 or as subsequently revised.’’ begins service. This standard is
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24385 applicable to potential new preference and in some western states at retail, as Western Area Power Administration, et customers and to new private utilities well as the interest of some tribes and al. 926 F.2d 974 (10th Cir. 1991). selling to the general public. other parties in forming and operating For Discussion: Concepts Regarding an electric utility, has prompted BPA to Financial Health and Ability To Pay Standards for Service assess whether or not a change in its This criterion assures BPA that the existing standards for service may be In addition to the ownership-type applicant is able to pay for the power it warranted. Some parties have lease arrangement, some parties have receives. BPA examines the applicant’s questioned whether BPA should suggested other concepts which may authority to collect money for the continue to require that preference meet the standards for service services it renders to its retail customers who serve retail consumers requirement. The concepts presented consumers—the ability to bill—and the own and operate a distribution system. below are for discussion purposes. BPA applicant’s authority to sue and be sued. A similar issue arises as to BPA’s sales is not making a proposal regarding these BPA reviews the applicant’s of Federal power to new private entities, concepts. organizational structure to see if there is as to the legal distinction between a Contractual Capacity Rights a financial officer and staff that utility selling to the general public and performs a billing and collection other sales. A customer could obtain long-term function. BPA will also examine, In response, BPA is inviting contracts for use of capacity on particularly in the case of a municipal comments from interested parties on distribution facilities or for access to or tribal applicant, whether the this proposal to allow ownership-type distribution according to state law applicant has the authority to segregate lease arrangements which, in addition which assure delivery of Federal power utility funds from a general fund, if one to direct ownership of a distribution to retail consumers. The distribution exists. This standard is applicable to system, qualify a potential public owner would operate and maintain the potential new preference customers and agency customer to be able to purchase distribution system. The preference to new private utilities selling to the PF power. All other eligibility criteria customer would contract for use of general public. would continue to apply. BPA proposes distribution and would perform, or be that a potential new customer who responsible for, meter reading, billing, Operations and Structure would sell power to retail consumers retail rate setting and all other services This criterion is used to provide BPA may use an ownership-type lease normally provided by a serving utility. arrangement in order to provide for reasonable assurance that the applicant The Utility’s Obligation To Serve has the ability to fulfill responsibilities distribution to retail consumers. A and duties under a power sales contract. customer could lease a distribution Retail access legislation may raise BPA examines the applicant’s ability to system for delivery of Federal power to issues regarding the standard for service perform utility functions such as retail consumers. In this concept, in requirement that a customer have a metering, billing, or operation and order to qualify as an ownership-type general utility responsibility or maintenance on utility facilities, or lease, the agreement would (1) be a long obligation to serve. An obligation to contract for such functions and control term arrangement for the life of the serve standard is linked with the the costs of such functions. This facilities or for a duration equal to the distribution function. Decisions made standard is applicable to potential new term of the BPA power supply regarding distribution should guide the preference customers and to new private obligation, and (2) give to the preference issues on a customer’s obligation to utilities selling to the general public. customer the right to operate, maintain serve standard. Following are variations and have repairs performed on the on the obligation to serve depending on Commercial Quantities system, as well as have complete how the utility accomplishes the Because BPA is directed to sell power decision authority over costs of the distribution function: at ‘‘wholesale,’’ BPA has generally distribution system. In addition, the • If a utility contracts for long-term required that customers purchase power customer would perform, or be capacity rights on the distribution in wholesale, commercial amounts of responsible for, all other utility system or has access to a distribution one megawatt or more. This standard is functions such as meter reading, billing, system according to state law, the applicable to potential new preference retail rate setting, and other services and distribution owner would operate, customers and to new private utilities functions provided by a serving utility. maintain, and have complete decision selling to the general public. The proposal is to have the potential authority over costs. In this case the customer and the distribution owner leasing utility should have the Connection to BPA Transmission enter into an arms length commercial obligation to serve, if it has the System transaction. The potential customer distribution capacity or can obtain the The BPA standards for service have should have the ability under such necessary capacity to serve the load. If also addressed matters related to the transactions to have a third party the leasing utility does not have and can configurations and operations of provide for the system maintenance not obtain the necessary capacity, then electrical facilities. Requirements for functions in an open competitive the distribution owner would interconnection to the BPA transmission process. potentially have the obligation to serve. system are governed by the Open Access This proposal to use an ownership- • Another concept would be to rely Transmission Tariff. The Transmission type lease arrangement is consistent on governing law, including retail Business Line is currently revising its with Department of Energy policy access law, to determine who will have Interconnection Standards. These which allows the use of a lease by a the obligation to serve in specific aspects of standards for service are not potential public agency customer to circumstances. addressed in this Notice. obtain a distribution system. See DOE Responsible Official: Mr. Fred General Counsel, ‘‘Request of City of Rettenmund, Customer Account BPA Proposal To Change Its Standards Needles for Reinstatement of Sales of Executive, Power Business Line, is the for Service Federal Power for Benefit of Its official responsible for the development The advent of retail electricity Citizens’’ (Nov. 21, 1978). This policy of the draft policy proposal for deregulation in the wholesale market was affirmed in Salt Lake City et al. v. modifying BPA’s standards for service
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24386 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices to permit the purchase of Federal be authorized effective the day after the and Part 284(G) of the Commission’s power. time allowed for filing a protest. If a regulations. Transco states that the Issued in Portland, Oregon, on April 26, protest is filed and not withdrawn addition of this delivery point will have 1999. within 30 days after the time allowed no significant impact on Transco’s peak Judith A. Johansen, for filing a protest, the instant request day or annual deliveries and is not shall be treated as an application for prohibited by Transco’s FERC Gas Administrator and Chief Executive Officer. authorization pursuant to section 7 of Tariff. [FR Doc. 99–11408 Filed 5–5–99; 8:45 am] the Natural Gas Act. Transco has estimated the total costs BILLING CODE 6450±01±P David P. Boergers, of Transco’s proposed facilities to be Secretary. approximately $31,300.00. RAC will [FR Doc. 99–11349 Filed 5–5–99; 8:45 am] reimburse Transco for all costs DEPARTMENT OF ENERGY associated with such facilities. BILLING CODE 6717±01±M Federal Energy Regulatory Transco also states that the installation and operation of Transco’s Commission DEPARTMENT OF ENERGY facilities will be performed in [Docket No. CP99±361±000] compliance with the environmental Federal Energy Regulatory requirements set forth in Section Texas Gas Transmission Corporation; Commission 157.206(d) of the Commission’s Notice of Request Under Blanket regulations, and that Transco will obtain Authorization [Docket No. CP99±358±000] all required environmental clearances prior to the commencement of April 30, 1999. Transcontinental Gas Pipe Line installation. Take notice that on April 28, 1999, Corporation; Notice of Request Under Blanket Authorization Any person or the Commission’s staff Texas Gas Transmission corporation may, within 45 days after issuance of (Texas Gas), 3800 Frederica Street, April 30, 1999. the instant notice by the Commission, Owensboro, Kentucky 42301, filed in Take notice that on April 27, 1999, file pursuant to Rule 214 of the Docket No. CP99–361–000 a request Transcontinental Gas Pipe Line Commission’s Procedural Rules (18 CFR pursuant to Sections 157.205 and Corporation (Transco), P.O. Box 1396, 385.214) a motion to intervene or notice 157.216 of the Commission’s Houston, Texas 77251, filed in Docket of intervention and pursuant to Section Regulations under the Natural Gas Act No. CP99–358–000 a request pursuant to 157.205 of the Regulations under the (18 CFR 157.205, 157.216) for Sections 157.205 and 157.211 of the Natural Gas Act (18 CFR 157.205) a authorization to abandon a Commission’s Regulations under the protest to the request. If no protest is transportation meter, located in St. Mary Natural Gas Act (18 CFR 157.205, filed within the time allowed therefor, Parish, Louisiana, under Texas Gas’ 157.211) for authorization to install and the proposed activity shall be deemed to blanket certificate issued in docket No. operate a sales delivery point for be authorized effective the day after the CP82–407–000, pursuant to Section 7(c) Resource Acquisitions Corporation time allowed for filing a protest. If a of the Natural Gas Act, all as more fully (RAC), under Transco’s blanket protest is filed and not withdrawn set forth in the request that is on file certificate issued in Docket No. CP82– within 30 days after the time allowed with the Commission and open to 426–000 pursuant to Section 7 of the for filing a protest, the instant request public inspection. This filing may be Natural Gas Act, all as more fully set shall be treated as an application for viewed on the web at http:// forth in the request that is on file with authorization pursuant to Section 7 of www.ferc.fed.us/online/rims.htm (call the Commission and open to public the Natural Gas Act. (202) 208–2222 for assistance). inspection. This filing may be viewed David P. Boergers, Texas Gas proposes to abandon a 2- on the web at http://www.ferc.fed.us/ Secretary. inch skid-mounted meter run known as online/rms.htm (call 202–208–2222 for [FR Doc. 99–11348 Filed 5–5–99; 8:45 am] the Smith Production-Charenton Meter assistance). BILLING CODE 6717±01±M and is located at Mile 2.9866 on Texas Transco states that it is proposing to Gas’ Jeanerette-Southwest 6-inch Line, install, own and operate a new sales located in St. Mary Parish, Louisiana. delivery point to RAC on the existing 4- DEPARTMENT OF ENERGY Texas Gas states the cost of removal is inch East White Lake Lateral in estimated to be $850. Vermillion Parish, Louisiana. The gas Federal Energy Regulatory Texas Gas declares that this meter was will be delivered through a new meter Commission constructed to transport gas for various to be installed, owned and operated by [Docket No. CP99±366±000] shippers. Texas Gas asserts that the last Transco. It is stated that at such flow of gas through this meter was in location, there is an existing Transco Williston Basin Interstate Pipeline March 1992, and the producer plugged meter which measures gas delivered by Company, Notice of Application and abandoned its well in August 1992. RAC to Transco. Transco states that it Any person or the Commission’s staff will also install, own and operate April 30, 1999. may, within 45 days after issuance of electronic flow measurement Take notice that on April 28, 1999, the instant notice by the Commission, equipment. Williston Basin Interstate Pipeline file pursuant to Rule 214 of the Transco further states that the new Company (Williston Basin), Post Office Commission’s Procedural Rules (18 CFR delivery point will enable RAC to Box 1560, Bismarck, North Dakota 385.214) a motion to intervene or notice receive up to 500 Mcf of gas per day 58506–5601, filed in Docket No. CP99– of intervention and pursuant to Section from Transco on an interruptible basis. 366–000, an application pursuant to 157.205 of the Regulations under the Such gas will be used by RAC for gas Section 7(b) of the Natural Gas Act Natural Gas Act (18 CFR 157.205) a lift purposes. It is stated that (NGA) for permission and approval to protest to the request. If no protest is transportation service will be rendered abandon a farm tap, which includes the filed within the time allowed therefor, to RAC through the new delivery point plugging of the tap and the removal of the proposed activity shall be deemed to pursuant to Transco’s Rate Schedule IT the meter and regulator, in Fallon
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County, Montana, all as more fully set DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY forth in the application on file with the Federal Energy Regulatory Commission Federal Energy Regulatory Federal Energy Regulatory (Commission) and open to public Commission Commission inspection. This filing may be viewed Notice of Application Accepted for on the web at http://www.ferc.fed.us/ [Docket Nos. CP97±315±000 et al; CP97± 319±000; CP98±200±000; CP98±540±000] Filing and Soliciting Motions To online/rims.htm (call 202–208–2222 for Intervene and Protests assistance). Independence Pipeline Company; ANR April 30, 1999. Any person desiring to be heard or to Pipeline Company; National Fuel Gas Take notice that the following make any protest with reference to said Supply Corporation; Transcontinental hydroelectric application has been filed application should on or before May 21, Gas Pipe Line Corporation; Notice of with the Commission and is available 1999, file with the Federal Energy Additional Public Meetings in New for public inspection: Regulatory Commission, Washington, Jersey on the Draft Environmental D.C. 20426, a motion to intervene or a a. Type of Application: Preliminary Impact Statement for the Proposed Permit. protest in accordance with the Independence Pipeline and Market b. Project No.: P–11684–000. requirements of the Commission’s Rules Link Expansion Projects c. Date Filed: February 19, 1999. of Practice and Procedure (18 CFR April 30, 1999. d. Applicant: Simplicity Hydro. 385.214 or 385.211) and the Regulations e. Name of Project: Taylorsville Lake under the NGA (18 CFR 157.10). All At the request of Congressmen Project. protests filed with the Commission will William Pascrell and Rodney f. Location: At the existing U.S. Army be considered by it in determining the Frelinghuysen of New Jersey, the staff of Corps of Engineers’ Taylorsville Dam on appropriate action to be taken but will the Federal Energy Regulatory the Salt River, near the Town of not serve to make the Protestants parties Commission (FERC or Commission) will Taylorsville, Spencer County, Kentucky. to the proceeding. Any person wishing hold two additional meetings to receive g. Filed Pursuant to: Federal Power to become a party to a proceeding or to oral comments on the Draft Act 16 U.S.C. §§ 791(a)–825(r). participate as a party in any hearing Environmental Impact Statement (DEIS) h. Applicant Contact: Mr. David therein must file a motion to intervene of the Independence Pipeline and Brown Kinloch, Soft Energy Associates, in accordance with the Commission’s Market Link Expansion Projects, as 414 S. Wenzel Street, Louisville, Rules. referenced in the above dockets. Kentucky 40204, (502) 589–0975. i. FERC Contact: Ed Lee (202) 219– Take further notice that, pursuant to The time and locations of the 2808 or E-mail address at the authority contained in and subject to meetings are listed below: [email protected]. the jurisdiction conferred upon the Nutley, New Jersey: May 24, 1999, 8:00 j. Deadline for filing motions to Federal Energy Regulatory Commission p.m. intervene and protest: 60 days from the by Sections 7 and 15 of the NGA and the Franklin Middle School, 325 Franklin issuance date of this notice. Commission’s Rules of Practice and All documents (original and eight Procedure, a hearing will be held Avenue, Nutley, New Jersey 07011, (973) 661–8871 copies) should be filed with: David P. without further notice before the Boergers, Secretary, Federal Energy Commission or its designee on this Chatham, New Jersey: May 25, 1999, Regulatory Commission, 888 First application if no motion to intervene is 7:00 p.m. Street, NE, Washington, DC 20426. filed within the time required herein, if The Commission’s Rules of Practice the Commission on its own review of Chatham Middle School, 480 Main and Procedure require all intervenors the matter finds that a grant of the Street, Chatham, New Jersey 07928, filing documents with the Commission certificate is required by the public (973) 635–7200 to serve a copy of that document on convenience and necessity. If a motion Interested groups and individuals are each person whose name appears on the for leave to intervene is timely filed, or encouraged to attend and present oral official service list for the project. if the Commission on its own motion comments on the DEIS. Transcripts of Further, if an intervenor files comments believes that a formal hearing is the meetings will be prepared. or documents with the Commission relating to the merits of an issue that required, further notice of such hearing Additional information about the may affect the responsibilities of a will be duly given. proposed projects is available from Paul particular resource agency, they must McKee in the Commission’s Office of Under the procedure herein provided also serve a copy of the document on External Affairs, at (202) 208–1088; or for, unless otherwise advised, it will be that resource agency. may be viewed on the web at http:// unnecessary for Williston Basin k. This application is not ready for www.ferc.fed.us/online/rims.htm (call Interstate Pipeline Company to appear environmental analysis at this time. 202–208–2222 for assistance). Access to or be represented at the hearing. l. Description of Project: The proposed texts of formal documents issued by the David P. Boergers, project would utilize the existing U.S. Commission with regards to these Army Corps of Engineers’ Taylorsville Secretary. dockets, such as orders and notices, is Dam and Reservoir, and would consist [FR Doc. 99–11350 Filed 5–5–99; 8:45 am] also available on the FERC website of the following facilities: (1) three new BILLING CODE 6717±01±M using the ‘‘CIPS’’ link. For assistance submersible generating units to be with access to CIPS, the CIPS Help line located in the existing intake tower for can be reached at (202) 208–2474. an installed capacity of 1.135 David P. Boergers, megawatts; (2) a new 12.5-kilovolt Secretary. transmission line; and (3) appurtenant [FR Doc. 99–11347 Filed 5–5–99; 8:45 am] facilities. The proposed average annual BILLING CODE 6717±01±M generation is estimated to be 6
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24388 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices gigawatthours. The cost of the studies application). A notice of intent must be agency’s comments must also be sent to under the permit will not exceed served on the applicant(s) named in this the Applicant’s representatives. $5,000. All project generation would be public notice. David P. Boergers, sold to a local utility. Proposed Scope of Studies under Secretary. m. A copy of the application is [FR Doc. 99–11351 Filed 5–5–99; 8:45 am] available for inspection and Permit—A preliminary permit, if issued, reproduction at the Commission’s does not authorize construction. The BILLING CODE 6717±01±M Public Reference ad Files Maintenance term of the proposed preliminary permit would be 36 months. The work Branch, located at 888 First Street, N.E., DEPARTMENT OF ENERGY Room 2–A, Washington, D.C. 20426, or proposed under the preliminary permit by calling (202) 208–1371. A copy is would include economic analysis, Federal Energy Regulatory also available for inspection and preparation of preliminary engineering Commission reproduction at Simplicity Hydro, David plans, and a study of environmental Brown Kinlock, 414 S. Wenzel Street, impacts. Based on the results of these Notice of Application Accepted for Louisville, Kentucky 40204, (502) 589– studies, the Applicant would decide Filing and Soliciting Comments, 0975. A copy of the application may whether to proceed with the preparation Motions To Intervene, and Protests also be viewed or printed by accessing of a development application to the Commission’s website on the construct and operate the project. April 30, 1999. Internet at http://www.ferc.fed.us/ Take notice that the following Comments, Protests, or Motions to online/rims.htm or call (202) 208–2222 hydroelectric application has been filed Intervene—Anyone may submit for assistance. with the Commission and is available n. Individuals desiring to be included comments, a protest, or a motion to for public inspection: on the Commission’s mailing list should intervene in accordance with the a. Type of Application: Preliminary so indicate by writing to the Secretary requirements of Rules of Practice and Permit. of the Commission. Procedure, 18 CFR 385.210, .211 and b. Project No.: 11722–000. Preliminary Permit—Anyone desiring .214. In determining the appropriate c. Date Filed: April 14, 1999. to file a competing application for action to take, the Commission will d. Applicant: Universal Electric preliminary permit for a proposed consider all protests or other comments Power Corporation. project must submit the competing filed, but only those who file a motion e. Name of Project: Salamonie Lake application itself, or a notice of intent to to intervene in accordance with the Dam Hydroelectric Project. file such an application, to the Commission’s Rules may become a f. Location: On the Salamonie River Commission on or before the specified party to the proceeding. Any comments, near the town of Wabash, in Wabash comment date for the particular protests, or motions to intervene must County, Indiana. The project would application (see 18 CFR 4.36). be received on or before the specified utilize the U.S. Army Corps of Engineers Submission of a timely notice of intent comment date for the particular Salamonie Lake Dam and reservoir. allows an interested person to file the application. g. Filed Pursuant to: Federal Power competing preliminary permit Act, 16 USC §§ 791(a)–824(r). application no later than 30 days after Filing and Service of Responsive h. Applicant Contact: Ronald S. the specified comment date for the Documents—Any filing must bear in all Feltenberger, Universal Electric Power particular application. A competing capital letters the title ‘‘COMMENTS’’, Corporation, 1145 Highbrook Street, preliminary permit application must ‘‘NOTICE OF INTENT TO FILE Akron, Ohio 44301, (330) 535–7115. conform with 18 CFR 4.32 (a) and (b)(1). COMPETING APPLICATION’’, i. FERC Contact: Tom Dean, Preliminary Permit—Any qualified ‘‘COMPETING APPLICATION’’, [email protected], 202–219– development applicant desiring to file a ‘‘PROTEST’’, ‘‘MOTION TO 2778. competing development application INTERVENE’’, as applicable, and the j. Deadline for filing comments, must submit to the Commission, on or Project Number of the particular motions to intervene, and protests: 60 before a specified comment date for the application to which the filing refers. days from the issuance date of this particular application, either a Any of the above-named documents notice. competing development application or a must be filed by providing the original All documents (original and eight notice of intent to file such an and the number of copies provided by copies) should be filed with: David P. application (see 18 CFR 4.36). the Commission’s regulations to: The Boergers, Secretary, Federal Energy Submission of a timely notice of intent Secretary and an additional copy must Regulatory Commission, 888 First to file a development application allows be sent to Director, Division of Project Street, NE, Washington, DC 20426. an interested person to file the Review, at the above-mentioned The Commission’s Rules of Practice competing application no later than 120 address. A copy of any notice of intent, and Procedures require all intervenors days after the specified comment date competing application or motion to filing documents with the Commission for the particular application. A intervene must also be served upon each to serve a copy of the document on each competing license application must representative of the Applicant person on the official service list for the conform with 18 CFR 4.32 (a), (b), and specified in the particular application. project. Further, if an intervenor files (c). comments or documents with the Notice of intent—A notice of intent Agency Comments—Federal, state, Commission relating to the merits of an must specify the exact name, business and local agencies are invited to file issue that affect the responsibilities of a address, and telephone number of the comments on the described application. particular resource agency, they must prospective applicant, and must include A copy of the application may be also serve a copy of the document on an unequivocal statement of intent to obtained by agencies directly from the that resource agency. submit, if such an application may be Applicant. If an agency does not file k. The project would be located at the filed, either a preliminary permit comments within the time specified for existing U.S. Army Corps of Engineers application or a development filing comments, it will be presumed to Salamonie Lake Dam and would consist application (specify which type of have no comments. One copy of an of the following proposed facilities: (1)
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Two 50-foot-long, 84-inch-diameter served on the applicant(s) named in this agency’s comments must also be sent to penstocks; (2) a powerhouse on the public notice. the Applicant’s representatives. downstream side of the dam housing Proposed Scope of Studies under David P. Boergers, two turbine generating units with a total Permit—A preliminary permit, if issued, Secretary. installed capacity of 2.0 MW; (3) a 5- does not authorize construction. The [FR Doc. 99–11352 Filed 5–5–99; 8:45 am] mile-long, 14.7 kV transmission line; term of the proposed preliminary permit BILLING CODE 6717±01±M and (4) other appurtenances. would be 36 months. The work Applicant estimates that the average proposed under the preliminary permit annual generation would be 12,500 DEPARTMENT OF ENERGY MWh and that the cost of the studies would include economic analysis, under the permit would be $800,000. preparation of preliminary engineering Federal Energy Regulatory l. A copy of the application is plans, and a study of environmental Commission available for inspection and impact. Based on the results of these reproduction at the Commission’s studies, the applicant would decide Notice of Application Accepted for Public Reference Room, located at 888 whether to proceed with the preparation Filing and Soliciting Comments, First Street, NE, Room 2A, Washington, of a development application to Motions to Intervene, and Protests construct and operate the project. D.C. 20426, or by calling (202) 208– April 30, 1999. 1371. This filing may be viewed on the Comments, Protests, or Motions to Take notice that the following web at http://www.ferc.fed.us/online/ Intervene—Anyone may submit hydroelectric application has been filed rims.htm (call 202–208–2222 for comments, a protest, or a motion to with the Commission and is available assistance). A copy is also available for intervene in accordance with the for public inspection: inspection and reproduction at the requirements of Rules of Practice and a. Type of Application: Preliminary address in item h above. Procedure, 18 CFR 385.210, .211 and Permit Preliminary Permit—Anyone desiring .214. In determining the appropriate b. Project No.: 11723–000 to file a competing application for action to take, the Commission will c. Date Filed: April 14, 1999 preliminary permit for a proposed consider all protests or other comments d. Applicant: Universal Electric project must submit the competing filed, but only those who file a motion Power Corporation application itself, or a notice of intent to to intervene in accordance with the e. Name of Project: Cagles Mill Lake file such an application, to the Commission’s Rules may become a Dam Hydroelectric Project Commission on or before the specified party to the proceeding. Any comments, f. Location: On the Mill Creek near the comment date for the particular town of Bowling Green, in Putnam application (see 18 CFR 4.36). protests, or motions to intervene must be received on or before the specified County, Indiana. The project would Submission of a timely notice of intent utilize the U.S. Army Corps of Engineers comment date for the particular allows an interested person to file the Cagels Mill Lake Dam and reservoir. application. competing preliminary permit g. Field Pursuant to: Federal Power application no later than 30 days after Filing and Service of Responsive Act, 16 USC §§ 791(a)–825(r). the specified comment date for the Documents—Any filings must bear in h. Applicant Contact: Ronald S. particular application. A competing all capital letters the title Feltenberger, Universal Electric Power preliminary permit application must ‘‘COMMENTS’’, NOTICE OF INTENT Corporation, 1145 Highbrook Street, conform with 18 CFR 4.32(a) and (b)(1). TO FILE COMPETING APPLICATION’’, Akron, Ohio 44301, (330) 535–7115. Preliminary Permit—Any qualified ‘‘COMPETING APPLICATION’’ i. FERC Contact: Tom Dean, development applicant desiring to file a ‘‘PROTEST’’, ‘‘MOTION TO [email protected], 202–219– competing development application INTERVENE’’, as applicable, and the 2778. must submit to the Commission, on or Project Number of the particular j. Deadline for filing comments, before a specified comment date for the application to which the filing refers. motions to intervene, and protests: 60 particular application, either a Any of the above-named documents days from the issuance date of this competing development application or a must be filed by providing the original notice. notice of intent to file such an and the number of copies provided by All documents (original and eight application (see 18 CFR 4.36). the Commission’s regulations to: The copies) should be filed with: David P. Submission of a timely notice of intent Boergers, Secretary, Federal Energy Secretary and an additional copy must to file a development application allows Regulatory Commission, 888 First be sent to Director, Division of Project an interested person to file the Street, NE, Washington, DC 20426. competing application no later than 120 Review, at the above-mentioned The Commission’s Rules of Practice days after the specified comment date address. A copy of any notice of intent, and Procedures require all intervenors for the particular application. A competing application or motion to filing documents with the Commission competing license application must intervene must also be served upon each to serve a copy of the document on each conform with 18 CFR 4.32(a), (b), and representative of the Applicant person on the official service list for the (c). specified in the particular application. project. Further, if an intervenor files Notice of intent—A notice of intent Agency Comments—Federal, state, comments or documents with the must specify the exact name, business and local agencies are invited to file Commission relating to the merits of an address, and telephone number of the comments on the described application. issue that affect the responsibilities of a prospective applicant, and must include A copy of the application may be particular resource agency, they must an unequivocal statement of intent to obtained by agencies directly from the also serve a copy of the document on submit, if such an application may be Applicant. If an agency does not file that resource agency. filed, either a preliminary permit comments within the time specified for k. The project would be located at the application or a development filing comments, it will be presumed to existing U.S. Army Corps of Engineers application (specify which type of have no comments. One copy of an Cagles Mill Lake Dam and would application). A notice of intent must be consist of the following proposed
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24390 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices facilities: (1) a 50-foot-long, 62-in- served on the applicant(s) named in this agency’s comments must also be sent to diameter penstock; (2) a powerhouse on public notice. the Applicant’s representatives. the downstream side of the dam housing Proposed Scope of Studies under David P. Boergers, a single turbine generating unit with an Permit—A preliminary permit, if issued, Secretary. installed capacity of 938 kW; (3) a 600- does not authorize construction. The [FR Doc. 99–11353 Filed 5–5–99; 8:45 am] foot-long, 14.7 kV transmission line; and term of the proposed preliminary permit BILLING CODE 6717±01±M (4) other appurtenances. would be 36 months. The work Applicant estimates that the average proposed under the preliminary permit annual generation would be 5,800 MWh DEPARTMENT OF ENERGY and that the cost of the studies under would include economic analysis, the permit would be $500,000. preparation of preliminary engineering Federal Energy Regulatory l. A copy of the application is plans, and a study of environmental Commission available for inspection and impacts. Based on the results of these reproduction at the Commission’s studies, the Applicant would decide Notice of Application Accepted for Public Reference Room, located at 888 whether to proceed with the preparation Filing and Soliciting Comments, First Street, NE, Room 2A, Washington, of a development application to Motions To Intervene, and Protests construct and operate the project. D.C. 20426, or by calling (202) 208– April 30, 1999. 1371. This filing may be viewed on the Comments, Protests, or Motions to Take notice that the following web at http://www.ferc.fed.us/online/ Intervene—Anyone may submit hydroelectric application has been filed rims.htm (call 202–208–2222 for comments, a protest, or a motion to with the Commission and is available assistance). A copy is also available for intervene in accordance with the for public inspection: inspection and reproduction at the requirements of Rules of Practice and a. Type of Application: Preliminary address in item h above. Procedure, 18 CFR 385.210, .211 and Permit. Preliminary Permit—Anyone desiring .214. In determining the appropriate b. Project No.: 11725–000. to file a competing application for action to take, the Commission will c. Date Filed: April 14, 1999. preliminary permit for a proposed consider all protests or other comments d. Applicant: Universal Electric project must submit the competing field, but only those who file a motion Power Corporation. application itself, or a notice of intent to to intervene in accordance with the e. Name of Project: Aberdeen Lock file such an application, to the Commission’s Rules may become a and Dam Hydroelectric Project. Commission on or before the specified party to the proceeding. Any comments, f. Location: On the Tombigbee River comment date for the particular near the town of Aberdeen, in Monroe application (see 18 CFR 4.36). protests, or motions to intervene must be received on or before the specified County, Mississippi. The project would Submission of a timely notice of intent utilize the U.S. Army Corps of Engineers comment date for the particular allows an interested person to file the Aberdeen Lock and Dam and reservoir. application. competing preliminary permit g. Filed Pursuant to: Federal Power application no later than 30 days after Filing and Service of Responsive Act, 16 U.S.C. §§ 791(a)—825(r). the specified comment date for the Documents—Any filings must bear in h. Applicant Contact: Ronald S. particular application. A competing all capital letters the title Feltenberger, Universal Electric Power preliminary permit application must ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT Corporation, 1145 Highbrook Street, conform with 18 CFR 4.32(a) and (b)(1). TO FILE COMPETING APPLICATION’’, Akron, Ohio 44301, (330) 535–7115. Preliminary Permit—Any qualified ‘‘COMPETING APPLICATION’’, i. FERC Contact: Tom Dean, development application desiring to file ‘‘PROTESTS’’, ‘‘MOTION TO [email protected], 202–219– a competing development application INTERVENE’’, as applicable, and the 2778. must submit to the Commission, on or Project Number of the particular j. Deadline for filing comments, before a specified comment date for the application to which the filing refers. motions to intervene, and protests: 60 particular application, either a Any of the above-named documents days from the issuance date of this competing development application or a must be filed by providing the original notice. notice of intent to file such an and the number of copies provided by All documents (original and eight application (see 18 CFR 4.36). the Commission’s regulations to: The copies) should be filed with: David P. Submission of a timely notice of intent Boergers, Secretary, Federal Energy Secretary and an additional copy must to file a development application allows Regulatory Commission, 888 First be sent to Director, Division of Project an interested person to file the Street, NE, Washington, DC 20426. competing application no later than 120 Review, at the above-mentioned The Commission’s Rules of Practice days after the specified comment date address. A copy of any notice of intent, and Procedure require all intervenors for the particular application. A competing application or motion to filing documents with the Commission competing license application must intervene must also be served upon each to serve a copy of the document on each conform with 18 CFR 4.32(a), (b), and representative of the Applicant person on the official service list for the (c). specified in the particular application. project. Further, if an intervenor files Notice of intent—A notice of intent Agency Comments—Federal, state, comments or documents with the must specify the exact name, business and local agencies are invited to file Commission relating to the merits of an address, and telephone number of the comments on the described application. issue that affect the responsibilities of a prospective applicant, and must include A copy of the application may be particular resource agency, they must an unequivocal statement of intent to obtained by agencies directly from the also serve a copy of the document on submit, if such an application may be Applicant. If an agency does not file that resource agency. filed, either a preliminary permit comments within the time specified for k. The project would be located at the application or a development filing comments, it will be presumed to existing U.S. Army Corps of Engineers application (specify which type of have no comments. One copy of an Aberdeen Lock and Dam and would application). A notice of intent must be consist of the following proposed
VerDate 26-APR-99 18:59 May 05, 1999 Jkt 183247 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24391 facilities: (1) two 80-foot-long, 72-inch- served on the applicant(s) named in this agency’s comments must also be sent to diameter penstocks; (2) a powerhouse public notice. the Applicant’s representatives. on the downstream side of the dam Proposed Scope of Studies under David P. Boergers, housing two turbine generating units Permit—A preliminary permit, if issued, Secretary. with a total installed capacity of 2.7 does not authorize construction. The [FR Doc. 99–11354 Filed 5–5–99; 8:45 am] MW; (3) a 700-foot-long, 14.7 kV term of the proposed preliminary permit BILLING CODE 6717±01±M transmission line; and (4) other appurtenances. would be 36 months. The work proposed under the preliminary permit Applicant estimates that the average DEPARTMENT OF ENERGY annual generation would be 17,000 would include economic analysis, MWh and that the cost of the studies preparation of preliminary engineering Federal Energy Regulatory under the permit would be $1,000,000. plans, and a study of environmental Commission 1. A copy of the application is impacts. Based on the results of these available for inspection and studies, the Applicant would decide Notice of Application Tendered for reproduction at the Commission’s whether to proceed with the preparation Filing With the Commission and Public Reference Room, located at 888 of a development application to Soliciting Additional Study Requests First Street, NE, Room 2A, Washington, construct and operate the project. D.C. 20426, or by calling (202) 208– April 30, 1999. Comments, Protests, or Motions to 1371. This filing may be viewed on the Take notice that the following web at http://www.ferc.fed.us/online/ Intervene—Anyone may submit hydroelectric application has been filed rims.htm (call 202–208–2222 for comments, a protest, or a motion to with the Commission and is available assistance). A copy is also available for intervene in accordance with the for public inspection: inspection and reproduction at the requirements of Rules of Practice and a. Type of Application: Minor address in item h above. Procedure, 18 CFR 385.210, .211 and License. Preliminary Permit—Anyone desiring .214. In determining the appropriate b. Project No.: P–11727–000. to file a competing application for action to take, the Commission will c. Date Filed.: April 6, 1999. preliminary permit for a proposed consider all protests or other comments d. Applicant: City of Granite Falls, project must submit the competing filed, but only those who file a motion Minnesota. application itself, or a notice of intent to to intervene in accordance with the e. Name of Project: Minnesota Falls file such an application, to the Commission’s Rules may become a Hydro Project. Commission on or before the specified party to the proceeding. Any comments, f. Location: On the Minnesota River in comment date for the particular protests, or motions to intervene must Chippewa and Yellow Medicine application (see 18 CFR 4.36). be received on or before the specified Counties, near Granite Falls, Minnesota. Submission of a timely notice of intent comment date for the particular g. Filed Pursuant to: Federal Power Act 16 U.S.C. §§ 791(a)–825(r). allows an interested person to file the application. competing preliminary permit h. Applicant Contact: William P. application no later than 30 days after Filing and Service of Representative Levin, City Manager, City of Granite the specified comment date for the Documents—Any filings must bear in Falls, 885 Prentice Street, Granite Falls, particular application. A competing all capital letters the title MN 56241–1598, (320) 564–3011. preliminary permit application must ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT i. FERC Contact: Ed Lee (202) 219– conform with 18 CFR 4.32(a) and (b)(1). TO FILE COMPETING APPLICATION’’, 2809 or E-mail address at Preliminary Permit—Any qualified ‘‘COMPETING APPLICATION’’ Ed. [email protected] development applicant desiring to file a ‘‘PROTEST’’, ‘‘MOTION TO j. Deadline for filing additional study competing development application INTERVENE’’, as applicable, and the requests: 60 days from the issuance date must submit to the Commission, on or Project Number of the particular of this notice. before a specified comment date for the application to which the filing refers. All documents (original and eight particular application, either a Any of the above-named documents copies) should be filed with: David P. competing development application or a must be filed by providing the original Boergers, Secretary, Federal Energy notice of intent to file such an and the number of copies provided by Regulatory Commission, 888 First application (see 18 CFR 4.36). the Commission’s regulations to: The Street, NE, Washington, DC 20426. The Commission’s Rules of Practice Submission of a timely notice of intent Secretary and an additional copy must to file a development application allows and Procedure require all intervenors be sent to Director, Division of Project an interested person to file the filing documents with the Commission Review, at the above-mentioned competing application no later than 120 to serve a copy of that document on days after the specified comment date address. A copy of any notice of intent, each person whose name appears on the for the particular application. A competing application or motion to official service list for the project. competing license application must intervene must also be served upon each Further, if an intervenor files comments conform with 18 CFR 4.32(a), (b), and representative of the Applicant or documents with the Commission (c). specified in the particular application. relating to the merits of an issue that Notice of intent—A notice of intent Agency Comments—Federal, state, may affect the responsibilities of a must specify the exact name, business and local agencies are invited to file particular resource agency, they must address, and telephone number of the comments on the described application. also serve a copy of the document on prospective applicant, and must include A copy of the application may be that resource agency. an unequivocal statement of intent to obtained by agencies directly from the k. This application is not ready for submit, if such an application may be Applicant. If an agency does not file environmental analysis at this time. filed, either a preliminary permit comments within the time specified for l. Description of Project: The proposed application or a development filing comments, it will be presumed to run-of-river Minnesota Falls Project application (specify which type of have no comments. One copy of an consists of: (1) an 18-foot-high and 500- application). A notice of intent must be foot-long embankment and
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24392 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices gravity dam; (2) a 150-acre reservoir at FOR FURTHER INFORMATION CONTACT: EPA contacts as listed below. Collaborative normal pool elevation of 883.9 feet msl; Headquarters or Regional contacts listed submissions are also encouraged. (3) a conduit intake structure; (4) a in the SUPPLEMENTARY INFORMATION. Project submissions must be made in powerhouse housing two 580-kW SUPPLEMENTARY INFORMATION: accordance with the criteria contained generating units for an installed in this notice. capacity of 1,160 kW; (5) a proposed Background Nation-wide Support substation; and (6) appurtenant In keeping with the objectives of the facilities. The applicant estimates that Safe Drinking Water Act, EPA is An additional $375,000 is available the total average annual generation soliciting partners through a from EPA Headquarters for projects that would be 3,300 MWh. All generated competitive solicitation to assist Agency are targeted to similar objectives but power is utilized within the applicant’s efforts to protect the drinking water focus on activities that are either electric utility system. sources (both ground water and surface national, multi-State or multi-Region in m. A copy of the application is water sources) of small, rural or scope. These proposals are to be available for inspection and economically disadvantaged submitted to the EPA Headquarters reproduction at the Commission’s communities in priority watersheds. contact listed below. National projects Public Reference Room, located at 888 Priority watersheds are those river should be budgeted at no less than First Street, NE, Room 2A, Washington, basins and water bodies identified by $50,000 and no more than $100,000. D.C. 20426, or by calling (202) 208– the States in their Unified Watershed 1371. The application may be viewed on Assessments, developed under the Funding Eligibility http://www.ferc.fed.us/online/rims.htm Clean Water Action Plan. State, local and Tribal governments, (call (202) 208–2222 for assistance). A Proposals under this solicitation may not-for-profit community water systems copy is also available for inspection and support source water assessment and that meet the definition of a public reproduction at the address in item h protection activities at the community water supply (40 CFR 142.2), and not- above. level as well as activities related to for-profit organizations that have n. With this notice, we are initiating stormwater, non-point source or wet demonstrated a field-based capacity to consultation with the MINNESOTA weather related management activities, provide technical assistance on drinking STATE HISTORIC PRESERVATION that: assist in the integration of ground water and source water protection OFFICER (SHPO), as required by § 106, water concerns into watershed issues to small, rural or economically National Historic Preservation Act, and assessment and restoration plans; disadvantaged communities are eligible the regulations of the Advisory Council support the implementation of local to compete for these funds. While on Historic Preservation, 36 CFR at wellhead protection programs; and /or, preference may be given to projects § 800.4. provide technical support to located in priority watersheds, projects o. Individuals desiring to be included communities considering new ground or outside of those watershed areas will be on the Commission’s mailing list should surface water protection or contaminant eligible for funding consideration, so indicate by writing to the Secretary source management plans or ordinances especially if they have a creative of the Commission. targeted at high risk watersheds. All approach to implementing the David P. Boergers, project proposals must address one or objectives previously outlined. Secretary. more of these activities to support Evaluation Criteria [FR Doc. 99–11355 Filed 5–5–99; 8:45 am] ground water and source water BILLING CODE 6717±01±M protection efforts of small communities, In keeping with the aforementioned economically disadvantaged objectives of this solicitation, the communities, and/or rural areas in following other criteria will be used in ENVIRONMENTAL PROTECTION priority watersheds. These projects must the evaluation of all proposals AGENCY also serve as useful prototypes with submitted by offerors in response to this results that can be transferred to other proposal. [FRL±6336±7] community-based drinking water • Well written and organized protection efforts. Priority consideration presentation. 5 points Notice of Availability of Funds for will be given to proposals that directly • Source Water Protection involve and demonstrate community Project objectives, deliverables/ milestones, and measures of success are AGENCY: Environmental Protection level implementation actions or viable and clearly stated. 15 points Agency. activities that clearly lead to such • Project clearly identifies the need ACTION: Notice. results. for the activity and the expected Available Funding SUMMARY: The Environmental Protection environmental and public health Agency (EPA) is soliciting proposals to Regional Support benefits that are readily transferable to other communities. 30 points fund projects that support local ground A total of $1,625,000 is available from • water and source water protection EPA to fund one or more projects in Project uses the collaboration of efforts for small, rural or economically each EPA Region according to the relevant partners (multi-organization/ disadvantaged communities in priority Region-by-Region allocation formula community focused) to achieve the watersheds. shown below. Individual project project goals. 25 points DATES: All project proposals must be proposals may be budgeted at no less • Project builds the capacity of local received by the respective EPA Regional than $10,000, and no more than any communities and organizations to or Headquarters office no later than June specific Region’s allocation. Each protect public health through drinking 7, 1999. Region will determine how many water protection by identifying needed ADDRESSES: Project proposals should be projects to fund and at what level to institutional arrangements and sent to the appropriate address listed fund them. Those interested in applying management responsibilities to carry below based on the location of the for funding should submit their out project objectives. 25 points project: proposal to the appropriate Regional Total: 100 points
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Project Proposal Due Date Headquarters office no later than 30 appropriate address listed below based All project proposals must be received days from May 6, 1999. Project on the location of the project: by the respective EPA Regional or proposals should be sent to the
EPA office Contact and address States Allocation
Region 1 ...... Mary Jo Feuerbach, U.S. EPA, Region I, Suite 1100, CT, ME, MA, NH, RI, VT ...... $117,813 One Congress Street (CMA), Boston, MA 02203±0001, 617±918±1578. Region 2 ...... Benita Best-Wong, U.S. EPA, Region 2, 290 Broadway, NJ, NY, PR, VI ...... 134,063 New York, NY 10007±1866, 212±637±3852. Region 3 ...... Dale Long, U.S. EPA, Region 3, 1650 Arch Street, Phila- DE, DC, MD, PA, VA, WV ...... 146,251 delphia, PA 19103, 215±814±5779. Region 4 ...... Stallings Howell, U.S. EPA, Region 4, 61 Forsyth Street, AL, FL, GA, KY, MS, NC, SC, TN .. 243,749 SW, Atlanta GA 30303, 404±562±9329. Region 5 ...... Thomas Poy, U.S. EPA, Region 5, 77 W. Jackson Boule- IL, IN, MI, MN, OH, WI ...... 211,250 vard, Chicago, IL 60604±3507, 312±886±5991. Region 6 ...... Ken Williams, U.S. EPA, Region 6, 1445 Ross Avenue, AR, LA, NM, OK, TX ...... 215,310 Dallas, TX 75202±2733, 214±665±7129. Region 7 ...... Stephanie Lindberg, U.S. EPA, Region 7, 726 Minnesota IA, KS, MO, NE ...... 146,250 Avenue, Kansas City, KS 66101, 913±551±7423. Region 8 ...... Marcella Hutchinson, U.S. EPA, Region 8, 999 18th CO, MT, ND, SD, UT, WY ...... 121,875 Street, Suite 500, Denver, CO 80202±2466, 303±312± 6753. Region 9 ...... Judy Bloom, U.S. EPA, Region 9, 75 Hawthorne Street AZ, CA, HI, NV ...... 150,313 San Francisco, CA 94105, 415±744±1829. Region 10 ...... Jeff Kenknight, U.S. EPA, Region 10, 1200 Sixth Ave- AK, ID, OR, WA ...... 138,126 nue, Seattle, WA 98101, 206±553±0226. Headquarters ...... Evyonne Harris, U.S. EPA (4606), 401 M Street, SW, National, Multi-State or Multi-Re- 375,000 Washington, DC 20460, 202±260±1399. gion.
Description of Project Proposals proposal addresses and supports one or Budget Narrative more of the following program Proposals should be succinct and to Each proposal must include a budget the point. Proposals should not exceed objectives: • summary that identifies cost associated 3–5 pages in total length. The 3–5 pages Source water assessment and with each activity. Cost estimates should include background, a protection activities at the local level, should include the following object description of proposed project and the especially in rural areas; class categories: environmental need to be addressed, • Integration of ground water ✔ Personnel financial information on the costs of the concerns into watershed assessment and ✔ project, a schedule of activities and restoration plans; Fringe ✔ milestones, supporting documentation, • Implementation of wellhead Travel and (any available) letters of support. protection programs locally; and/or ✔ Supplies Proposals should clearly address the • ✔ substantive evaluation criteria, in Providing the assistance of field Indirect Charges technicians supporting communities particular, the expected health and Schedule of Activities environmental benefits and the considering new ground water/source transferability of the project effort. Other water ordinances targeted at high-risk This schedule for the review and materials, multimedia or otherwise, will watersheds. award portion of this process is not be accepted or evaluated during the In addition, the narrative should provided only as an example. Each competition. Applicants whose briefly describe how the project Region may establish timelines that vary proposals are selected for funding will proposal addresses the following beyond the initial submission date, 30 be required to submit the ‘‘Application factors: days from the date of this document. for Federal Assistance’’ (SF 424). The • Ability of project to support the • Day 30: proposals due after paperwork burden for this form is overall advancement of ground water publication of Federal Register notice. approved under EPA’s Information and source water protection efforts; • Day 60: complete 30 day review of Collection request #938.06, OMB • Innovation and transferability of proposals by either EPA Headquarters or Control Number 2030–0020. Do not project outcomes to multiple state, Region. submit the SF 424 with this proposal Tribal, or local source water protection application. Projects that receive • Day 70: applicant notified of initiatives; and, funding will have specific conditions on Agency determination on project. • reporting progress. Past experience, if any, that • Day 85: selected applicants prepare demonstrates an ability to manage and submit SF 424. Project Narrative complex projects. • Day 90: applications forwarded to Proposed project text should include Project Activities the respective grants offices. a general overview summarizing • planned project activities in accordance A description of planned project Day 120: grants processing with the specifications for project activities including a definition of the completed/Congressional notifications. descriptions. The project narrative project’s time span, lists of deliverables • Day 125: awards package mailed to should briefly describe how the project and milestones. grantee.
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Dated: April 30, 1999. Title: New Zealand/United States Synopsis: Under the proposed Elizabeth Fellows, Container Lines Association. Agreement Crowley will provide Acting Director, Office of Ground Water and Parties: P&O Nedlloyd Limited, transshipment services to MLL for MLL Drinking Water. Columbus Line, Australia-New Zealand cargo in the trade between United States [FR Doc. 99–11387 Filed 5–5–99; 8:45 am] Direct Line. Gulf and Pacific Coast ports and ports BILLING CODE: 6560±50±P Synopsis: The proposed modification in Colombia, Ecuador, Peru, and Chile would revise the agreement’s via transshipment ports in Venezuela, independent action and service contract Colombia, and Panama. FEDERAL ELECTION COMMISSION provisions consistent with the Agreement No.: 217–011662. requirements of the Ocean Shipping Title: CMA/Great Western Space Sunshine Act Meeting Reform Act of 1998. The parties have Charter Agreement. requested expedited review. Parties: Compagnie Maritime DATE AND TIME: Tuesday, May 11, 1999 Agreement No.: 202–011526–002. d’Affretement, S.A. (‘‘CMA’’), Great at 10 a.m. Title: Mitsui O.S.K. Lines Ltd/Hoegh- Western Steamship Co. (‘‘Great PLACE: 999 E Street, NW., Washington, Ugland Auto Liners A/S Space Charter Western’’). DC. Agreement. Synopsis: The proposed Agreement STATUS: This Meeting will be closed to Parties: Hoegh-Ugland Auto Liners A/ would permit CMA to charter space to the Public. S Mitsui O.S.K. Lines, Ltd. Great Western in the trade between ITEMS TO BE DISCUSSED: Compliance Synopsis: The proposed Amendment United States West Coast ports, and matters pursuant to 2 U.S.C. § 437g. modifies Article 4 of the Agreement to inland points via such ports, and ports Audits conducted pursuant to 2 U.S.C. include trade to the Dominican and points in the Far East. The parties § 437g, § 438(b), and Title 26, U.S.C. Republic. The parties request expedited have requested a shortened review Matters concerning participation in civil review. period. actions or proceedings or arbitration. Agreement No.: 203–011547–006. By Order of the Federal Maritime Internal personnel rules and procedures Title: Israel Discussion Agreement. Commission. or matters affecting a particular Parties: China Ocean Shipping Dated: May 3, 1999. employee. (Group) Company, Farrell Lines Bryant L. VanBrakle, DATE AND TIME: Thursday, May 13, 1999 Incorporated, Zim Israel Navigation Co., Secretary. at 10;00 a.m. Ltd., Israel Trade Conference. [FR Doc. 99–11401 Filed 5–5–99; 8:45 am] Synopsis: The proposed Amendment PLACE: 999 E Street, NW., Washington, BILLING CODE 6730±01±M DC (Ninth Floor). revises Article 5 of the Agreement to authorize joint contracting; discussion STATUS: This meeting Will be Open to of terms, information and other data the Public. FEDERAL MARITIME COMMISSION concerning individual service contracts, ITEMS TO DISCUSSED: Correction and as well as the discussion and Ocean Freight Forwarder License Approval of Minutes. Advisory Opinion implementation of voluntary guidelines Applicants 1999–10: Nationwide Political relating to individual service contracts. Notice is hereby given that the Participation Committee by counsel, The Article is further amended to following applicants have filed with the Andrew B. Clubok. Administrative authorize ad hoc space chartering Federal Maritime Commission Matters. authority among the parties. In addition, applications for licenses as ocean freight PERSON TO CONTACT FOR INFORMATION: technical and conforming changes are forwarders pursuant to section 19 of the Mr. Ron Harris, Press Officer, made to Articles 7 and 9 of the Shipping Act of 1984 (46 U.S.C. app. Telephone: (202) 694–1220. Agreement. 1718 and 46 CFR 510). Marjorie W. Emmons, Agreement No.: 202–011572–004. Persons knowing of any reason why Secretary of the Commission. Title: Colombia Independent Carrier any of the following applicants should [FR Doc. 99–11491 Filed 5–4–99; 11:21 am] Agreement. not receive a license are requested to Parties: Frontier Liner Services, King BILLING CODE 6715±01±M contact the Office of Freight Forwarders, Ocean de Colombia, Seaboard Marine, Federal Maritime Commission, LTd. Washington, DC 20573. International Synopsis: The proposed Amendment: FEDERAL MARITIME COMMSSION Commodity Express Co. d/b/a I.C.E., (1) revises Articles 5.3, 13, 14, and 18 2090 Commerce Drive, Medford, OR Notice of Agreement(s) Filed of the Agreement to bring the 97504, Officer: Henry Dewey Wilson, III, Agreement into conformity with the President (Qualifying Individual). The Commission hereby gives notice Ocean Shipping Reform Act and of the filing of the following Commission’s regulations, (2) clarifies Dated: May 3, 1999. agreement(s) under the Shipping Act of the space charter authority under Bryant L. VanBrakle, 1984. Article 5.5, and (3) specifies the voting Secretary. Interested parties can review or obtain procedure by which Members of the [FR Doc. 99–11399 Filed 4–5–99; 8:45 am] copies of agreements at the Washington, Agreement may open and close rates. BILLING CODE 6730±01±M DC offices of the Commission, 800 The members request expedited review. North Capitol Street, N.W., Room 962. Agreement No.: 218–011661. Interested parties may submit comments Title: Crowley/MLL Transshipment FEDERAL MARITIME COMMISSION on an agreement to the Secretary, Agreement. Federal Maritime Commission, Ocean Freight Forwarder License Parties: Crowley American Transport, Applicants Washington, DC 20573, within 10 days Inc. (‘‘Crowley’’), Mexican Lines of the date this notice appears in the Limited (‘‘MLL’’), Transportacion Notice is hereby given that the Federal Register. Maritima Grancolombiana S.A. following applicants have filed with the Agreement No.: 202–009831–019. (‘‘MLL’’). Federal Maritime Commission
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24395 applications for licenses as ocean freight Manufacturers Bank of Florida, Tampa, Marietta Street, N.W., Atlanta, Georgia forwarders pursuant to section 19 of the Florida. 30303-2713: Shipping Act of 1984 (46 U.S.C. app. B. Federal Reserve Bank of Kansas 1. Manufacturers Bancshares, Inc., 1718 and 46 CFR 510). City (D. Michael Manies, Assistant Vice Tampa, Florida; to become a bank Persons knowing of any reason why President) 925 Grand Avenue, Kansas holding company by acquiring 100 any of the following applicants should City, Missouri 64198-0001: percent of the voting shares of not receive a license are requested to 1. Edward J. Snyder, Cedar Vale, Manufacturers Bank of Florida. contact the Office of Freight Forwarders, Kansas and Caroline S. Blakeslee, Boise, B. Federal Reserve Bank of St. Louis Federal Maritime Commission, Idaho, as Co-Trustees of the M.F. Jarvis (Randall C. Sumner, Vice President) 411 Washington, DC 20573. S.A.T. Sea & Air Trust, to acquire voting shares of Locust Street, St. Louis, Missouri 63102- Transport Inc., 1200 South 192nd Street, Cornerstone Alliance, Ltd., Winfield, 2034: Suite 200, Seattle, WA 98148, Officers: Kansas; and thereby indirectly acquire 1. Delta Bancshares of Louisiana, Inc., Peter J. Beckett, President, George M. voting shares of First National Bank of Oak Grove, Louisiana; to become a bank Goodwin, Secretary/Treasurer. Winfield, Winfield, Kansas, and holding company by acquiring 100 percent of the voting shares of West Dated: May 3, 1999. Cornerstone Credit Company, Winfield, Kansas. Carroll Community Bank, Oak Grove, Bryant L. VanBrakle, Louisiana (in organization). Secretary. Board of Governors of the Federal Reserve In connection with this application, [FR Doc. 99–11400 Filed 5–5–99; 8:45 am] System, April 30, 1999. Applicant also has applied to merge BILLING CODE 6730±01±M Robert deV. Frierson, with Delta Bancshares, Inc., Eudora, Associate Secretary of the Board. Arkansas, and thereby indirectly acquire [FR Doc. 99–11313 Filed 5–5–99; 8:45 am] The Eudora Bank, Eudora, Arkansas. FEDERAL RESERVE SYSTEM BILLING CODE 6210±01±F 2. Central Bancompany, Inc., Jefferson City, Missouri; to acquire 100 percent of Change in Bank Control Notices; the voting shares of Mid-Continent Acquisitions of Shares of Banks or FEDERAL RESERVE SYSTEM Bancshares, Inc., and thereby indirectly Bank Holding Companies acquire Bank of Jacomo, Blue Springs, Formations of, Acquisitions by, and Missouri. The notificants listed below have Mergers of Bank Holding Companies 3. First Premier Financial applied under the Change in Bank The companies listed in this notice Corporation, St. Louis, Missouri; to Control Act (12 U.S.C. 1817(j)) and § become a bank holding company by 225.41 of the Board’s Regulation Y (12 have applied to the Board for approval, pursuant to the Bank Holding Company acquiring 100 percent of the voting CFR 225.41) to acquire a bank or bank shares of Premier Bancshares, Inc., holding company. The factors that are Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part Jefferson City, Missouri, and thereby considered in acting on the notices are indirectly acquire Premier Bank, set forth in paragraph 7 of the Act (12 225), and all other applicable statutes and regulations to become a bank Jefferson City, Missouri. U.S.C. 1817(j)(7)). C. Federal Reserve Bank of Kansas holding company and/or to acquire the The notices are available for City (D. Michael Manies, Assistant Vice assets or the ownership of, control of, or immediate inspection at the Federal President) 925 Grand Avenue, Kansas the power to vote shares of a bank or Reserve Bank indicated. The notices City, Missouri 64198-0001: also will be available for inspection at bank holding company and all of the 1. Bank Capital Corporation, the offices of the Board of Governors. banks and nonbanking companies Strasburg, Colorado; to acquire 100 Interested persons may express their owned by the bank holding company, percent of the voting shares of Citizens views in writing to the Reserve Bank including the companies listed below. Holding Corporation, Keensburg, indicated for that notice or to the offices The applications listed below, as well Colorado, and thereby indirectly acquire of the Board of Governors. Comments as other related filings required by the Citizens State Bank, Keensburg, must be received not later than May 20, Board, are available for immediate Colorado. 1999. inspection at the Federal Reserve Bank A. Federal Reserve Bank of Atlanta indicated. The application also will be Board of Governors of the Federal Reserve System, (Lois Berthaume, Vice President) 104 available for inspection at the offices of Marietta Street, N.W., Atlanta, Georgia the Board of Governors. Interested Robert deV. Frierson, 30303-2713: persons may express their views in Associate Secretary of the Board. 1. Lepago Enterprises, Inc., Tampa, writing on the standards enumerated in [FR Doc. 99–11314 Filed 5–5–99; 8:45 am] Florida, and Constantino Gonzalez, Rosa the BHC Act (12 U.S.C. 1842(c)). If the BILLING CODE 6210±01±F Gonzales, Anthony F. Gonzalez, and proposal also involves the acquisition of Silvia Martinez, all of Tampa, Florida, a nonbanking company, the review also as shareholders; to acquire voting shares includes whether the acquisition of the FEDERAL RESERVE SYSTEM nonbanking company complies with the of Manufacturers Bancshares, Inc., Notice of Proposals to Engage in standards in section 4 of the BHC Act. Tampa, Florida (in organization), and Permissible Nonbanking Activities or Unless otherwise noted, nonbanking thereby indirectly acquire voting shares to Acquire Companies that are activities will be conducted throughout of Manufacturers Bank of Florida, Engaged in Permissible Nonbanking the United States. Tampa, Florida. Activities 2. Llaneza Enterprises, Inc., Tampa, Unless otherwise noted, comments Florida, and Frank A. Llaneza and Diana regarding each of these applications The companies listed in this notice Llaneza, all of Tampa, Florida, as must be received at the Reserve Bank have given notice under section 4 of the shareholders; to acquire voting shares of indicated or the offices of the Board of Bank Holding Company Act (12 U.S.C. Manufacturers Bancshares, Inc., Tampa, Governors not later than May 31, 1999. 1843) (BHC Act) and Regulation Y, (12 Florida (in organization), and thereby A. Federal Reserve Bank of Atlanta CFR Part 225) to engage de novo, or to indirectly acquire voting shares of (Lois Berthaume, Vice President) 104 acquire or control voting securities or
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24396 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices assets of a company, including the for Space Education, Pad-A. The Clearance Officer, 1600 Clifton Road, companies listed below, that engages telephone number for the KSC Visitors MS-D24, Atlanta, GA 30333. Written either directly or through a subsidiary or Center if 407–452–2121. Inquiries may comments should be received with 60 other company, in a nonbanking activity be emailed to www.ksc.nasa.gov.. days of this notice. that is listed in § 225.28 of Regulation PURPOSE: To discuss the report to the Y (12 CFR 225.28) or that the Board has President, the recommendation related Proposed Projects determined by Order to be closely to the ‘‘How to Guide’’, and to solicit 1. Diffusion of Needle-stick related to banking and permissible for input from the community on Prevention Strategies—NEW—National bank holding companies. Unless implementation plans for this and other Institute for Occupational Safety and otherwise noted, these activities will be recommendations for celebrating Health (NIOSH)—Occupational conducted throughout the United States. women in American history. Each notice is available for inspection Under 41 CFR 101–6.1015(b)(2) less exposure to bloodborne pathogens at the Federal Reserve Bank indicated. than 15 days notice of the meeting is (including the hepatitis B and C viruses The notice also will be available for provided due to delays in organizing and the human immunodeficiency inspection at the offices of the Board of schedules. virus) poses a risk to workers in the Governors. Interested persons may FOR FURTHER INFORMATION CONTACT: health care industry and related express their views in writing on the Martha Davis (202) 501–0705, Assistant occupations. The primary route of question whether the proposal complies to the Associate Administrator for exposure to bloodborne pathogens is with the standards of section 4 of the Communications, General Services accidental percutaneous injury by a BHC Act. Administration. Also, inquiries may be needle or similar sharp object. Unless otherwise noted, comments sent to [email protected]. In 1991 the Occupational Safety and regarding the applications must be Health Administration (OSHA) enacted received at the Reserve Bank indicated Dated: April 30, 1999. or the offices of the Board of Governors Beth Newburger, the final Bloodborne Pathogen Standard. not later than May 20, 1999. Associate Administrator for Communications. Although the OSHA standard has A. Federal Reserve Bank of San [FR Doc. 99–11420 Filed 5–5–99; 8:45 am] increased compliance and awareness of Francisco (Maria Villanueva, Manager BILLING CODE 6820±34±M needle-stick injury prevention of Analytical Support, Consumer strategies, needle-stick injuries are still Regulation Group) 101 Market Street, occurring. San Francisco, California 94105-1579: DEPARTMENT OF HEALTH AND Studies have demonstrated that the 1. Philippine National Bank Metro HUMAN SERVICES use of safer needle-stick prevention Manila, The Philippines, and Century devices can reduce the incidence of Holding Corporation, Beverly Hills, Centers for Disease Control and needle-stick injuries and resulting costs. Prevention California; to acquire PNB Remittance Little is known however, about how Centers, Inc., Los Angeles, California, [INFO±99±16] many hospitals have adopted devices and thereby engage in money remittance such as, safer blood collection needles activities, as previously approved by Proposed Data Collections Submitted (SBCN) designed to prevent Board order; See Philippine Commercial for Public Comment and percutaneous injuries, and the variables International Bank, 77 Fed. Res. Bull. Recommendations 270, (1991); Bergen Bank A/S. 76 Fed. that can influence their adoption by Res. Bull. 457 (1990); and Norwest In compliance with the requirement hospitals. Corporation, 81 Fed. Res. Bull. 974 of section 3506(c)(2)(A) of the This study will conduct a random (1995). Paperwork reduction Act of 1995, the sample national survey of 960 infection Centers for Disease Control and control practitioners to evaluate how Board of Governors of the Federal Reserve Prevention is providing opportunity for System, April 30, 1999. widespread the adoption of SBCN and public comment on proposed data other needle-stick prevention devices is Robert deV. Frierson, collection projects. To request more in hospitals; and some of the internal Associate Secretary of the Board. information on the proposed projects or and external environmental variables [FR Doc. 99–11315 Filed 5–5–99; 8:45 am] to obtain a copy of the data collection that can influence their adoption. The BILLING CODE 6210±01±F plans and instruments, call the CDC Reports Clearance Officer on (404) 639– survey data may be used to indicate a 7090. hospital’s readiness to adopt SBCN, to GENERAL SERVICES Comments are invited on: (a) Whether assess the extent of the diffusion of ADMINISTRATION the proposed collection of information SBCN, and to cluster hospitals is necessary for the proper performance according to their stage of adoption for President's Commission on the of the functions of the agency, including SBCN. Celebration of Women in American whether the information shall have The goal of this study is to (1) inform History practical utility; (b) the accuracy of the future NIOSH communication/ AGENCY: General Services agency’s estimate of the burden of the dissemination strategies to promote Administration. proposed collection of information; (c) safer blood collection and related ACTION: Meeting notice. ways to enhance the quality, utility, and medical devices in hospitals, (2) inform clarity of the information to be policy makers about variables that can SUMMARY: Notice is hereby given that collected; and (d) ways to minimize the influence the adoption of safer blood the President’s Commission on the burden of the collection of information collection devices, and (3) provide data Celebration of Women in American on respondents, including through the that reveals national trends for the History will hold an open meeting from use of automated collection techniques adoption of safer needles-tick 12 p.m. to 5 p.m. on Thursday, May 20, for other forms of information 1999, at the Kennedy Space Center technology. Send comments to Seleda prevention devices in hospitals. There (KSC), Florida, Visitor Complex, Center Perryman, CDC Assistant Reports cost to the respondents is $0.00.
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Number of Avg. Burden/ Respondent Number of responses/re- response Total burden Respondents spondent (in hrs.) (in hrs.)
Infection control nurses ...... 960 1 .1166 112
2. PHS Supplements to the governments and for private non-profit will be used in lieu of the PHSIS in Application for Federal Assistance SF and for-profit organizations when specific instances. CDC’s new forms will 424 (0920–0428)—Extension—The applying for financial assistance from be used in lieu of the 5161–1 form for Centers for Disease Control and PHS grant programs. The Checklist state and local governments requesting Prevention (CDC) is requesting a three- assists applicants to ensure that they federal funding that is limited to state year extension of the currently approved have included all required information and local governments only. OMB forms that are Supplements to the necessary to process the application. Request for Federal Assistance The Checklist data helps to reduce the The current OMB approval for the Application (SF–424). The Checklist, time required to process and review supplements was previously submitted Program Narrative, the Public Health grant applications, expediting the and approved as an emergency System Impact Statement (third party issuance of grant awards. The PHSIS clearance and we are asking for a full notification) (PHSIS), a new Substance Third Party Notification Form is used to three clearance to continue data Abuse and Mental Health Services inform State and local health agencies of collection The total annual cost to the Administration (SAMHSA) form and a community-based proposals submitted respondents is estimated to be new CDC form are a part of the standard by non-governmental applicants for $1,184,452. application for state and local Federal funding. SAMHSA’s new form
Number of Avg. burden/ Respondents Number of responses/re- response (in Total burden respondents spondent hrs.) (in hrs.)
Program Narrative and Checklist ...... 6,231 1 4 24,924 CDC Form 0.0126 (E) ...... 990 1 4 3,960 Public Health Impact Statement (PHSIS) ...... 2,845 2.5 .1666 1,185 SSA (SAMHSA) ...... 1,125 1 .1666 187
Total ...... 30,256
3. Safety for Workers’ Eyes: Testing used behavioral theory to examine the observation, post-intervention survey, the Effectiveness of Theoretically-Based use of safety eye wear among union and focus groups. Eye Injury Prevention Messages— carpenters or develop a program that The pre- and post-intervention survey NEW—National Institute for would increase safety eye wear use. instruments will assess carpenters’ use Occupational Safety and Health The goals of this investigation are to: of eye wear before and after the health (NIOSH) -Despite evidence that at least (1) Estimate the number of carpenters communication message. In addition, 90% of workplace eye injuries are who are currently wearing protective based on the theory of planned preventable, safety eye wear use among eye wear by direct observation and pre- behavior, the questionnaire will address workers is disappointingly low. intervention survey in the study sample; workers behavioral intentions, attitudes, According to the National Institute for subjective norms, and perceived Occupational Safety and Health (2) develop an eye wear safety behavioral control. (NIOSH) and results from the 1988 promotion campaign geared toward National Health Interview Survey carpenters, their first-line supervisors, Using a quasi-experimental design, Occupation Health Supplement, more and contractors based on results from the data collected in this study will than 600,000 occupational eye injuries focus groups and using the theory of assess the effectiveness of theory-based occur annually. Sixteen percent of eye planned behavior; (3) increase the use of messages to increase the use of safety injuries occur among construction with protective eye wear among carpenters eye wear when compared to a control carpenters being at particular risk given by administering the eye safety group. This information will provide the nature of their work. messages to carpenters, their first-line public health investigators as well as Research has been conducted on the supervisors, and contractors; and (4) carpenter safety officers with a theory- nature and extent of eye injuries among determine the effectiveness of the driven effective eye injury prevention workers, but few studies have explored messages by comparing the use of safety program and the tools to implement it. the behavioral aspects of the use of eye wear among carpenters before and The total cost to respondents is safety eye wear. To date, no one has after the campaign by direct $2,257.00.
Number of Avg. burden/ Respondents Number of responses/re- response (in Total burden respondents spondent hrs.) (in hrs.)
Carpenters ...... 150 2 .33 99
4. Hepatitis C Virus Lookback Infectious Disease (NCID)—The Food recently issued guidelines for Evaluation -NEW- National Center for and Drug Administration (FDA) has notification of persons who received
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Number of Avg. burden/ Respondents Number of responses/re- response Total burden respondents spondents (in hours) (in hours)
Blood collection establishments ...... 140 1 5 700 Transfusion services ...... 5,000 1 5 25,000 Transfusion recipients (first telephone contact) ...... 5,000 1 0.2 1,000 Transfusion recipients (second telephone contact) ...... 2,000 1 0.5 1,000 Transfusion recipients (follow-up interview and study) ...... 200 3 0.5 300 Transfusion recipients (first interview of recipients tested at ARC/ABC ...... 500 1 0.2 100 Transfusion recipients (follow-up interview and study of recipients tested at ARC/ ABC) ...... 100 3 0.5 150
Total ...... 28,250
Dated: April 30, 1999. Center for Health Statistics (NCHS) 2. Research Component: Support Nancy Cheal, invites applications to establish Centers methodological and analytic research Acting Associate Director for Policy, Planning for Excellence in Health Statistics projects aimed at advancing the state of and Evaluation, Centers for Disease Control (CEHS). The goal of these cooperative the art of collection, analysis, and and Prevention (CDC). agreements is to support research to interpretation of health statistics to [FR Doc. 99–11339 Filed 5–5–99; 8:45 am] enhance the capability of the statistical inform prevention research and BILLING CODE 4163±18±P sciences to meet the rapidly changing evaluation. Integrate the fields of needs of health surveillance, public statistics, health services research, health research, and in particular survey research, public health, DEPARTMENT OF HEALTH AND prevention research. This program epidemiology, behavioral and social HUMAN SERVICES addresses the ‘‘Healthy People 2000’’ sciences, computer science and priority area(s) of Surveillance and Data. Centers for Disease Control and technology among others. Through such The purposes of this program are to: Prevention multi-disciplinary research, explore 1. Build Infrastructure new approaches to enhance the [Program Announcement 99119] (Administrative Core): Provide an capability of the statistical system to organizational setting to promote meet the rapidly changing needs of Centers for Excellence in Health research on methods for health health surveillance, public health Statistics; Notice of Availability of statistics, drawing upon multiple research, and prevention research. Funds disciplines and involving collaboration with multiple partners. Serve as a model 3. Recruitment and Outreach A. Purpose for outreach, input, and collaboration (Promote Training): Enhance The Centers for Disease Control and that helps assure that research can be opportunities for research training, Prevention (CDC), through the Office of applied to solving priority problems career development, and mentoring. Prevention Research and the National nationally or in the local community.
1 Food and Drug Administration. Guidance For Donors with Repeatedly Reactive Screening Tests Results for Anti-HCV. Rockville, MD: Center for Industry. Current Good Manufacturing Practice for for Antibody to Hepatitis C Virus (Anti-HCV); (2) Biologics Evaluation and Research, FDA; September Blood and Blood Components: (1) Quarantine and Supplemental Testing, and the Notification of 1998. Disposition of Units from Prior Collections from Consignees and Blood Recipients of Donor Test
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B. Eligible Applicants for within population group 8. Measurement: Improved techniques Applications may be submitted by comparison; examination of protective for describing and measuring health public and private nonprofit or wellness factors and health seeking status, functional status, health organizations and by governments and behaviors particular to population outcomes, and the impact of care and their agencies; that is, universities, groups. the environment, behavior, family, and colleges, research institutions, hospitals, 3. Data linkages: Improved use of community on health status. other public and private nonprofit existing administrative data sets (e.g., 9. Non-sampling error: Examination of organizations, State and local Medicare, Medicaid, Veterans biases associated with the sampling governments or their bona fide agents, Administration, National Death Index, frame, mode of survey, non-response, and federally recognized Indian tribal hospital discharges, and employer and measurement bias. 10. Confidentiality and data sharing: governments, Indian tribes, or Indian health files), expanded use of data Development of innovative methods and tribal organizations. sources from outside the public health arena, approaches to tracking patient techniques to ensure the confidentiality Note: Public Law 104–65 states that an health episodes across different of information provided by respondents, organization described in section 501(c)(4) of while at the same time maximizing the the Internal Revenue Code of 1986 that providers, and methods for linking or engages in lobbying activities is not eligible matching different data sources to move sharing of micro-data for analysis, e.g., to receive Federal funds constituting an toward broader population coverage. employing random transformations and award, grant, cooperative agreement, 4. Data analysis: Analytic approaches imputed synthetic variables and contract, loan or any other form. to interpreting poverty and evaluating the resulting analytic losses; development and evaluation of C. Availability of Funds socioeconomic status and their effect on population subgroups, analytic alternative approaches to obtain Approximately $750,000 is available approaches to assessing the impact of informed consent. in FY 1999 to fund approximately two managed care on health as well as F. Program Requirements awards. It is expected that the average impact of other changes in health care award will be $375,000 in total costs, systems, and enhancement of In conducting activities to achieve the ranging from $250,000 to $500,000. It is epidemiological studies of disease and purpose of this program, the recipient anticipated that the awards will begin illness including the impact of behavior will be responsible for the activities on or about September 30, 1999 and will and environmental exposures, improved under 1. (Recipient Activities), and CDC be made for a 12-month budget period strategies for combining qualitative data will be responsible for the activities within a project period of up to three to enhance insight into statistical listed under 2. (CDC Activities). 1. Recipient Activities: years. Funding estimates may change. research, examination of demographic a. Build Infrastructure Continuation awards within an aspects of health, morbidity, disability, (Administrative Core) approved project period will be made and mortality—including issues related on the basis of satisfactory progress as (1) Establish an appropriate to the influence of early life on later life, organizational setting and institutional evidenced by progress reports and the algorithms for measuring health availability of funds. infrastructure (administrative core) that outcomes and quality of care, and is supportive of a set of research D. Use of Funds validation of aggregated variables. projects. This setting must facilitate Applicants should include sufficient 5. Information technology: Expanded collaboration between multiple travel funds within their budgets to research and development of disciplines and involve multiple travel to NCHS, Hyattsville, Maryland automation technologies, including the partners. facility for an annual meeting of all development of new electronic methods (2) Establish relationship(s) with awarded research center principal for data collection, improved analytic organizations relevant to the success of investigators. tools, and new approaches to electronic the Center’s research agenda, data dissemination. demonstrated by letters of agreement. E. Programmatic Interests 6. Special populations: Improved data Cooperation with private-sector There is programmatic interest in on populations particularly vulnerable programs is encouraged. developing CEHS that would conduct a to changes in the health care system and (3) Establish relationship(s) with wide range of research, analytic and those with unique health problems organizations or individuals that can implementation activities pertaining to (racial/ethnic minorities, poor, disabled, help assure that research can be applied health statistics and information elderly, highly mobile populations) of to solving priority problems nationally systems for health promotion and particular interest is the reliability of or (if appropriate) in the local disease prevention research and race and ethnic information on vital and community. application. Examples of relevant medical records (self-report versus b. Research Component research topics include but are not proxy) with a focus on mortality (1) Develop and organize a limited to those listed below: statistics and misreporting. prevention/promotion research theme 1. Survey methodology: New 7. Medical informatics: Approaches to (or set of themes) and a research agenda. sampling approaches, new designs for defining, accessing and using For example, themes and research hard to reach populations, new computerized patient records, the agendas can address Programmatic approaches for linking and integrating development of uniform data elements Interests research topics outlined in that health surveys, improved capabilities and definitions, developing methods for section of the announcement, or can be for conducting longitudinal and cross greater linkage between medical focused on problems unique to the sectional studies, improved methods for informatics and population-based health community in which the CEHS would addressing language and cognitive information, developing standardized be located. issues in conducting surveys. instruments for recording utilization (2) Design and conduct one or more 2. Health Promotion and Disease (especially preventive services) for research projects within the research Prevention: Development of standards illness episodes that can be used by agenda developed by the particular in terms, definitions and methods; primary care service providers in a CEHS that involves specialists or development of health status indicators variety of settings. experts in sophisticated methodology
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Does the center take advantage issues. are in the application kit. of unique features of the scientific and (3) Develop a plan to disseminate On or before deadline date of July 6, public health environments or employ research findings as widely as is 1999, submit the application to the useful collaborative arrangements? Is practicable. Grants Management Specialist there evidence of a high level of c. Recruitment and Outreach (Promote identified in the ‘‘Where to Obtain institutional commitment and support? Training): Establish program for Additional Information’’ section of this Does the Center Director (Principal enhancing opportunities, career announcement. Investigator) have specific authority and development and training including Deadline: Applications shall be responsibility to carry out the project? Is mentoring of junior researchers, and considered as meeting the deadline if the Center Director located programs for training mid-career or they are either: organizationally at a level to garner the transitional professionals who have not (a) Received on or before the deadline support needed for the center (i.e., previously worked in the specialties of date; or report to an appropriate institutional health statistics and prevention (b) Sent on or before the deadline date official, e.g., dean of a school, vice research. and received in time for orderly president of a university, or 2. CDC/NCHS Activities: processing. (Applicants must request a commissioner of health)? Is the time and a. Provide technical assistance on legibly dated U.S. Postal Service effort indicated for the Center Director projects as necessary. postmark or obtain a legibly dated adequate (minimum of 25 percent effort b. If needed, assist in the development receipt from a commercial carrier or devoted solely to this project with an of controlled access environment which U.S. Postal Service. Private metered anticipated range of 25 to 50 percent)? allows micro-data applications. postmarks shall not be acceptable as c. Community Collaboration: Ability c. If needed, assist in the development proof of timely mailing.) to build coalitions and partnerships of a research protocol for IRB review by Late Applications: Applications with critical organizations and all cooperating institutions participating which do not meet the criteria in (a) or individuals (such as distinguished in the research. (b) above are considered late scientists as well as potential researchers in training, universities, d. The CDC Institutional Review applications, will not be considered, colleges, research institutions, state and Board (IRB) will review and approve the and will be returned to the applicant. local governments, hospitals and protocol initially and on at least an I. Evaluation Criteria academic health centers, managed care annual basis until the research project is organizations, and other public and completed. Applications may be subjected to a preliminary evaluation by a peer review private nonprofit organizations) and to G. Application Content group to determine if the application is facilitate collaboration and coordination to assure the accomplishment of CEHS In developing the application, of sufficient technical and scientific goals. applicants should follow the merit to warrant further review (triage); information in the Program the CDC will withdraw from further d. Organization: The quality and Requirements, the Other Requirements, consideration applications judged to be appropriateness of the organizational and Evaluation Criteria sections. noncompetitive and promptly notify the structure, the quality and experience of principal investigator/program director the administrative staff, the plans for H. Submission and Deadline and the official signing for the applicant quality control through in-house 1. Letter of Intent (LOI) organization. Those applications judged consultation and outside review (e.g., to be competitive will be further Scientific Advisory Board), and the The letter of intent should be evaluated by a dual review process. quality of the plans for the allocating submitted to the Grants Management Each competitive application will be and monitoring of resources. Specialist identified in the ‘‘Where to evaluated individually against the e. Budget: Reasonableness of Obtain Additional Information’’ section following criteria by a Special Emphasis proposed budget and time frame for the of this announcement by June 2, 1999. Panel (SEP) appointed by CDC. The SEP project in relation to the work proposed. The letter of intent should not exceed will score each proposal based on 2. Research Component two pages and include the following scientific and technical merit. Factors to information. be considered by the SEP include: a. Research Theme: Is the concept of a. Name, address, telephone and fax a center fulfilled, i.e., is there an numbers, and E-mail address of the 1. Build Infrastructure (Administrative organizing prevention/promotion proposed Principal Investigator and the Core) research theme (or set of themes) and a identities of other key personnel and a. Organizational Infrastructure: Does research agenda that defines the mission participation institutions. the applicant demonstrate a multi- of the particular CEHS? b. A descriptive title of the proposed disciplinary approach to achieve the b. Public Health Significance: Does research. mission? Will the approach lead to the the center address an important public Although the letter of intent is development of a body of knowledge health problem? If the aims of the required, it is not binding, and does not that can yield results beyond that application are achieved, how will the enter into the review of a subsequent accomplished with individual projects field or health statistics and prevention application, the information that it alone? Will the CEHS attract established research benefit? What will be the effect contains allows NCHS staff to estimate investigators and develop genuine of the center and its affiliated studies on the potential review workload and avoid collaboration among investigators with fundamental advances in the conflicts of interest in the review diverse backgrounds and areas of development, testing, and dissemination process. expertise. of health statistics and prevention
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Research projects: Are the specific Send all reports to the Grants page on the Internet: http:// research projects of exceptional Management Specialist identified in the www.cdc.gov/nchswww. ‘‘Where to Obtain Additional scientific merit? Dated: April 30, 1999. e. Innovation: Does the Center Information’’ section of this propose to develop novel concepts, announcement. John L. Williams, approaches, measures or methods in The following additional Director, Procurement and Grants Office, basic research that will inform and requirements are applicable to this Centers for Disease Control and Prevention (CDC). guide health promotion and disease program. (See Addendum I) [FR Doc. 99–11338 Filed 5–5–99; 8:45 am] prevention? Are the aims original and AR–1 Human Subjects Requirements innovative? Do the projects extend AR–2 Requirements for Inclusion of BILLING CODE 4163±18±P existing approaches or develop new Women and Racial Ethnic methodologies or technologies? Minorities in Research f. Study Populations: The degree to DEPARTMENT OF HEALTH AND AR–9 Paperwork Reduction Act HUMAN SERVICES which the applicant has met the CDC Requirements Policy requirements regarding the AR–10 Smoke-Free Workplace Administration for Children and inclusion of women, ethnic, and racial Requirements Families groups in the proposed research. This AR–11 Healthy People 2000 includes: AR–12 Lobbying Restrictions President's Committee on Mental (1) The proposed plan for the K. Authority and Catalog of Federal Retardation; Notice of Meeting inclusion of both sexes and racial and Domestic Assistance Number ethnic minority populations for AGENCY HOLDING THE MEETING: appropriate representation. This program is authorized under President’s Committee on Mental (2) The proposed justification when section 306 of the Public Health Service Retardation. representation is limited or absent. Act, 42 U.S.C. section 242k as amended. TIME AND DATE: May 23, 1999—9:30 (3) A statement as to whether the The Catalog of Federal Domestic a.m.–5 p.m. design of the study is adequate to Assistance number is 93.283. PLACE: Hilton New Orleans Riverside measure differences when warranted. Hotel, New Orleans, Louisiana. (4) A statement as to whether the L. Where to Obtain Additional STATUS: plans for recruitment and outreach for Information Full Committee Meetings are study participants include the process The application kit and program open to the public. An interpreter for of establishing partnerships with announcement can be downloaded from the deaf will be available upon advance community(ies) and recognition of the CDC home page on the Internet: request. All meeting sites are barrier mutual benefits. http://www.cdc.gov. (Click on funding). free. g. Human Subjects: When applicable, To receive additional written TO BE CONSIDERED: The Committee plans the adequacy of the proposed means for information and to request an to discuss critical issues concerning protecting human subjects. application kit, call 1–888–GRANTS4 Federal Policy, Federal Research and h. Budget: Reasonableness of (1–888–472–6874). You will be asked to Demonstration, State Policy proposed budget. leave your name, address, and phone Collaboration, Minority and Cultural number and will need to refer to Diversity and Mission and Public 3. Recruitment and Outreach (Promote Awareness, relating to individuals with Training) Announcement 99119. You will receive a complete program description, mental retardation. a. Does the applicant include a information on application procedures, The PCMR acts in an advisory research development component for and application forms. CDC will not capacity to the President and the new, mid-career or transitional send application kits by facsimile or Secretary of the U.S. Department of professionals through research training express mail. Please refer to Program Health and Human Services on a broad and career development mechanisms? Announcement 99119 when you request range of topics relating to programs, b. To what extent are special efforts information. services, and supports for persons with made to recruit minority professionals If you have questions after reviewing mental retardation. The Committee, by and students to the CEHS? the contents of all documents business Executive Order, is responsible for A second-level review will be management and technical assistance evaluating the adequacy of current conducted by a panel of senior Federal may be obtained from: Victoria Sepe, practices in programs and supports for officials. The following will be Grants Management Specialist, Grants persons with mental retardation, and for considered in making funding Management Branch, Procurement and reviewing legislative proposals that decisions: (1) Results of the initial Grants Office, Announcement 99119, impact the quality of life that is review, (2) program balance, and (3) Centers for Disease Control and experienced by citizens with mental availability of funds. Prevention, Room 3000, 2920 retardation and their families. J. Other Requirements Brandywine Road, Atlanta, GA 30341, CONTACT PERSON FOR MORE INFORMATION: telephone (770) 488–2721, Email Jane L. Browning, Room 701 Aerospace Technical Reporting Requirements address: [email protected]. Building, 370 L’Enfant Promenade, Provide CDC with the original plus For programmatic technical S.W., Washington, D.C. 20447, (202) two copies of: assistance, contact: Jennifer Madans, 619–0634.
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Dated: April 30, 1999. Section 3506(c)(2)(A) of the PRA (44 by qualified experts. The IND Jane L. Browning, U.S.C. 3506(c)(2)(A)) requires Federal regulations establish reporting Executive Director, PCMR. agencies to provide a 60-day notice in requirements that include an initial [FR Doc. 11403 Filed 5–5–99; 8:45 am] the Federal Register concerning each application as well as amendments to BILLING CODE 4184±01±M proposed collection of information, that application, reports on significant including each proposed extension of an revisions of clinical investigation plans, existing collection of information, and information on a drug’s safety or DEPARTMENT OF HEALTH AND before submitting the collection to OMB effectiveness. In addition, the sponsor is HUMAN SERVICES for approval. To comply with this required to give FDA an annual requirement, FDA is publishing notice summary of the previous year’s clinical Food and Drug Administration of the proposed collection of experience. Submissions are reviewed information listed in this document. by medical officers and other agency [Docket No. 99N±1010] With respect to the following scientific reviewers assigned Agency Information Collection collection of information, FDA invites responsibility for overseeing the specific Activities: Proposed Collection; comments on: (1) Whether the proposed study. The IND regulations also contain Comment Request; Investigational collection of information is necessary recordkeeping requirements that pertain New Drug Regulations for the proper performance of FDA’s to the responsibilities of sponsors and functions, including whether the investigators. The detail and complexity AGENCY: Food and Drug Administration, information will have practical utility; of these requirements are dictated by the HHS. (2) the accuracy of FDA’s estimate of the scientific procedures and human subject ACTION: Notice. burden of the proposed collection of safeguards that must be followed in the information, including the validity of clinical tests of investigational new SUMMARY: The Food and Drug the methodology and assumptions used; drugs. Administration (FDA) is announcing an (3) ways to enhance the quality, utility, The IND information collection opportunity for public comment on the and clarity of the information to be requirements provide the means by proposed collection of certain collected; and (4) ways to minimize the which FDA can: (1) Monitor the safety information by the agency. Under the burden of the collection of information of ongoing clinical investigations; (2) Paperwork Reduction Act of 1995 (the on respondents, including through the determine whether the clinical testing of PRA), Federal agencies are required to use of automated collection techniques, a drug should be authorized; (3) ensure publish a notice in the Federal Register when appropriate, and other forms of production of reliable data on the concerning each proposed collection of information technology. metabolism and pharmacological action of the drug in humans; (4) obtain timely information, including each proposed Investigational New Drug (IND) information on adverse reactions to the extension of an existing collection of Regulations—21 CFR Part 312 (OMB drug; (5) obtain information on side information, and to allow 60 days for Control Number 0910–0014—Extension) public comment in response to the effects associated with increasing doses; notice. This notice solicits comments on FDA is requesting OMB approval for (6) obtain information on the drug’s requirements governing applications for the reporting and recordkeeping effectiveness; (7) ensure the design of FDA’s approval to market a new drug. requirements contained in FDA’s well-controlled, scientifically valid regulation ‘‘Investigational New Drug DATES: Submit written comments on the studies; and (8) obtain other information collection of information by July 6, Application’’ (part 312 (21 CFR part pertinent to determining whether 312)). This regulation implements 1998. clinical testing should be continued and provisions of section 505(i) of the information related to the protection of ADDRESSES: Submit written comments Federal Food, Drug, and Cosmetic Act human subjects. Without the on the collection of information to the (the act) (21 U.S.C. 355(i)) to issue Dockets Management Branch (HFA– information provided by industry in regulations under which the clinical response to the IND regulations, FDA 305), Food and Drug Administration, investigation of the safety and cannot authorize or monitor the clinical 5630 Fishers Lane, rm. 1061, Rockville, effectiveness of unapproved new drugs investigations which must be conducted MD 20852. All comments should be and biological products can be prior to authorizing the sale and general identified with the docket number conducted. use of new drugs. These reports enable found in brackets in the heading of this FDA is charged with implementing FDA to monitor a study’s progress, to document. statutory requirements that drug assure subject safety, to assure that a FOR FURTHER INFORMATION CONTACT: products marketed in the United States study will be conducted ethically, and Karen Nelson, Office of Information be shown to be safe and effective, to increase the likelihood that the Resources Management (HFA–250), properly manufactured, and properly sponsor will conduct studies that will Food and Drug Administration, 5600 labeled for their intended uses. Section be useful in determining whether the Fishers Lane, Rockville, MD 20857, 505(a) of the act provides that a new drug should be marketed and available 301–827–1482. drug may not be introduced or delivered for use in medical practice. SUPPLEMENTARY INFORMATION: Under the for introduction into interstate The following two forms are required PRA (44 U.S.C. 3501–3520), Federal commerce in the United States unless under part 312: Form FDA–1571 agencies must obtain approval from the FDA has previously approved a new entitled ‘‘Investigational New Drug Office of Management and Budget drug application (NDA). FDA approves Application.’’A person who intends to (OMB) for each collection of an NDA only if the sponsor of the conduct a clinical investigation submits information they conduct or sponsor. application first demonstrates that the this form to FDA. It includes: (1) A ‘‘Collection of information’’ is defined drug is safe and effective for the cover sheet containing background in 44 U.S.C. 3502(3) and 5 CFR conditions prescribed, recommended, or information on the sponsor and 1320.3(c) and includes agency requests suggested in the product’s labeling. investigator; (2) a table of contents; (3) or requirements that members of the Proof must consist, in part, of adequate an introductory statement and general public submit reports, keep records, or and well-controlled studies, including investigational plan; (4) an investigator’s provide information to a third party. studies in humans, that are conducted brochure describing the drug substance;
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(5) a protocol for each planned study; experience with the investigational background information on the (6) chemistry, manufacturing, and drug. investigator and the investigation, and a control information for each Form FDA–1572 entitled ‘‘Investigator general outline of the planned investigation; (7) pharmacology and Statement.’’ Before permitting an investigation and the study protocol. toxicology information for each investigator to begin participation in an FDA is requesting OMB approval for investigation; and (8) previous human investigation, the sponsor must obtain the following reporting and and record this form. It includes recordkeeping requirements in part 312:
TABLE 1.ÐREPORTING REQUIREMENTS
21 CFR Section Explanations
312.7(d) ...... Applications for permission to sell an investigational new drug. 312.10(a) ...... Applications for waiver of requirements under part 312. Only emer- gency requests are estimated under this section; other requests are included under §§ 312.23 and 312.31. 312.20(c) ...... Applications for investigations involving an exception from informed consent under § 50.24 (21 CFR 50.24). Estimates for this require- ment are included under § 312.23. 312.23 ...... IND (content and format). 312.23(a)(1) ...... Cover sheet FDA±1571. 312.23(a)(2) ...... Table of contents. 312.23(a)(3) ...... Investigational plan for each planned study. 312.23(a)(5) ...... Investigator's brochure. 312.23(a)(6) ...... ProtocolsÐPhase 1, 2, and 3. 312.23(a)(7) ...... Chemistry, manufacturing, and control information. 312.23(a)(7)(iv)(a), (b), (c) ...... A description of the drug substance, a list of all components, and any placebo used. 312.23(a)(7)(iv)(d) ...... LabelingÐcopies of labels and labeling to be provided each investi- gator. 312.23(a)(7)(iv)(e) ...... Environmental impact analysis regarding drug manufacturing and use. 312.23(a)(8) ...... Pharmacological and toxicology information. 312.23(a)(9) ...... Previous human experience with the investigational drug. 312.23(a)(10) ...... Additional information. 312.23(a)(11) ...... Relevant information. 312.23(f) ...... Identification of exception from informed consent. 312.30 ...... Protocol amendments. 312.30(a) ...... New protocol. 312.30(b) ...... Change in protocol. 312.30(c) ...... New investigator. 312.30(d) ...... Content and format. 312.30(e) ...... Frequency. 312.31 ...... Information amendments. 312.31(b) ...... Content and format...... Chemistry, toxicology, or technical information. 312.32 ...... Safety reports. 312.32(c)(1) ...... Written reports to FDA and to investigators. 312.32(c)(2) ...... Telephone reports to FDA for fatal or life-threatening experience. 312.32(c)(3) ...... Format or frequency. 312.32(d) ...... Followup submissions. 312.33 ...... Annual reports. 312.33(a) ...... Individual study information. 312.33(b) ...... Summary information. 312.33(b)(1) ...... Adverse experiences. 312.33(b)(2) ...... Safety report summary. 312.33(b)(3) ...... List of fatalities and causes of death. 312.33(b)(4) ...... List of discontinuing subjects. 312.33(b)(5) ...... Drug action. 312.33(b)(6) ...... Preclinical studies and findings. 312.33(b)(7) ...... Significant changes. 312.33(c) ...... Next year general investigational plan. 312.33(d) ...... Brochure revision. 312.33(e) ...... Phase I protocol modifications. 312.33(f) ...... Foreign marketing developments. 312.35 ...... Treatment use of investigational new drugs. 312.35(a) ...... Treatment protocol submitted by IND sponsor. 312.35(b) ...... Treatment IND submitted by licensed practitioner. 312.36 ...... Requests for emergency use of an investigational new drug. 312.38(b) and (c) ...... Notification of withdrawal of an IND. 312.44(c) and (d) ...... Opportunity for sponsor response to FDA when IND is terminated. 312.45(a) and (b) ...... Sponsor request for or response to inactive status determination of an IND. 312.47(b) ...... ``End-of-Phase 2'' meetings and ``Pre-NDA'' meetings.
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TABLE 1.ÐREPORTING REQUIREMENTSÐContinued
21 CFR Section Explanations
312.53(c) ...... Investigator information. Investigator report (Form FDA±1572) and narrative; Investigator's background information; Phase 1 outline of planned investigation; and Phase 2 outline of study protocol; finan- cial disclosure information. 312.54(a) and (b) ...... Sponsor submissions concerning investigations involving an exception from informed consent under § 50.24. 312.55(b) ...... Sponsor reports to investigators on new observations, especially ad- verse reactions and safe use. Only ``new observations'' are esti- mated under this section; investigator brochures are included under § 312.23. 312.56(b), (c), and (d) ...... Sponsor monitoring of all clinical investigations, investigators, and drug safety; notification to FDA. 312.58(a) ...... Sponsor's submission of records to FDA on request. 312.64 ...... Investigator reports to the sponsor. 312.64(a) ...... Progress reports. 312.64(b) ...... Safety reports. 312.64(c) ...... Final reports. 312.64(d) ...... Financial disclosure reports. 312.66 ...... Investigator reports to Institutional Review Board. Estimates for this requirement are included under § 312.53. 312.70 ...... Investigator disqualification; opportunity to respond to FDA. Estimates for this requirement are not included in the estimates for part 312. 312.83 ...... Sponsor submission of treatment protocol. Estimates for this require- ment are included under §§ 312.34 and 312.35. 312.85 ...... Sponsors conducting phase 4 studies. Estimates for these post- marketing studies are not included in the estimates for part 312. 312.110(b) ...... Request to export an investigational drug. 312.120(b) and (c)(2) ...... Sponsor's submission to FDA for use of foreign clinical study to sup- port an IND. 312.120(c)(3) ...... Sponsor's report to FDA on findings of independent review committee on foreign clinical study. 312.130(d) ...... Request for disclosable information for investigations involving an ex- ception from informed consent under § 50.24.
TABLE 2.ÐRECORDKEEPING REQUIREMENTS
21 CFR Section Explanations
312.52(a) ...... Transfer of obligations to a contract research organization. 312.57(a) and (b) ...... Sponsor recordkeeping. 312.59 ...... Sponsor recordkeeping of disposition of unused supply of drugs. Esti- mates for this requirement are included under § 312.57. 312.62(a) ...... Investigator recordkeeping of disposition of drugs. 312.62(b) ...... Investigator recordkeeping of case histories of individuals. 312.160(a) ...... Records maintenanceÐshipment of drugs for investigational use in laboratory research animals or in vitro tests. 312.160(c) ...... Shipper records of alternative disposition of unused drugs.
TABLE 3.ÐESTIMATED ANNUAL REPORTING BURDEN FOR HUMAN DRUGS1
No. of Re- 21 CFR Section No. of sponses Per Total Annual Hours per Total Hours Respondents Respondent Responses Response
312.7(d) 7 1 7 24 168 312.10(a) 0 0 0 0 0 312.23(a) and (f) 1,601 1.25 1,996 1,600 3,193,600 312.30(a) through (e) 918 14.85 13,629 284 3,870,636 312.31(b) 760 8.87 6,738 100 673,800 312.32(c) and (d) 459 14.33 6,576 32 210,432 312.33(a) through (f) 1,841 2.35 4,318 350 1,511,300 312.35(a) and (b) 1 1 1 300 300 312.36 643 1.2 720 16 11,520 312.38(b) 621 1.24 773 28 21,644 312.38(c) 621 1.24 773 160 123,680 312.44(c) and (d) 710 1.10 780 16 12,480 312.45(a) and (b) 294 1.32 389 12 4,668 312.47(b) 252 1 252 160 40,320 312.53(c) 4,500 1 4,500 80 360,000 312.54(a) and (b) 4 1 4 48 192
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TABLE 3.ÐESTIMATED ANNUAL REPORTING BURDEN FOR HUMAN DRUGS1ÐContinued
No. of Re- 21 CFR Section No. of sponses Per Total Annual Hours per Total Hours Respondents Respondent Responses Response
312.55(b) 4,500 1 4,500 48 216,000 312.56(b), (c), and (d) 5 1 5 80 400 312.58(a) 337 1 337 8 2,696 312.64(a) through (d) 8,200 1 8,200 24 196,800 312.110(b) 150 2 303 75 22,725 312.120(b) and (c)(2) 100 2 200 168 33,600 312(c)(3) 100 2 200 40 8,000 312.130(d) 4 1 4 8 32 Total Reporting Burden 10,514,993 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
TABLE 4.ÐESTIMATED ANNUAL RECORDKEEPING BURDEN FOR HUMAN DRUGS1
Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Recordkeepers Recordkeeping Records Recordkeeper
312.52(a) 360 1 360 2 720 312.57(a) and (b) 4,000 2.05 8,200 100 400,000 312.62(a) 8,200 1 8,200 40 328,000 312.62(b) 8,200 12.2 100,000 40 328,000 312.160(a) 3,400 7.35 25,000 30 min 1,700 312.160(c) 3,400 2.35 8,000 30 min 1,700 Total Recordkeeping Burden 1,060,120 Human Drugs Total Burden Hours 11,575,113 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
TABLE 5.ÐESTIMATED ANNUAL REPORTING BURDEN FOR BIOLOGICS1
No. of Re- 21 CFR Section No. of sponses Per Total Annual Hours per Total Hours Respondents Response Responses Response
312.7(d) 9 1.3 12 24 288 312.10(a) 1 1 1 40 40 312.23(a) and (f) and 312.120(b), (c)(2), and (c)(3) 278 1.8 492 1,600 787,200 312.30(a) and (e) 975 6.5 6,411 284 1,820,724 312.31(b) 975 9.2 9,005 100 900,500 312.32(c) and (d) and 312.56(c) 602 6.7 4,034 32 129,088 312.33(a) and (f) and 312.56(c) 1,253 1.6 1,989 350 696,150 312.35(a) and (b) 1 1 1 300 300 312.36 22 5.5 122 16 1,952 312.38(b) 128 1.7 212 28 5,936 312.38(c) 128 1.7 212 160 33,920 312.44(c) and (d) 55 1.9 107 16 1,712 312.45(a) and (b) 74 1.4 105 12 1,260 312.47(b) 150 1.8 274 160 43,840 312.53(c) 672 6.6 4,421 80 353,680 312.54(a) and (b) 4 1 4 48 192 312.55(b) 374 6.1 2,288 48 109,824 312.56(b) and (d) 12 1.6 20 80 1,600 312.58(a) 10 1 10 8 80 312.64(a) and (d) 5,014 1 5,014 24 120,336 312.110(b) 10 1.3 13 75 975 312.130(d) 1 1 1 0.5 0.5 Total Reporting Burden 5,009,597.5 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
TABLE 6.ÐESTIMATED ANNUAL RECORDKEEPING BURDEN FOR BIOLOGICS1
Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Recordkeepers Recordkeeping Records Recordkeeper
312.52(a) 27 2.5 67 5 135 312.57(a) and (b) 1,253 2 2,506 100 125,300 312.62(a) 5,014 1 5,014 40 200,560 312.62(b) 8,200 12.2 100,000 40 328,000
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TABLE 6.ÐESTIMATED ANNUAL RECORDKEEPING BURDEN FOR BIOLOGICS1ÐContinued
Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Recordkeepers Recordkeeping Records Recordkeeper
312.160(a) 3,400 7.35 25,000 30 min 1,700 312.160(c) 320 1 320 0.5 160 Total Biologic Recordkeeping Hours 655,855 Total Biologics Burden Hours 5,665,452.5 Total Human Drugs Burden Hours 11,575,113 Total Combined Burdens 17,240,565.5 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
Dated: April 29, 1999. Guidance for Industry: Designation, support of fast-track designation or fast- William K. Hubbard, Development, and Application Review track program benefits that has Acting Deputy Commissioner for Policy. for Products in Fast-Track Drug previously been submitted to the [FR Doc. 99–11310 Filed 05–05–99; 8:45 am] Development Programs agency, in some cases, may be BILLING CODE 4160±01±F Section 112(a) of the Food and Drug incorporated by referring to them rather Administration Modernization Act of than by resubmission. In some 1997 (FDAMA) (Pub. L. 105–115) instances, a summary of data and DEPARTMENT OF HEALTH AND amends the Federal Food, Drug, and information may be submitted in HUMAN SERVICES Cosmetic Act (the act) by adding section support of fast-track designation or fast- 506 (21 U.S.C. 356) and authorizes FDA track program benefits. Therefore, FDA Food and Drug Administration to take appropriate action to facilitate anticipates that the PRA reporting [Docket No. 98N±0811] the development and expedite the burden under the guidance will be review of new drugs, including minimal. Agency Information Collection biological products, intended to treat a Under section 506(a)(1) of the act, an Activities; Submission for OMB serious or life-threatening condition and applicant who seeks fast-track Review; Comment Request; Guidance that demonstrate a potential to meet an designation is required to submit a for Industry: Designation, unmet medical need. The issuance of request to the agency. In order to receive Development, and Application Review the guidance will be under section a fast-track designation, the requester for Products in Fast-Track Drug 112(b) of FDAMA, which requires the must establish that the product meets Development Programs agency to issue guidance regarding fast- the statutory standard for designation, track policies and procedures within 1 i.e., that: (1) The product is intended for AGENCY: Food and Drug Administration, year of the date of enactment of a serious or life-threatening condition; HHS. FDAMA, November 21, 1997. The and (2) the product has the potential to ACTION: Notice. guidance will discuss collections of address an unmet medical need. In most information that are expressly specified cases, the agency expects that SUMMARY: The Food and Drug under section 506 of the act, other information to support a designation Administration (FDA) is announcing sections of the Public Health Service request will have been gathered under that the proposed collection of Act (the PHS Act), or implementing existing provisions of the act, the PHS information listed below has been regulations. For example, under section Act, or the implementing regulation. submitted to the Office of Management 506 of the act, an applicant who seeks Such information, if already submitted and Budget (OMB) for review and fast-track designation must submit a to the agency, may be summarized in a clearance under the Paperwork request to FDA. Some of the support for fast-track designation request. Reduction Act of 1995 (the PRA). such a request may be required under The guidance will also recommend DATES: Submit written comments on the regulations, such as parts 312, 314, and that a designation request include, collection of information by June 7, 601 (21 CFR parts 312, 314, and 601), where applicable, additional 1999. which specify the types and format of information not specified elsewhere by ADDRESSES: Submit written comments information and data that should be statute or regulation. For example, on the collection of information to the submitted to FDA for evaluation of the additional information may be needed Office of Information and Regulatory safety and effectiveness of to show that a product has the potential Affairs, OMB, New Executive Office investigational new drug applications to meet an unmet medical need where Bldg., 725 17th St. NW., rm. 10235, (IND’s) (part 312), new drug approved therapy exists for the serious Washington, DC 20503, Attn: Desk applications (part 314), or biological or life-threatening condition to be Officer for FDA. license applications (part 601). The treated. Such information may include: FOR FURTHER INFORMATION CONTACT: guidance will describe three general Clinical data, published reports, JonnaLynn P. Capezzuto, Office of areas involving collection of summaries of data and reports, and a list Information Resources Management information: Designation requests, of references. The amount of (HFA–250), Food and Drug premeeting packages, and requests to information and discussion in a Administration, 5600 Fishers Lane, submit portions of an application. Of designation request need not be Rockville, MD 20857, 301–827–4659. these, designation requests, and voluminous, but it should be sufficient SUPPLEMENTARY INFORMATION: In premeeting packages in support of to permit a reviewer to assess whether compliance with 44 U.S.C. 3507, FDA obtaining a fast-track program benefit the criteria for fast-track designation has submitted the following proposed will provide for additional collections of have been met. After the agency makes collection of information to OMB for information not provided elsewhere in a fast-track designation, a sponsor or review and clearance. statute or regulation. Information in applicant may submit a premeeting
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24407 package, which may include additional application complete before FDA can needed to prepare a request for fast- information to support a request to commence its review. The guidance will track designation may generally range participate in certain fast-track not provide for any new collection of between 40 and 80 hours per request, programs. As with the request for fast- information regarding the submission of depending on the complexity of each track designation, the agency expects portions of an application that is not request, with an average of 60 hours per that most sponsors or applicants will required under section 506(c) of the act request, as indicated in Table 1 of this have gathered such information to meet or any other provision of the act. All document. Not all requests for fast-track existing requirements under the act, the forms that will be referred to in the designation may meet the statutory PHS Act, or implementing regulations, guidance have valid OMB control standard. The agency estimates that such as descriptions of clinical safety numbers. These forms include: FDA approximately 90 percent of all annual and efficacy trials not conducted under Form 1571 (OMB Control No. 0910– requests, approximately 54 respondents, an IND (i.e., foreign studies), and 0104, expires December 31, 1999); FDA for fast-track designation would be information to support a request for Form 356h (OMB Control No. 0910– granted. Of those respondents who accelerated approval. If information has 0338, expires April 30, 2000); and FDA receive fast-track designation for a been previously submitted to FDA Form 3397 (OMB Control No. 0910– product, FDA expects that all will under an OMB approved collection of 0297, expires April 30, 2001). submit a premeeting package and that a information, the discussion of such Respondents to this information premeeting package would generally information in a fast-track premeeting collection are sponsors and applicants need more preparation time than package may be summarized. that seek fast-track designation under needed for a designation request Consequently, FDA anticipates that the section 506 of the act. The agency because the issues may be more additional collection of information estimates that the aggregate annual complex and the data may need to be attributed solely to the guidance will be number of respondents submitting more developed. FDA estimates that the minimal. requests for fast-track designation to the preparation hours may generally range Section 506(c) of the act requires a Center for Biologics Evaluation and between 80 and 120 hours, with an collection of information before an Research (CBER) and the Center for average of 100 hours per package, as applicant may be permitted to submit to Drug Evaluation and Research (CDER) indicated in Table 1 of this document. FDA portions of an application for will be approximately 60. To obtain this The hour burden estimates contained in review. Under this provision of the fast- estimate, FDA extrapolated from the Table 1 of this document are for track statute, a sponsor must submit number of requests for fast-track information collections requests in the clinical data sufficient for the agency to designation actually received by CBER guidance only and do not include determine, after preliminary evaluation, and CDER in a 6-month period since burden estimates for statutory that a fast-track product may be November 21, 1997, the date of requirements specifically mandated by effective. Section 506(c) of the act also enactment of FDAMA. Within this time the act, the PHS Act, or implementing requires that an applicant provide a period, CBER received 9 requests, and regulations. FDA estimates the burden schedule for the submission of CDER received 20 requests. FDA of this collection of information as information necessary to make the estimates that the number of hours follows:
TABLE 1.ÐESTIMATED ANNUAL REPORTING BURDEN1
Annual Frequency per Total Annual Re- No. of Respondents Response sponses Hours per Response Total Hours
Designation Request ...... 60 1 60 60 3,600 Premeeting Packages .... 54 1 54 100 5,400 Totals ...... 114 114 9,000 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
Dated: April 29, 1999. SUMMARY: The Food and Drug Tarrytown, NY 10591–9005. The William K. Hubbard, Administration (FDA) is announcing petition proposes to amend the food Associate Commissioner for Policy that Ciba Specialty Chemicals Corp. has additive regulations in § 178.2010 Coordination. filed a petition proposing that the food Antioxidants and/or stabilizers for [FR Doc. 99–11311 Filed 5–5–99; 8:45 am] additive regulations be amended to polymers (21 CFR 178.2010)to provide BILLING CODE 4160±01±F provide for the safe use of 2-methyl-4,6- for the safe use of 2-methyl-4,6-bis- bis-[(octylthio)]methyl] phenol as a [(octylthio)]methyl] phenol as a stabilizer for repeat use rubber articles. stabilizer for repeat use rubber articles. DEPARTMENT OF HEALTH AND FOR FURTHER INFORMATION CONTACT: HUMAN SERVICES The agency has determined under 21 Mark A. Hepp, Center for Food Safety CFR 25.32(i) that this action is of a type Food and Drug Administration and Applied Nutrition (HFS–215), Food that does not individually or and Drug Administration, 200 C St. SW., cumulatively have a significant effect on [Docket No. 99F±1170] Washington, DC 20204, 202–418–3098. the human environment. Therefore, SUPPLEMENTARY INFORMATION: neither an environmental assessment Ciba Specialty Chemicals Corp.; Filing Under the nor an environmental impact statement of Food Additive Petition Federal Food, Drug, and Cosmetic Act (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), is required. AGENCY: Food and Drug Administration, notice is given that a food additive HHS. petition (FAP 9B4660) has been filed by Ciba Specialty Chemicals Corp., 540 ACTION: Notice. White Plains Rd., P.O. Box 2005,
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Dated: April 26, 1999. amount required by the current standard This guidance is intended to provide Laura M. Tarantino, and adding polysorbate 60 and FDA reviewers and manufacturers with Acting Director, Office of Premarket propylene glycol alginate, which are not a coherent strategy for assessing Approval, Center for Food Safety and Applied permitted under the currrent standard, whether testing for potential adverse Nutrition. as safe and suitable emulsifiers other effects involving medical devices or [FR Doc. 99–11309 Filed 05–05–99; 8:45 am] than egg. In all other respects, the test constituent materials and the immune BILLING CODE 4160±01±F product will conform to the standard for system is needed. The guidance is also salad dressing. The test product meets intended to aid in developing a all the requirements of the standard systematic approach to such testing. DEPARTMENT OF HEALTH AND with the exception of the reduced DATES: Written comments may be HUMAN SERVICES amount of egg level in the product and submitted at any time. the addition of potassium sorbate, Food and Drug Administration phosphoric acid, lactic acid, polysorbate ADDRESSES: Submit written requests for [Docket No. 99P±1041] 60, and propylene glycol alginate. single copies on a 3.5’’ diskette of the Because test preferences vary by area, guidance entitled ‘‘Immunotoxicity Salad Dressing Deviating From Identity along with social and environmental Testing Guidance’’ to the Division of Standard; Temporary Permit for Market differences, the purpose of this permit is Small Manufacturers Assistance (HFZ– Testing to test the product throughout the 220), Center for Devices and United States. Radiological Health (CDRH), Food and AGENCY: Food and Drug Administration, Under this temporary permit, the Drug Administration, 1350 Piccard Dr., HHS. salad dressing will be test marketed as Rockville, MD 20850. Send two self- ACTION: Notice. ‘‘salad dressing.’’ addressed adhesive labels to assist that This permit provides for the office in processing your request, or fax SUMMARY: The Food and Drug temporary marketing of approximately your request to 301–443–8818. See the Administration (FDA) is announcing 390 million pounds of product during SUPPLEMENTARY INFORMATION section for that a temporary permit has been issued the entire 15-month period. The test information on electronic access to the to Kraft Foods, Inc., to market test a product will be manufactured by Kraft guidance. product designated as ‘‘salad dressing’’ Foods, Inc., at 2340 Forest Lane, Submit written comments on the that deviates from the U.S. standard of Garland, TX 75040; 1701 West Bradley ‘‘Immunotoxicity Testing Guidance’’ to identity for salad dressing. The purpose Ave., Champaign, IL 61821; and 7352 the contact person listed below. of the temporary permit is to allow the Industrial Blvd., Allentown, PA 18106. applicant to measure consumer The product will be distributed FOR FURTHER INFORMATION CONTACT: John acceptance of the product, identify mass throughout the United States. J. Langone, Center for Devices and production problems, and assess The information panel of the labels Radiological Health (HFZ–113), Food commercial feasibility, in support of a will bear nutrition labeling in and Drug Administration, 12709 petition to amend the standard of accordance with 21 CFR 101.9. Each of Twinbrook Pkwy., Rockville, MD 20852, identity for salad dressing. the ingredients used in the food must be 301–443–2911. DATES: This permit is effective for 15 declared on the labels as required by the SUPPLEMENTARY INFORMATION: months, beginning on the date the food applicable sections of 21 CFR part 101. is introduced or caused to be introduced This permit is effective for 15 months, I. Background into interstate commerce, but not later beginning on the date the food is In May 1995, FDA adopted the than August 4, 1999. introduced or caused to be introduced General Program Memorandum G95–1, FOR FURTHER INFORMATION CONTACT: into interstate commerce, but not later an FDA-modified version of Loretta A. Carey, Center for Food Safety than August 4, 1999. International Standard ISO–10993, and Applied Nutrition (HFS–158), Food Dated: April 27, 1999. entitled ‘‘Biological Evaluation of and Drug Administration, 200 C St. SW., Kenneth J. Falci, Medical Devices—Part 1: Evaluation Washington, DC 20204, 202–205–5099. Acting Director, Office of Food Labeling, and Testing.’’ It was pointed out that in SUPPLEMENTARY INFORMATION: In Center for Food Safety and Applied Nutrition. addition to the general guidance for accordance with 21 CFR 130.17 [FR Doc. 99–11346 Filed 5–5–99; 8:45 am] toxicity testing contained in that concerning temporary permits to BILLING CODE 4160±01±F document, additional guidance might be facilitate market testing of foods needed for evaluation of specific organ deviating from the requirements of the or system toxicity. As a result, the Office standards of identity issued under DEPARTMENT OF HEALTH AND of Device Evaluation, CDRH, developed section 401 of the Federal Food, Drug, HUMAN SERVICES the ‘‘Immunotoxicity Testing Guidance’’ and Cosmetic Act (21 U.S.C. 341), FDA to deal specifically with testing for Food and Drug Administration is giving notice that a temporary permit adverse effects of medical devices or has been issued to Kraft Foods, Inc., [Docket No. 97D±0024] constituent materials on the immune Three Lakes Dr., Northfield, IL 60093– system. The guidance is intended to 2753. Immunotoxicity Testing Guidance; ensure a consistent and scientifically The permit covers limited interstate Availability sound approach to the overall evaluation of product safety. marketing tests of products identified as AGENCY: Food and Drug Administration, ‘‘salad dressing’’ that deviate from the HHS. In addition to explanatory text, the U.S. standard of identity for salad ACTION: Notice. guidance contains: (1) A flowchart to dressing (21 CFR 169.150) by adding determine if immunotoxicity testing is potassium sorbate, phosphoric acid, and SUMMARY: The Food and Drug recommended, and (2) three tables that lactic acid, which are not permitted Administration (FDA) is announcing the lead sequentially from potential under the current standard, and by availability of the guidance entitled immunological effects, to potential reducing the amount of egg below the ‘‘Immunotoxicity Testing Guidance.’’ responses commonly associated with
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24409 those effects, to examples of testing that manufacturers’ assistance, information 93.393, Cancer Cause and Prevention might be considered as part of the on video conferencing and electronic Research; 93.394, Cancer Detection and overall safety evaluation of finished submissions, mammography matters, Diagnosis Research; 93.395, Cancer devices or constituent materials. and other device-oriented information. Treatment Research; 93.396, Cancer Biology FDA published a notice of availability Research; 93.397, Cancer Centers Support; The CDRH home page may be accessed 93.398, Cancer Research Manpower; 93.399, of the original draft guidance in the at ‘‘http://www.fda.gov/cdrh’’. The Cancer Control, National Institutes of Health, Federal Register of March 18, 1997 (62 ‘‘Immunotoxicity Testing Guidance’’ HHS) FR 12832). Comments were received document will be available at ‘‘http:// Dated: April 30, 1999. from 28 respondents, including medical www.fda.gov/cdrh/ost/ostggp/ LaVerne Y. Stringfield, device manufacturers, industry trade immunotox.html’’. groups, and individuals. These Committee Management Officer, NIH. comments were reviewed by the CDRH IV. Comments [FR Doc. 99–11430 Filed 5–5–99; 8:45 am] Immunotoxicology Working Group. Interested persons may, at any time, BILLING CODE 4140±01±M Based on these comments, the draft submit written comments regarding this guidance was revised to include guidance to the contact person listed additional didactic and technical previously. Such comments will be DEPARTMENT OF HEALTH AND information. The revised draft guidance considered when determining whether HUMAN SERVICES was reviewed by a group of regulatory to amend the current guidance. National Institutes of Health reviewers as well as senior CDRH Dated: April 28, 1999. management to obtain the final version Linda S. Kahan, National Cancer Institute; Notice of of ‘‘Immunotoxicity Testing Guidance.’’ Deputy Director for Regulations Policy, Center Closed Meeting II. Significance of Guidance for Devices and Radiological Health. Pursuant to section 10(d) of the This guidance represents the agency’s [FR Doc. 99–11345 Filed 5–5–99; 8:45 am] Federal Advisory Committee Act, as current thinking on immunotoxicity BILLING CODE 4160±01±F amended (5 U.S.C. Appendix 2), notice testing of medical devices and is hereby given of the following constituents. It does not create or confer meeting. any rights for or on any person and does DEPARTMENT OF HEALTH AND The meeting will be closed to the not operate to bind FDA or the public. HUMAN SERVICES public in accordance with the An alternative approach may be used if National Institutes of Health provisions set forth in sections such approach satisfies the applicable 552b(c)(4) and 552b(c)(6), title 5 U.S.C., statute, regulations, or both. National Cancer Institute; Notice of as amended. The grant applications and The agency has adopted good Closed Meeting the discussions could disclose guidance practices (GGP’s), which set confidential trade secrets or commercial forth the agency’s policies and Pursuant to section 10(d) of the property such as patentable material, procedures for the development, Federal Advisory Committee Act, as and personal information concerning issuance, and use of guidance amended (5 U.S.C. Appendix 2), notice individuals associated with the grant documents (62 FR 8961, February 27, is hereby given of the following applications, the disclosure of which 1997). This guidance is issued as a Level meeting. would constitute a clearly unwarranted 1 guidance consistent with GGP’s. The meeting will be closed to the invasion of personal privacy. public in accordance with the III. Electronic Access Name of Committee: National Cancer provisions set forth in sections Institute Initial Review Group Subcommittee In order to receive ‘‘Immunotoxicity 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., H—Clinical Groups. Testing Guidance’’ via your fax as amended. The grant applications and Date: June 7–8, 1999. machine, call the CDRH Facts-On- the discussions could disclose Time: 8:00 AM to 5:00 PM. Demand system at 800–899–0381 or confidential trade secrets or commercial Agenda: To review and evaluate grant 301–827–0111 from a touch-tone property such as patentable material, applications. telephone. At the first voice prompt and personal information concerning Place: Holiday Inn—Silver Spring, 8777 press 1 to access DSMA Facts, at second individuals associated with the grant Georgia Avenue, Silver Spring, MD 20910. voice prompt press 2, and then enter the applications, the disclosure of which Contact Person: Deborah R. Jaffe, PHD, Grants Review Branch, Division of document number (635) followed by the would constitute a clearly unwarranted # Extramural Activities, National Cancer pound sign ( ). Then follow the invasion of personal privacy. Institute, National Institutes of Health, 6130 remaining voice prompts to complete Name of Committee: National Cancer Executive Boulevard, Rockville, MD 20892, your request. Institute Initial Review Group Subcommittee (301) 496–7221. Persons interested in obtaining a copy C—Basic & Preclinical. (Catalogue of Federal Domestic Assistance of the guidance may also do so using the Date: June 11, 1999. Program Nos. 93.392, Cancer Construction; World Wide Web (WWW). CDRH Time: 1:30 PM to 4:30 PM. 93.393, Cancer Cause and Prevention maintains an entry on the WWW for Agenda: To review and evaluate grant Research; 93.394, Cancer Detection and easy access to information including applications. Diagnosis Research; 93.395, Cancer text, graphics, and files that may be Place: 6130 Executive Blvd. 6th Floor, Treatment Research; 93.396, Cancer Biology downloaded to a personal computer Rockville, MD 20852, (Telephone Conference Research; 93.397, Cancer Centers Support; with access to the WWW. Updated on Call). 93.398, Cancer Research Manpower, 93.399, Contact Person: Florence E. Farber, Ph.D., a regular basis, the CDRH home page Cancer Control, National Institutes of Health, Executive Secretary, Office of Advisory HHS) includes ‘‘Immunotoxicity Testing Activities, Division of Extramural Activities, Dated: April 30, 1999. Guidance,’’ device safety alerts, Federal National Cancer Institute, National Institutes LaVerne Y. Stringfield, Register reprints, information on of Health, 6130 Executive Boulevard, EPN premarket submissions (including lists 609, Rockville, MD 20892, 301/496–2378. Committee Management Officer, NIH. of approved applications and (Catalogue of Federal Domestic Assistance [FR Doc. 99–11431 Filed 5–5–99; 8:45 am] manufacturers’ addresses), small Program Nos. 93.392, Cancer Construction; BILLING CODE 4140±01±M
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DEPARTMENT OF HEALTH AND Name of Committee: Clinical Trials Review applications and/or contract proposals, HUMAN SERVICES Committee. the disclosure of which would Date: June 20–22, 1999. constitute a clearly unwarranted National Institutes of Health Time: June 20, 1999, 6:30 pm to 10:00 pm. invasion of personal privacy. Agenda: To review and evaluate grant National Center for Research applications. Name of Committee: National Advisory Resources; Amended Notice of Place: Holiday Inn Chevy Chase, 5520 Council for Human Genome Research. Wisconsin Avenue, Chevy Chase, MD 20815. Date: May 17–18, 1999. Meeting Time: June 21, 1999, 8:00 am to 6:00 pm. Open: May 17, 1999, 8:30 a.m. to 1:00 p.m. Notice is hereby given of a change in Agenda: To review and evaluate grant Agenda: The meeting will be open to the applications. public on Monday, May 17, 8:30 a.m. to the meeting of the National Advisory Place: Holiday Inn Chevy Chase, 5520 approximately 1:00 p.m. to discuss Research Resources Council, May 20, Wisconsin Avenue, Chevy Chase, MD 20815. administrative details or other issues relating 1999, 8:30 a.m. to May 21, 1999, 11 Contact Person: to committee activities. a.m., National Institutes of Health, 9000 Time: June 22, 1999, 8:00 am to 5:00 pm. Place: Holiday Inn, 8777 Georgia Avenue, Rockville Pike, Conference Room 6, Agenda: To review and evaluate grant Silver Spring, MD 20910. Building 31C, Bethesda, MD 20892 applications. Closed: May 17, 1999, 1:00 p.m. to which was published in the Federal Place: Holiday Inn Chevy Chase, 5520 adjournment on May 18, 1999. Register on March 24, 1999, 99–7202. Wisconsin Avenue, Chevy Chase, MD 20815. Agenda: To review and evaluate grant Contact Person: Joyce A. Hunter, PhD, applications and/or proposals. An additional open session of the NHLBI/DEA/Review Branch, Rockledge Place: Holiday Inn, 8777 Georgia Avenue, meeting will be held on May 21, 1999, Building II, Room 7192, MSC 7924, 6701 Silver Spring, MD 20910. beginning at 9:30 a.m. and lasting until Rockledge Drive, Bethesda, MD 20892, (301) Contact Person: Elke Jordan, PHD, Deputy the meeting is adjourned. The meeting 435–0287. Director, National Human Genome Research is partially closed to the public. (Catalogue of Federal Domestic Assistance Institute, National Institutes of Health, PHS, Dated: April 29, 1999. Program Nos. 93.233, National Center for DHHS, 31 Center Drive, Building 31, Room Sleep Disorders Research; 93.837, Heart and 4B09, Bethesda, MD 20892, 301 496–0844. LaVerne Y. Stringfield, Vascular Diseases Research; 93.838, Lung This notice is being published less than 15 Committee Management Officer, NIH. Diseases Research; 93.839, Blood Diseases days prior to the meeting due to the timing [FR Doc. 99–11325 Filed 5–5–99; 8:45 am] and Resources Research, National Institutes limitations imposed by the review and BILLING CODE 4140±01±M of Health, HHS) funding cycle. Dated: April 29, 1999. (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, Program Nos. 93.172, Human Genome Research, National Institutes of Health, HHS) DEPARTMENT OF HEALTH AND Committee Management Officer, NIH. HUMAN SERVICES Dated: April 30, 1999. [FR Doc. 99–11326 Filed 5–5–99; 8:45 am] LaVerne Y. Stringfield, BILLING CODE 4140±01±M National Institutes of Health Committee Management Officer, NIH. National Heart, Lung, and Blood [FR Doc. 99–11426 Filed 5–5–99; 8:45 am] Institute; Notice of Closed Meetings DEPARTMENT OF HEALTH AND BILLING CODE 4140±01±M HUMAN SERVICES Pursuant to section 10(d) of the Federal Advisory Committee Act, as National Institutes of Health DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES is hereby given of the following National Human Genome Research meetings. Institute; Notice of Meeting National Institutes of Health The meetings will be closed to the Pursuant to section 10(d) of the National Institute of Neurological public in accordance with the Federal Advisory Committee Act, as Disorders and Stroke; Notice of Closed provisions set forth in sections amended (5 U.S.C. Appendix 2), notice Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., is hereby given of a meeting of the as amended. The grant applications and National Advisory Council for Human Pursuant to section 10(d) of the the discussions could disclose Genome Research. Federal Advisory Committee Act, as confidential trade secrets or commercial The meeting will be open to the amended (5 U.S.C. Appendix 2), notice property such as patentable material, public as indicated below, with is hereby given of the following and personal information concerning attendance limited to space available. meeting. individuals associated with the grant Individuals who plan to attend and The meeting will be closed to the applications, the disclosure of which need special assistance such as sign public in accordance with the would constitute a clearly unwarranted language interpretation or other provisions set forth in sections invasion of personal privacy. reasonable accommodations should 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: Heart, Lung, and notify the Contact Person listed below as amended. The contract proposals and Blood Program Project Review Committee. in advance of the meeting. the discussions could disclose Date: June 17, 1999. The meeting will be closed to the confidential trade secrets or commercial Time: 8:00 am to 4:00 pm. public in accordance with the property such as patentable material, Agenda: To review and evaluate grant provisions set forth in sections and personal information concerning applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., individuals associated with the contract Place: Holiday Inn—Silver Spring, 8777 as amended. The grant applications proposals, the disclosure of which Georgia Avenue, Silver Spring, MD 20910. and/or contract proposals and the would constitute a clearly unwarranted Contact Person: Jeffrey H. Hurst, PhD, Scientific Review Administrator, Review discussions could disclose confidential invasion of personal privacy. Branch, National Heart, Lung, and Blood trade secrets or commercial property Name of Committee: National Institute of Institute, National Institutes of Health, 6701 such as patentable material, and Neurological Disorders and Stroke Special Rockledge Drive, Room 7208, Bethesda, MD personal information concerning Emphasis Panel. 20892, 301/435–0303. individuals associated with the grant Date: May 18, 1999.
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Time: 11:30 a.m. to 12:30 p.m. Name of Committee: National Institute of Name of Committee: National Institute of Agenda: To review and evaluate contract Neurological Disorders and Stroke Initial Environmental Health Sciences Special proposals. Review Group, Neurological Sciences and Emphasis Panel, Conference Grants (R13). Place: Neuroscience Center, National Disorders B. Date: May 10, 1999. Institutes of Health, 6001 Executive Blvd., Date: June 21–22, 1999. Time: 1:00 p.m. to 2:30 p.m. Bethesda, MD 20892 (Telephone Conference Time: 7:30 am to 5:00 pm. Agenda: To review and evaluate grant Call). Agenda: To review and evaluate grant applications. Contact Person: Phillip F. Wiethorn, applications. Place: NIEHS-East Campus, 79 T W Scientific Review Administrator, Scientific Place: Holiday Inn Bethesda, 8120 Alexander Dr., Bldg. 4401, Rm EC–122, Review Branch, NINDS/NIH/DHHS, Wisconsin Avenue, Bethesda, MD 20814. Research Triangle Park, NC 27709, Neuroscience Center, 6001 Executive Blvd., Contact Person: Paul A. Sheehy, PhD, (Telephone Conference Call). Suite 3208, MSC 9529, Bethesda, MD 20892– Scientific Review Administrator, Scientific Contact Person: J. Patrick Mastin, PhD, 79 9529, 301–496–9223. Review Branch, NINDS/NIH/DHHS, Alexander Drive, Research Triangle Park, NC This notice is being published less than 15 Neuroscience Center, 6001 Executive Blvd, 27709, (919) 541–1446. days prior to the meeting due to the timing Suite 3208, MSC 9529, Bethesda, MD 20892– This notice is being published less than 15 limitations imposed by the review and 9529, 301–496–9223. days prior to the meeting due to the timing funding cycle. Name of Committee: National Institute of limitations imposed by the review and (Catalogue of Federal Domestic Assistance Neurological Disorders and Stroke Initial funding cycle. Program Nos. 93.853, Clinical Research Review Group, Neurological Sciences and (Catalogue of Federal Domestic Assistance Related to Neurological Disorders; 93.854, Disorders A. Program Nos. 93.113, Biological Response to Date: June 24–25, 1999. Biological Basis Research in the Environmental Health Hazards; 93.114, Time: 8:30 am to 5:00 pm. Neurosciences, National Institutes of Health, Applied Toxicological Research and Testing; Agenda: To review and evaluate grant HHS) 93.115, Biometry and Risk Estimation— applications. Health Risks from Environmental Exposures; Dated: April 29, 1999. Place: Chevy Chase Holiday Inn, Chevy 93.142, NIEHS Hazardous Waste Worker LaVerne Y. Stringfield, Chase, MD 20815. Health and Safety Training; 93.143, NIEHS Contact Person: Katherine M. Woodbury, Committee Management Officer, NIH. Superfund Hazardous Substances—Basic [FR Doc. 99–11327 Filed 5–5–99; 8:45 am] Phd, Scientific Review Administrator, Scientific Review Branch, NINDS/NIH/ Research and Education; 93.894, Resources BILLING CODE 4140±01±M DHHS, National Institutes of Health, and Manpower Development in the Neuroscience Center, 6001 Executive Blvd, Environmental Health Sciences, National Suite 3208, MSC 9529, Bethesda, MD 20892– Institutes of Health, HHS) DEPARTMENT OF HEALTH AND 9529, 301–496–9223. Dated: April 29, 1999. HUMAN SERVICES (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, Program Nos. 93.853, Clinical Research Committee Management Officer, NIH. National Institutes of Health Related to Neurological Disorders; 93.854, [FR Doc. 99–11329 Filed 5–5–99; 8:45 am] Biological Basis Research in the National Institute of Neurological Neurosciences, National Institute of Health, BILLING CODE 4140±01±M Disorders and Stroke; Notice of Closed HHS) Meetings Dated: April 29, 1999. DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the LaVerne Y. Stringfield, HUMAN SERVICES Federal Advisory Committee Act, as Committee Management Officer, NIH. amended (5 U.S.C. Appendix 2), notice [FR Doc. 99–11328 Filed 5–5–99; 8:45 am] National Institutes of Health is hereby given to the following BILLING CODE 4140±01±M meetings. National Institute of Mental Health; The meetings will be closed to the Notice of Closed Meeting public in accordance with the DEPARTMENT OF HEALTH AND HUMAN SERVICES Pursuant to section 10(d) of the provisions set forth in sections Federal Advisory Committee Act, as 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institutes of Health amended (5 U.S.C. Appendix 2), notice as amended. The grant applications and is hereby given of the following the discussions could disclose National Institute of Environmental meeting. confidential trade secrets or commercial Health Sciences; Notice of Closed The meeting will be closed to the property such as patentable material, Meeting public in accordance with the and personal information concerning provisions set forth in sections individuals associated with the grant Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which Federal Advisory Committee Act, as as amended. The grant applications and would constitute a clearly unwarranted amended (5 U.S.C. Appendix 2), notice the discussions could disclose invasion of personal privacy. is hereby given of the following confidential trade secrets or commercial meeting. Name of Committee: Training Grant and property such as patentable material, Career Development Review Committee. The meeting will be closed to the public in accordance with the and personal information concerning Date: June 18, 1999. individuals associated with the grant Time: 8:00 am to 5:00 pm. provisions set forth in sections Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which applications. as amended. The grant applications and would constitute a clearly unwarranted Place: One Washington Circle Hotel, One the discussions could disclose invasion of personal privacy. Washington Circle, N.W., Washington, DC confidential trade secrets or commercial Name of Committee: National Institute of 20037. property such as patentable material, Mental Health Special Emphasis Panel. Contact Person: Lillian M. Pubols, PhD, Date: May 13–14, 1999. Chief, Scientific Review Branch, NINDS/ and personal information concerning Time: 8:30 am to 5:00 pm. NIH/DHHS, Neuroscience Center, 6001 individuals associated with the grant Agenda: To review and evaluate grant Executive Blvd, Suite 3208, MSC 9529, applications, the disclosure of which applications. Bethesda, MD 20892–9529, 301–496–9223, would constitute a clearly unwarranted Place: Double Tree Hotel, 1750 Rockville [email protected]. invasion of personal privacy. Pike, Rockville, MD 20852.
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Contact Person: Robert H. Stretch, PhD, Review Program, Division of Extramural Dated: April 30, 1999. Scientific Review Administrator, Division of Activities, NIAID, NIH, Solar Building, Room LaVerne Y. Stringfield, Extramural Activities, National Institute of 4C02, 6003 Executive Boulevard MSC 7610, Director, Office of Federal Advisory Mental Health, NIH, Neuroscience Center, Bethesda, MD 20892–7610, 301–402–0643. Committee Policy, NIH. 6001 Executive Blvd., Room 6150, MSC 9608, (Catalogue of Federal Domestic Assistance [FR Doc. 99–11428 Filed 5–5–99; 8:45 am] Bethesda, MD 20892–9608, 301–443–4728. Program Nos. 93.855, Allergy, Immunology, BILLING CODE 4410±01±M This notice is being published less than 15 and Transplantation Research; 93.856, days prior to the meeting due to the timing Microbiology and Infectious Diseases limitations imposed by the review and Research, National Institutes of Health, HHS) funding cycle. DEPARTMENT OF HEALTH AND Dated: April 30, 1999. (Catalogue of Federal Domestic Assistance HUMAN SERVICES Program Nos. 93.242, Mental Health Research LaVerne Y. Stringfield, Grants; 93.281, Scientist Development Director, Office of Federal Advisory National Institutes of Health Award, Scientist Development Award for Committee Policy, NIH. Clinicians, and Research Scientist Award; [FR Doc. 99–11427 Filed 5–5–99; 8:45 am] National Institute of Diabetes and 93.282, Mental Health National Research BILLING CODE 4140±01±M Digestive and Kidney Diseases; Notice Service Awards for Research Training, of Closed Meetings National Institutes of Health, HHS) Pursuant to section 10(d) of the Dated: April 29, 1999. DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as LaVerne Y. Stringfield, HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice Committee Management Officer, NIH. National Institutes of Health is hereby given of the following [FR Doc. 99–11330 Filed 5–5–99; 8:45 am] meetings. BILLING CODE 4140±01±M National Institute of Allergy and The meetings will be closed to the Infectious Diseases; Notice of Closed public in accordance with the DEPARTMENT OF HEALTH AND Meeting provisions set forth in sections HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Pursuant to section 10(d) of the as amended. The grant applications and National Institutes of Health Federal Advisory Committee Act, as the discussions could disclose amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial National Institute of Allergy and is hereby given of the following property such as patentable material, Infectious Diseases; Notice of Closed meeting. and personal information concerning Meeting The meeting will be closed to the individuals associated with the grant applications, the disclosure of which Pursuant to section 10(d) of the public in accordance with the provisions set forth in sections would constitute a clearly unwarranted Federal Advisory Committee Act, as invasion of personal privacy. amended (5 U.S.C. Appendix 2), notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., is hereby given of the following as amended. The grant applications and Name of Committee: National Institute of meeting. the discussions could disclose Diabetes and Digestive and Kidney Diseases The meeting will be closed to the confidential trade secrets or commercial Special Emphasis Panel; ZDK1 GRB–C property such as patentable material, (M1)P. public in accordance with the Date: May 11–13, 1999. provisions set forth in sections and personal information concerning Time: May 11, 1999, 7:00 PM to 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., individuals associated with the grant Adjournment. as amended. The grant applications and applications, the disclosure of which Agenda: To review and evaluate grant the discussions could disclose would constitute a clearly unwarranted applications. confidential trade secrets or commercial invasion of personal privacy. Place: Remont Hotel, 2101 5th Avenue, property such as patentable material, Name of Committee: National Institute of North Birmingham, AL 35203. Contact Person: Dan E. Matsumoto, PHD, and personal information concerning Allergy and Infectious Diseases Special Scientific Review Administrator, Review individuals associated with the grant Emphasis Panel, Sexually Transmitted Branch, DEA, NIDDK, Natcher Building, Diseases. applications, the disclosure of which Room 6AS–37B, National Institutes of Date: May 21, 1999. would constitute a clearly unwarranted Health, Bethesda, MD 20892–6600, (301) Time: 1:00 p.m. to 5:00 p.m. invasion of personal privacy. 594–8894. Agenda: To review and evaluate grant Name of Committee: National Institute of This notice is being published less than 15 applications. days prior to the meeting due to the timing Allergy and Infectious Diseases Special Place: Holiday Inn Georgetown, Emphasis Panel, Adult Therapeutic Clinical limitations imposed by the review and Kaleidoscope Room, 2101 Wisconsin funding cycle. Trials Program for AIDS. Avenue, Washington, DC 20007. Date: June 6–9, 1999. Name of Committee: National Institute of Contact Person: Anna Ramsey-Ewing, PHD, Time: June 6, 1999, 7:00 PM to recess. Diabetes and Digestive and Kidney Diseases Scientific Review Administrator, Scientific Agenda: To review and evaluate grant Special Emphasis Panel; ZDK1 GRB–6 M2. Review Program, Division of Extramural applications. Date: May 12–14, 1999. Activities, NIAID, NIH, Solar Building, Room Place: Holiday Inn—Georgetown, 2101 Time: May 12, 1999, 8:00 PM to 4C37, 6003 Executive Boulevard MSC 7610, Wisconsin Avenue, NW, Washington, DC Adjournment. 20007. Bethesda, MD 20892–7610, 301/435–8536. Agenda: To review and evaluate grant Time: June 7, 1999, 8:30 a.m. to This notice is being published less than 15 applications. adjournment. days prior to the meeting due to the timing Place: The Envoy Club, 377 East 33rd Agenda: To review and evaluate grant limitations imposed by the review and Street, New York, NY 10015. applications. funding cycle. Contact Person: Neal A. Musto, PHD, Place: Holiday Inn—Georgetown, 2101 (Catalogue of Federal Domestic Assistance Scientific Review Administrator. Wisconsin Avenue, NW, Washington, DC Program Nos. 93.855, Allergy, Immunology, This notice is being published less than 15 20007. and Transplantation Research; 93.856, days prior to the meeting due to the timing Contact Person: Paula S. Strickland, PHD, Microbiology and Infectious Diseases limitations imposed by the review and Scientific Review Administrator, Scientific Research, National Institutes of Health, HHS) funding cycle.
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Name of Committee: National Institute of automated collection techniques or DATES: Comments due date: July 6, Diabetes and Digestive and Kidney Diseases other forms of information technology. 1999. Special Emphasis Panel, ZDK1 GRB D (M3)S. 1. Proposed Project: Application to ADDRESSES: Interested persons are Date: May 13, 1999. the Board of Correction of Public Health invited to submit comments regarding Time: 11:00 AM to Adjournment. Service (PHS) Commissioned Corps Agenda: To review and evaluate grant this proposal. Comments should refer to applications. Records (PSC–54) (Formerly PHS– the proposal by name and/or OMB Place: National Institutes of Health, 6190)—0937–0095—Revision. Control Number and should be sent to: Natcher Bldg., 45 Center Drive, Room 6AS– An application is submitted by Wayne Eddins, Reports Management 37, Bethesda, MD 20892, (Telephone commissioned officers of the PHS Officer, Department of Housing and Conference Call). Commissioned Corps, former officers, Urban Development, 451 7th Street, SW, Contact Person: Ann A. Hagan, PHD, Chief, their spouses or heirs who appeal to the Room 9116, Washington, DC 20410. Review Branch, National Institute of Board for Correction to request remsoval Diabetes, Digestive and Kidney Diseases, FOR FURTHER INFORMATION CONTACT: of an alleged error or injustice in an Peter Giaquinto, Office of Multifamily National Institutes of Health, PHS, DHHS, officer’s record. The information Rm. 6AS37, Bldg. 45, Bethesda, MD 20892, Housing Programs, telephone number submitted is used by the Board for (301) 594–8886. (202) 708–4162, this is not a toll-free This notice is being published less than 15 Correction to determine if an error or number) for copies of the proposed days prior to the meeting due to the timing injustice has occurred and to rectify forms and other available documents. limitations imposed by the review and such error or injustice. An appeal SUPPLEMENTARY INFORMATION: The funding cycle. cannot be considered without the Department is submitting the proposed (Catalogue of Federal Domestic Assistance information furnished on this form. The information collection to OMB for Program Nos. 93.847, Diabetes, form has been revised to reflect: (1) Endocrinology and Metabolic Research; Organizational changes which have review, as required by the Paperwork 93.848, Digestive Diseases and Nutrition occurred since its last revision in May Reduction Act of 1995 (44 U.S.C. Research; 93.849, Kidney Diseases, Urology 1985; (2) a streamlined form to permit Chapter 35, as amended). and Hematology Research, National Institutes a more logical entry of data; and (3) a This Notice is soliciting comments of Health, HHS) need for additional information to from members of the public and affected Dated: April 30, 1999. process appeals and release records. agencies concerning the proposed LaVerne Y. Stringfield, Respondents: Individuals of households collection of information to: (1) Evaluate Director, Office of Federal Advisory and Federal employees. Total Number whether the proposed collection of Committee Policy, NIH. of Respondents: ten per calendar year. information is necessary for the proper [FR Doc. 99–11429 Filed 5–5–99; 8:45 am] Number of Responses per Respondent: performance of the functions of the agency, including whether the BILLING CODE 4140±01±M one response request. Average Burden per Response: four hours. information will have practical utility; Estimated Annual Burden: 40 hours. (2) Evaluate the accuracy of the agency’s DEPARTMENT OF HEALTH AND Send comments to Douglas F. Mortl, estimate of the burden of the proposed HUMAN SERVICES PSC Reports Clearance Officer, Room collection of information; (3) Enhance 17A08, Parklawn Building, 5600 Fishers the quality, utility, and clarity of the Program Support Center Lane, Rockville, MD 20857. Written information to be collected; and (4) Minimize the burden of the collection of Agency Information Collection comments should be received within 60 days of this notice. information on those who are to Activities: Proposed Collections; respond; including the use of Comment Request Dated: April 29, 1999. appropriate automated collection Lynnda M. Regan, techniques or other forms of information The Department of Health and Human Director, Program Support Center. technology, e.g., permitting electronic Services, Program Support Center (PSC), [FR Doc. 99–11308 Filed 5–5–99; 8:45 am] submission of responses. will periodically publish summaries of BILLING CODE 4168±17±M This Notice also lists the following proposed information collection information: projects and solicit public comments in Title of Proposal: Request for compliance with the requirements of DEPARTMENT OF HOUSING AND Termination of Multifamily Mortgage Section 3506(c)(2)(A) of the Paperwork URBAN DEVELOPMENT Insurance. Reduction Act of 1995. To request more OMB Control Number, if applicable: information on the project or to obtain [Docket No. FR±4445±N±11] 2502–0416. a copy of the information collection Description of the Need for the Notice of Proposed Information plans and instruments, call the PSC Information and Proposed Use: Form Collection: Comment Request; Reports Clearance Officer on (301) 443– HUD–9807 is used to notify HUD that a Request for Termination of Multifamily 2045. mortgage has been paid in full or that a Mortgage Insurance Comments are invited on: (a) Whether mortgagor and mortgagee mutually agree the proposed collection of information AGENCY: Office of the Assistant to terminate the contract of mortgage is necessary for the proper performance Secretary for Housing, HUD. insurance with HUD. of the functions of the agency, including ACTION: Notice. Agency Form Numbers, if applicable: whether the information shall have HUD–9807. practical utility; (b) the accuracy of the SUMMARY: The proposed information Status of the proposed information agency’s estimate of the burden of the collection requirement described below collection: Reinstatement without proposed collection of information; (c) will be submitted to the Office of change or a previously approved ways to enhance the quality, utility and Management and Budget (OMB) for collection. clarity of the information to be review, as required by the Paperwork Estimation of the total numbers of collected; and (d) ways to minimize the Reduction Act. The Department is hours needed to prepare the information burden of the collection of information soliciting public comments on the collection including number of on respondents, including the use of subject proposal. respondents, frequency of response, and
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24414 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices hours of response: The estimated Information Relay Service at 1–800– with a designated contract number of respondents is 500, 877–8339. (This is a toll-free number.) administrator. frequency of responses is 1, and the SUPPLEMENTARY INFORMATION: On March * * * * * hours of response is .125 hour per 8, 1999, HUD published NOFAs for the 2. FR Doc. 99–5578, Notice of response. following programs: Funding Availability for: Rental Assistance for Non-elderly Persons with Authority. The Paperwork Reduction Act —Rental Assistance for Non-Elderly of 1995, 44 U.S.C. Chapter 35, as amended. Disabilities Related to Certain Types of Persons with Disabilities in Support Section 8 Project-Based Developments Dated: April 30, 1999. of Designated Housing Plans (64 FR William C. Apgar, and Sections 202, 221(d)(3), and 236 11294) Developments (FR–4413–N–01), Assistant Secretary for Housing-Federal —Rental Assistance for Non-elderly Housing Commissioner. published in the Federal Register on Persons with Disabilities Related to March 8, 1999 (64 FR 11310), is [FR Doc. 99–11419 Filed 5–5–99; 8:45 am] Certain Types of Section 8 Project- corrected as follows: BILLING CODE 4210±27±M Based Developments and Sections On page 11314, in the first column, 202, 221(d)(3), and 236 Developments paragraph (b) at the bottom is corrected (64 FR 11310) to read as follows: DEPARTMENT OF HOUSING AND —Mainstream Housing Opportunities URBAN DEVELOPMENT * * * * * for Persons with Disabilities (b) The PHA has serious unaddressed, [Docket Nos. FR±4412±C±02; FR±4413±C± (Mainstream Program) (64 FR 11302) outstanding Inspector General audit 02; FR±4414±C±02; and FR±4415±C±03] On March 5, 1999, HUD published a findings, HUD management review findings, or independent public Technical Corrections to Notices of NOFA for the Family Unification Program. (64 FR 10904) accountant (IPA) findings for its rental Funding Availability for Fiscal Year voucher or rental certificate programs; 1999 for: Rental Assistance for Non- This correction notice, published in today’s Federal Register, makes the or the PHA has failed to achieve a lease- Elderly Persons with Disabilities in up rate of 90 percent of units in its Support of Designated Housing Plans; following two corrections to paragraph V.(B)(2)(b) in all four NOFAs: HUD-approved budget for the PHA Rental Assistance for Non-Elderly fiscal year prior to application for 1. The lease-up rate for a PHA’s Persons with Disabilities Related to funding in its rental voucher and Section 8 rental certificate and voucher Certain Types of Section 8 Project- certificate programs combined. The only program should be calculated on a Based Developments and Sections exception to this category is if the PHA combined basis and not on the basis of 202, 221(d)(3), and 236 Developments; has been identified under the policy ‘‘each’’ program. Family Unification Program; and established in Section I.(D) of this Mainstream Housing Opportunities for 2. The parenthetical phrase NOFA and the PHA makes application Persons with Disabilities (Mainstream ‘‘(excluding the impact of the three- with a designated contract Program) month statutory delay requirement administrator. effective in FY 1997 and 1998 for the AGENCY: Office of the Assistant reissuance of rental vouchers and * * * * * 3. FR Doc. 99–5577, Notice of Secretary for Public and Indian certificates)’’ should be removed. Housing, HUD. Funding Availability for: Mainstream Accordingly, the four NOFAs are ACTION: Notice; technical corrections. Housing Opportunities for Persons with corrected as follows: Disabilities (Mainstream Program) (FR– SUMMARY: This notice makes two 1. FR Doc. 99–5576, Notice of 4415–N–01), published in the Federal technical corrections to each of the Funding Availability for: Rental Register on March 8, 1999 (64 FR following four Fiscal Year 1999 Notices Assistance for Non-Elderly Persons with 11302), is corrected as follows: of Funding Availability (NOFAs): Disabilities in Support of Designated On page 11307, in the middle column, —Rental Assistance for Non-Elderly Housing Plans (FR–4412–N–01), paragraph (b) at the top is corrected to Persons with Disabilities in Support published in the Federal Register on read as follows: of Designated Housing Plans March 8, 1999 (64 FR 11294), is * * * * * —Rental Assistance for Non-elderly corrected as follows: (b) The PHA has serious unaddressed, Persons with Disabilities Related to On page 11298, in the first column, outstanding Inspector General audit Certain Types of Section 8 Project- paragraph (b) at the top is corrected to findings, HUD management review Based Developments and Sections read as follows: findings, or Independent Public 202, 221(d)(3), and 236 Developments * * * * * Accountant (IPA) findings for its rental —Mainstream Housing Opportunities (b) The PHA has serious unaddressed, voucher or rental certificate programs; for Persons with Disabilities outstanding Inspector General audit or the PHA has failed to achieve a lease- (Mainstream Program) findings, HUD management review up rate of 90 percent of units in its —the Family Unification Program findings, or independent public HUD-approved budget for the PHA FOR FURTHER INFORMATION CONTACT: accountant (IPA) findings for its rental fiscal year prior to application for George C. Hendrickson, Housing voucher or rental certificate programs; funding in its rental voucher and Program Specialist, Office of Public and or the PHA has failed to achieve a lease- certificate programs combined. The only Assisted Housing Delivery, Department up rate of 90 percent of units in its exception to this category is if the PHA of Housing and Urban Development, HUD-approved budget for the PHA has been identified under the policy Room 4216, 451 Seventh Street, SW, fiscal year prior to application for established in Section I.(D) of this Washington, DC 20410–8000; telephone funding in its rental voucher and NOFA and the PHA makes application (202) 708–1872, ext. 4064. (This is not certificate programs combined. The only with a designated contract a toll-free number.) Persons with exception to this category is if the PHA administrator. hearing or speech impairments may has been identified under the policy * * * * * access this number via TTY (text established in Section I.(D) of this 4. FR Doc. 99–5535, Notice of telephone) by calling the Federal NOFA and the PHA makes application Funding Availability for: Family
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Unification Program (FR–4414–N–01), will administer the family unification oral and written comments concerning published in the Federal Register on assistance on behalf of the PHA. potential issues in Indian education. March 5, 1999 (64 FR 10904), is * * * * * The potential issues which will be set corrected as follows: Dated: April 30, 1999. forth in a tribal consultation booklet to On page 10909, in the middle column, Harold Lucas, be issued prior to the meetings are: paragraph (b) at the middle is corrected Assistant Secretary for Public and Indian 1. Revision of the application for to read as follows: Housing. construction replacement of the * * * * * [FR Doc. 99–11418 Filed 5–5–99; 8:45 am] education facilities, instructions and (b) The PHA has serious unaddressed, BILLING CODE 4210±33±P ranking criteria. outstanding Inspector General audit 2. Open Item. findings, HUD management review 3. Need for additional Family and findings, or independent public DEPARTMENT OF THE INTERIOR Child Education Programs. accountant (IPA) findings for its rental voucher or rental certificate programs, Bureau of Indian Affairs 4. Grants to Tribally Controlled or the PHA has failed to achieve a lease- Community Colleges and Navajo up rate of 90 percent of units in its Tribal Consultation on Indian Community College. HUD-approved budget for the PHA Education Topics DATES: May 17, 18, 19, 20, 21, 26, 25, fiscal year prior to application for AGENCY: Bureau of Indian Affairs, 27, and 28, 1999, for all locations listed. funding in its rental voucher and Interior. Several dates and locations were certificate programs combined. The only ACTION: Notice of tribal consultation scheduled to coincide with meetings of exception to this category is if the PHA meetings. various Indian education organizations. has been identified under the policy All meetings will begin at 9:00 a.m. and established in Section I(D)(2) of this SUMMARY: Notice is hereby given that continue until 3:00 p.m. (local time) or NOFA and the PHA makes application the Bureau of Indian Affairs (BIA) will until all meeting participants have an with another agency or contractor that conduct consultation meetings to obtain opportunity to make comments.
MEETING SCHEDULE
Date Location Local contacts Phone Numbers
May 26, 1999 ...... Bismarck, ND ...... Cherie Farlee ...... (605) 964±8722 May 28, 1999 ...... Folsom, CA ...... Fayetta Babby ...... (916) 979±2560 May 19, 1999 ...... Gallup, NM ...... Beverly Crawford ...... (520) 674±5131 May 17, 1999 ...... New Orleans, LA ...... LaVonna Weller ...... (703) 235±3233 May 25, 1999 ...... Oklahoma City, OK ...... Joy Martin ...... (405) 605±6051 May 18, 1999 ...... Billings, MT ...... LaVonne French ...... (406) 247±7953 May 20, 1999 ...... Cloquet, MN ...... Terry Portra ...... (612) 373±1000 May 27, 1999 ...... Phoenix, AZ ...... Ray Interpreter ...... (520) 338±5441 May 20, 1999 ...... Fairbanks, AK ...... Robert Pringle ...... (907) 271±4120 May 19, 1999 ...... Grand Ronde, OR ...... John Reimer ...... (503) 872±2743 May 21, 1999 ...... Anchorage, AK ...... Robert Pringle ...... (907) 271±4120 May 26, 1999 ...... Jemez Pueblo, NM ...... Ben Atencio ...... (505) 346±2431 May 19, 1999 ...... Bethel, AK ...... Robert Pringle ...... (907) 271±4120
ADDRESSES: Written comments should on potential issues raised during DEPARTMENT OF THE INTERIOR be mailed, to be received, on or before previous consultation meetings or being July 30, 1999, to the Bureau of Indian considered by the BIA regarding Indian Bureau of Land Management Affairs, Office of Indian Education education programs. A consultation [CA±066±99±1990±00; CACA±20139 and Programs, MS–3512–MIB, OIE–32, 1849 booklet for the May meetings is being CACA±22901] C Street, NW, Washington, D.C. 20240, distributed to Federally recognized Attn: Larry Holman: OR, may be hand Indian Tribes, Bureau Area and Agency Proposed Sand and Gravel Mining delivered to Room 3512 at the same Offices and Bureau-funded schools. The Operation, Los Angeles County, CA address. Comments may also be faxed to booklets will also be available from AGENCY: Bureau of Land Management, (202) 273–0030 or E-mail to local contact persons and at each [email protected]. Department of the Interior, Palm meeting. Springs-South Coast Field Office, Desert FOR FURTHER INFORMATION CONTACT: Dr. District, CA. James Martin or Goodwin K. Cobb III at Dated: April 28, 1999. ACTION: the above address or call (202) 208– Kevin Gover, Notice of availability, draft 3550. Assistant Secretary—Indian Affairs. environmental impact statement. SUPPLEMENTARY INFORMATION: [FR Doc. 99–11312 Filed 05–05–99; 8:45 am] SUMMARY: In compliance with the The meetings are a follow-up to BILLING CODE 4310±02±P National Environmental Policy Act similar meetings conducted by the (NEPA) of 1969 and 40 CFR 1503.1(a), OIEP/BIA since 1990. The purpose of notice is hereby given that the Bureau the consultation, as required by 25 of Land Management (BLM) has U.S.C. 2010(b), is to provide Indian prepared a Draft Environmental Impact tribes, school boards, parents, Indian Statement (EIS) for the Transit Mixed organizations and other interested Concrete (TMC) Company Sand and parties with an opportunity to comment Gravel Mining Project proposed for
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24416 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices construction and operation off of mining operations and measures have (Phone: 801–539–4063 or E-mail: Soledad Canyon Road and State been incorporated into project design to [email protected]) or Holly Roberts, Highway 14, Los Angeles County, minimize erosion, provide watershed Planning Coordinator (Phone 801–539– California. The project site is within an control, and protect water quality in the 4272 or E-mail [email protected]), unincorporated area of the County, Santa Clara River. A full range of BLM, Utah State Office (Attention: north of Soledad Canyon Road, south of alternatives to the proposed action are Wilderness Project), PO Box 45155, Salt Antelope Valley Freeway, and west of considered in the Draft EIS. Lake City, Utah 84145. Agua Dulce Canyon. The project site is on ‘‘split-estate’’ Interested citizens are invited to lands where the surface is privately DATES: The formal scoping period for review the Draft EIS and submit owned and the minerals are federally- the subject amendments is now comments. Copies of the Draft EIS may owned and administered by the BLM. extended to June 21, 1999. Submission be obtained by telephoning or writing to Thus, the project is also subject to of written information by regular mail or the contact person listed below. Public approval of a Surface Mining Permit by electronic mail via Internet access at: reading copies of the Draft EIS are through preparation of an HTTP://WWW.UT.BLM.GOV/ available at the following County of Los Environmental Impact Report (EIR) in WILDERNESS will now be accepted Angeles public libraries: Canyon compliance with the California until June 21, 1999. Country Library, 18536 Soledad Canyon Environmental Quality Act (CEQA). The SUPPLEMENTARY INFORMATION: Issue Road, Santa Clarita, CA 91351; Newhall County of Los Angeles is the lead identification is considered integral to Library, 22704 W. Ninth Street, Santa agency responsible for preparation of the Environmental Impact Statement Clarita, CA 91321; Valencia Library, the EIR which has been prepared (EIS) and planning processes. Given the 23743 W. Valencia Boulevard, Santa concurrently with the EIS. extent of this statewide proposal, and at Clarita, CA 91355. FOR ADDITIONAL INFORMATION CONTACT: public request, the BLM authorizes an DATES: Comments must be submitted in Ms. Elena Misquez, BLM, Palm extention of the public scoping period. writing no later than July 6, 1999. Springs—South Coast Field Office, PO Comments on the preliminary issues, ADDRESSES: Written comments shall be Box 1260, North Palm Springs, CA alternatives and planning criteria will mailed to the following address: Mr. 92258, telephone 760–251–4804. now be accepted until June 21, 1999. James G. Kenna, Field Manager, Bureau Dated: April 30, 1999. Scoping comments should still of Land Management, Palm Springs— James G. Kenna, specifically address areas in the South Coast Field Office, 690 W. Garnet Field Manager. inventory that the BLM determined Avenue, PO Box 1260, North Palm [FR Doc. 99–11342 Filed 5–5–99; 8:45 am] have wilderness characteristics, Springs, California, 92258. Comments including: may also be submitted by electronic BILLING CODE 4310±40±P (a) Any additional information mail (e-mail) to the following address: concerning wilderness characteristics in Palm Springs FO CA–EMAIL. The DEPARTMENT OF THE INTERIOR the wilderness inventory units, response to comments will be provided in the Final EIS. Bureau of Land Management (b) Information regarding the PUBLIC MEETING: manageability of potential WSAs. Such On June 2, 1999, the [UT±99±940±1610±00] BLM will hold a public meeting for the information may address things such as purpose of receiving oral comments on valid existing rights which could be Extension of Scoping Period for the exercised (developed) within the next the scope and content of the Draft EIS. Statewide Environmental Impact There will be two sessions, from 4 to 5 ten to fifteen years and thereby preclude Statement (EIS) and Multiple Plan effective management under the IMP, p.m. and from 7 to 9 p.m. The public is Amendments To Consider invited to attend either session or both. Establishment of New Wilderness (c) Specific information on other The location of the meeting is at the Study Areas (WSAs) on Selected resource uses within each wildness Sulphur Springs Elementary School, Public Lands in Utah inventory unit which should be 16628 W. Lost Canyon Road, Canyon considered. Such uses could involve Country, CA 91351. AGENCY: Bureau of Land Management, grazing practices, rights of way, corridor SUPPLEMENTARY INFORMATION: TMC Interior. development and use, recreation plans to mine a total of 83 million tons NOTICE: Notice of extension of scoping development or mechanical uses, off of materials and produce and sell period for the statewide environmental highway vehicle use, development for approximately 56 million tons of Impact Statement (EIS) and multiple mineral extraction, or oil and gas Portland cement concrete sand and plan amendments to consider exploration and production, etc. gravel over a 20-year period. The project establishment of new wilderness study Dated: April 29, 1999. plan includes the transport of processed areas (WSAs) on selected public lands Linda S. Colville, in Utah. material off-site in trucks as either Acting State Director. SUMMARY: On March 18, 1999 (64 FR aggregate product or ready-mixed [FR Doc. 99–11341 Filed 5–5–99; 8:45 am] concrete. All proposed mining and 13439), the Bureau of Land Management BILLING CODE 4310±DQ±P processing operations are located north (BLM) published notice in the Federal of Soledad Canyon Road and outside the Register of a proposed multiple plan floodplain of the Santa Clara River and amendment process for up to 136 its tributaries. Mining will begin on the wilderness inventory areas on INTERNATIONAL TRADE south side of a northeast-southwest approximately 2.6 million acres of COMMISSION trending ridge on-site, and progress Federal land throughout Utah. Several through four successive excavation cuts. public inquiries have been received Submission for OMB Review; Fill areas for excess natural fines will be requesting extension of the public Comment Request established on the south and north sides scoping period for this proposal. of the ridge. Reclamation and FOR FURTHER INFORMATION CONTACT: AGENCY: United States International revegetation will be concurrent with Thomas F. Slater, Resource Manager Trade Commission.
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ACTION: Agency proposal for the to ensure that its procedures are fair and provided information for consideration collection of information submitted to equitably implemented. which was not provided during the the Office of Management and Budget The survey asks if the Commission’s original investigation. (OMB) for review; comment request. rules and other written guidance make clear to participants what the Conclusion SUMMARY: In accordance with the Commission expects of them After careful review of the provisions of the Paperwork Reduction procedurally in an investigation; if there application, I conclude that the claim is Act of 1995 (44 U.S.C. Ch. 35), the are area(s) where additional guidance of sufficient weight to justify Commission has submitted a proposal would be of benefit to their reconsideration of the Department of for the collection of information to OMB participation in investigations; if Labor’s prior decision. The application for approval. The proposed information Commission personnel responded to is, therefore, granted. collection is a survey to be sent to procedural inquiries in a helpful way; if Signed at Washington, DC this 21st day of participants in Commission injury their access to information collected by/ April 1999. investigations (primarily countervailing submitted to the Commission was Grant D. Beale, duty, antidumping, and safeguard satisfactory; if their opportunity to Acting Director, Office of Trade Adjustment investigations) to obtain feedback on the present information for consideration by Assistance. procedures used by the Commission in the Commission was satisfactory; and if [FR Doc. 99–11376 Filed 5–5–99; 8:45 am] the conduct of such investigations. Any they have any other comments or BILLING CODE 4510±30±M comments submitted to OMB on the recommended improvements. It will be proposed information collection should sent to firms that have participated in an be specific, indicating which parts of antidumping, countervailing duty, or DEPARTMENT OF LABOR the survey are objectionable, describing safeguard investigation during the the problem in detail, and including period October 1, 1998–September 30, Employment and Training specific revisions or language changes. 1999. Responses are voluntary. While Administration DATES: To be assured of consideration, the survey will be made available on the [TA±W±35,663 and TA±W±35,663H] comments should be submitted to OMB Commission’s Web site, responses must on or before June 7, 1999. be in paper form. Baker Hughes Inteq Headquartered in ADDRESSES: Comments about the The Commission estimates that the Houston, TX, Operating in the State of proposal should be directed to the survey will impose an average burden of West Virginia; Amended Certification Office of Information and Regulatory less than 1 response hour each on 50 Regarding Eligibility To Apply for Affairs, Office of Management and respondents. No recordkeeping burden Worker Adjustment Assistance Budget, New Executive Office Building, is known to result from the proposed In accordance with Section 223 of the Washington, DC 20503, Attention: collection of information. Trade Act of 1974 (19 U.S.C. 2273) the David Rossker, Desk Officer for U.S. By order of the Commission. International Trade Commission. Copies Department of Labor issued a Issued: April 30, 1999. of any comments should be provided to Certification of Eligibility to Apply for Donna R. Koehnke, Robert Rogowsky (U.S. International Worker Adjustment Assistance on Trade Commission, 500 E Street, SW, Secretary. March 25, 1999, applicable to all Washington, DC 20436). [FR Doc. 99–11412 Filed 5–5–99; 8:45 am] workers of Baker Hughes Inteq FOR FURTHER INFORMATION CONTACT: BILLING CODE 7020±02±P headquartered in Houston, Texas. The Copies of the proposed survey and notice will be published soon in the Supporting Statement submitted to Federal Register. At the request of the petitioners, the OMB are posted on the Commission’s DEPARTMENT OF LABOR Department reviewed the certification World Wide Web site at http:// Employment and Training for workers of the subject firm. New www.usitc.gov or may be obtained from Administration findings show that worker separations Lynn Featherstone, Office of have occurred at Baker Hughes Inteq Investigations, U.S. International Trade [TA±W±35,449A] operating at various locations in the Commission, telephone 202–205–3160. State of West Virginia. The workers are Hearing-impaired persons can obtain ARCO, dba ARCO Exploration and engaged in employment related to information on this matter by contacting Production Technology (AEPT) Plano, exploration and drilling of crude oil the Commission’s TDD terminal on 202– TX; Notice of Affirmative Determination wells for unaffiliated customers. 205–1810. Persons with mobility Regarding Application for Reconsideration The intent of the Department’s impairments who will need special certification is to include all workers of assistance in gaining access to the By letter of April 5, 1999, the Baker Hughes Inteq adversely affected Commission should contact the Office petitioners requested administration by increased imports. Accordingly, the of the Secretary at 202–205–2000. reconsideration of the Department of Department is amending the General information concerning the Labor’s Notice of Negative certification to cover workers of Baker Commission may also be obtained by Determination Regarding Eligibility to Hughes Inteq operating at various accessing its internet server. Apply for Worker Adjustment locations in the State of West Virginia. SUPPLEMENTARY INFORMATION: In its Assistance, applicable to petition The amended notice applicable to Strategic Plan (also available on the number TA–W–35,449A. The denial TA–W–35,663 is hereby issued as agency’s World Wide Web site), the notice was signed on February 24, 1999 follows: Commission set itself the goal of and will soon be published in the All workers of Baker Hughes Inteq, obtaining feedback on investigative Federal Register. Headquartered in Houston, Texas (TA–W– procedures from users of the agency’s The petitioners allege that the workers 35,663) and operating at various locations in import injury investigation process. The at ARCO Exploration and Production the State of West Virginia (TA–W–35,663H) proposed 1-page survey seeks to gather Technology (AEPT) are engaged in who became totally or partially separated that feedback to allow the Commission domestic exploration of oil and gas and from employment on or after February 2,
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1998 through March 25, 2001 are eligible to Signed at Washington, DC this 23rd day of totally or partially separated from apply for adjustment assistance under April, 1999. employment on or after October 1, 1998 Section 223 of the Trade Act of 1974. Grant D. Beale, through February 19, 2001 are eligible to Signed at Washington, D.C. this 20th day Acting Director, Office of Trade Adjustment apply for adjustment assistance under of April, 1999. Assistance. Section 223 of the Trade Act of 1974.’’ Grant D. Beale, [FR Doc. 99–11374 Filed 5–5–99; 8:45 am] Signed at Washington, D.C. this 12th day Acting Director, Office of Trade Adjustment BILLING CODE 4510±30±M of April, 1999. Assistance. Grant D. Beale, [FR Doc. 99–11377 Filed 5–5–99; 8:45 am] Acting Director, Office of Trade Adjustment BILLING CODE 4510±30±M DEPARTMENT OF LABOR Assistance. Employment and Training [FR Doc. 99–11380 Filed 5–5–99; 8:45] DEPARTMENT OF LABOR Administration BILLING CODE 4510±30±M [TA±W±35,309 and TA±W±35,309Q] Employment and Training DEPARTMENT OF LABOR Administration BP/AMOCO (Formerly Amoco Corporation) Amoco Exploration and Employment and Training [TA±W±35,711AA, TA±W±35,711AS and TA± Production Amoco Shares Services Administration W±35, 711AT] A/K/A Amoco Production Company, Inc. Headquartered in Houston, Texas Baroid Drilling Fluids Headquartered in Operating in the State of Tennessee; [TA±W±35,600] Houston, TX and Operating in the Amended Certification Regarding EXOLON±ESK Company Tonawanda, Following States; Mississippi, Eligibility to Apply for Worker NY; Amended Certification Regarding Alabama; Amended Certification Adjustment Assistance Regarding Eligibility To Apply for Eligibility To Apply for Worker Worker Adjustment Assistance In accordance with Section 223 of the Adjustment Assistance Trade Act of 1974 (19 U.S.C. 2273) the In accordance with Section 223 of the Department of Labor issued a In accordance with Section 223 of the Trade Act of 1974 (19 USC 2273) the Certification of Eligibility to Apply for Trade Act of 1974 (19 U.S.C. 2273), the Department of Labor issued a Worker Adjustment Assistance on Department of Labor issued a Notice of Certification of Eligibility to Apply for February 19, 1999, applicable to Certification Regarding Eligibility to Worker Adjustment Assistance on workers of Amoco Exploration and Apply for Worker Adjustment March 22, 1999, applicable to all Production and Amoco Shared Services, Assistance on April 12, 1999, applicable workers of Baroid Drilling Fluids Headquartered in Houston, Texas and to workers of EXOLON–ESK Company headquartered in Houston, Texas. The operating at various locations in Texas located in Tonawanda, New York. The notice will be published soon in the and other States. The certification was notice will be published soon in the Federal Register. subsequently amended to reflect a Federal Register. company name change and to include At the request of the company, the At the request of the company, the workers whose wages were reported Department reviewed the certification Department reviewed the certification under a separate Unemployment for workers of the subject firm. New for workers of the subject firm. The Insurance tax account. The amended findings show that worker separations workers were engaged in the production notice was published in the Federal have occurred at Baroid Drilling Fluids of silicon carbide and aluminum oxide. Register on April 6, 1999 (64 FR 16755). operating at various locations in Findings show that the Department At the request of the State agency, the Mississippi and Alabama. The workers incorrectly set the worker certification Department reviewed the certification are engaged in various activities related impact date at December 28, 1998. The for workers of the subject firm. New to the drilling for crude oil and natural impact date should be December 28, information provided by the State show gas. 1997, one year prior to the date of the that worker separations have occurred petition. Accordingly, the Department is The intent of the Department’s in Tennessee for Amoco workers certification is to include all workers of amending the certification to reflect this engaged in activities related to matter. Baroid Drilling Fluids adversely affected exploration and production of crude oil by increased imports. Accordingly, the and natural gas. The amended notice applicable to Department is amending the The intent of the Department’s TA–W–35,600 is hereby issued as certification to cover workers of Baroid certification is to include all workers of follow: Drilling Fluids operating at various the subject firm who are adversely All workers of EXOLON–-ESK Company, locations in Mississippi and Alabama. affected by increased imports. Tonawanda, New York who became totally or The amended notice applicable to Accordingly, the Department is partially separated from employment on or TA–W–35,711AA is hereby issued as amending the certification to include after December 28, 1997 through April 12, follows: the subject firm workers in Tennessee. 2001 are eligible to apply for adjustment The amended notice applicable to assistance under Section 223 of the Trade Act ‘‘All workers of Baroid Drilling Fluids, of 1974. headquartered in Houston, Texas (TA–W– TA–W–35,309 is hereby issued as 35,711AA), operating at various locations in follows: Signed at Washington, D.C. this 20 day of Mississippi (TA–W–35,711AS) and Alabama ‘‘All workers and BP/Amoco (Formerly April 1999. (TA–W–35,711AT) who became totally or Amoco Corporation), Amoco Exploration and Grant D. Beale, partially separated from employment on or Production, Amoco Shares Services, also Acting Director, Office of Trade Adjustment after February 17, 1998 through March 22, known as Amoco Production Company, Inc., Assistance. 2001 are eligible to apply for adjustment headquartered in Houston, Texas (TA–W– assistance under Section 223 of the Trade Act 35,309) and operating in the State of [FR Doc. 99–11375 Filed 5–5–99; 8:45 am] of 1974.’’ Tennessee (TA–W–35,309Q), who became BILLING CODE 4510±30±M
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DEPARTMENT OF LABOR Signed at Washington, D.C., this 22nd day those firms acquired by Key Energy of April 1999. Services, Inc., Rocky Mountain Employment and Training Grant D. Beale, Division. Additionally, workers of J.W. Administration Acting Director, Office of Trade Adjustment Gibson Well Service in Williston, North Assistance. Dakota were certified eligible to apply [TA±W±35,123] [FR Doc. 99–11382 Filed 5–5–99; 8:45 am] for TAA on August 11, 1998, petition BILLING CODE 4510±30±M number TA–W–34,818. Since that Guilford Fibers, Incorporated certification does not expire until Gainesville, GA; Notice of Affirmative August 11, 2000, the earliest impact Determination Regarding Application DEPARTMENT OF LABOR date that can be established to cover any for Reconsideration workers of Key Energy Services, Inc., Employment and Training Rocky Mountain Division, formerly By letter of February 19, 1999 the Administration employed by J.W. Gibson Well Service company requested administrative [TA±W±35,486; TA±W±35,486A; TA±W± in Williston, North Dakota, is Asugust reconsideration of the Department of 35,486B; and TA±W±35,486C] 12, 2000. Labor’s Notice of Negative The amended notice applicable to Determination Regarding Eligibility to Key Energy Services, Inc.ÐRocky TA–W–35,486 is hereby issued as Apply for Worker Adjustment Mountain Division, A/K/A Frontier Well follows: Assistance, applicable to petition Service, A/K/A Teton Well Service, A/K/ All workers of Key Energy Services, Inc., number TA–W–35,123. The denial A Dunbar Well Service, A/K/A Updike Rocky Mountain Division, also known as notice was signed on January 29, 1999 Brothers Well Service, A/K/A Flint Frontier Well Service, also known as Teton and will soon be published in the Engineering and Construction and A/K/ Well Service, also known as Dunbar Well Federal Register. A J.W. Gibson Well Service; Williston, Service, also known as Updike Brothers Well The company provided additional ND and Operating at Various Locations Service, also known as Flint Engineering and Construction, Williston, North Dakota (TA– information regarding its decision to in: North Dakota, Montana and Wyoming; Amended Certification W–35,486), and operating at various close the Gainesville facility which locations in North Dakota (TA–W–35,486A), warrants review and supports Regarding Eligibility To Apply for Montana (TA–W–35,486B) and Wyoming reconsideration of the case. Worker Adjustment Assistance (TA–W–35,486C), who became totally or partially separated from employment on or Conclusion In accordance with Section 223 of the after December 23, 1997 through February 17, Trade Act of 1974 (19 U.S.C. 2273) the 2001; and all workers of Key Energy Services, After careful review of the Department of Labor issued a Inc., Rocky Mountain Division, also known application, I conclude that the claim is Certification Regarding Eligibility to as J.W. Gibson Well Service, Williston, North of sufficient weight to justify Apply for Worker Adjustment Dakota, who became totally or partially reconsideration of the Department of Assistance on February 17, 1999, separated from employment on or after Labor’s prior decision. The application applicable to workers of Key Energy August 12, 2000 through February 17, 2001, is, therefore, granted. Services, Inc., Rocky Mountain are eligible to apply for worker adjustment assistance under Section 223 of the Trade Act Signed at Washington, D.C. this 23rd day Division, Williston, North Dakota, and of 1974. of April 1999. operating at various locations in North Signed at Washington, D.C. this 15th day Grant D. Beale, Dakota and Montana. The notice will of April 1999. Acting Director, Office of Trade Adjustment soon be published in the Federal Grant D. Beale, Assistance. Register. At the request of the company, the Acting Director, Office of Trade Adjustment [FR Doc. 99–11373 Filed 5–5–99; 8:45 am] Assistance. BILLING CODE 4510±30±M Department reviewed the certification for workers of the subject firm. New [FR Doc. 99–11378 Filed 5–5–99; 8:45 am] information provided by the company BILLING CODE 4510±30±M DEPARTMENT OF LABOR reveal that worker separations have occurred at Key Energy Services, Inc., DEPARTMENT OF LABOR Employment and Training Rocky Mountain Division, at locations Administration in the State of Wyoming. Other findings Employment and Training on review show that Key Energy Administration [TA±W±36,000] Services Inc., Rocky Mountain Division has acquired several companies in the [TA±W±35,615] Guilford Mills, Inc. Herkimer, NY; recent past, Frontier Well Service, Teton Notice of Termination of Investigation Shape Global Sanford, Maine; Well Service, Dunbar Well Service, Amended Certification Regarding Updike Brothers Well Service, Flint Pursuant to Section 221 of the Trade Eligibility to Apply for Worker Engineering and Construction, and J.W. Adjustment Assistance Act of 1974, an investigation was Gibson Well Service. The workers initiated on April 12, 1999 in response provide oilfield services for unaffiliated In accordance with Section 223 of the to a worker petition filed on behalf of customers. Trade Act of 1974 (19 U.S.C. 2273) the workers at Guilford Mills, Inc., The intent of the Department’s Department of Labor issued a Notice of Herkimer, New York (TA–W–36,000). certification is to cover all workers of Certification Regarding Eligibility to The petitioning group of workers are Key Energy Services, Inc., Rocky Apply for Worker Adjustment covered under an existing Trade Mountain Division, who were adversely Assistance on April 14, 1999, applicable Adjustment Assistance certification affected by increased imports. to workers of Shape Global, Sanford, (TA–W–35,564). Consequently, further Accordingly, the Department is Maine. The notice will soon be investigation in this case would service amending the certification to expand published in the Federal Register. no purpose, and the investigation has coverage to all workers of the subject At the request of the State agency, the been terminated. firm in Wyoming and to workers of Department reviewed the certification
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To avoid an overlap in worker became totally or partially separated from All workers of Union Pacific Fuels, group coverage, the certification for employment on or after November 10, 1997 Incorporated, a subsidiary of Union Pacific TVA–W–35,615 is being amended to through December 4, 2000 are eligible to Resources Company, and Union Pacific change the impact date to April 24, apply for adjustment assistance under Resources Company, a division of Union 1999. Section 223 of the Trade Act of 1974.’’ Pacific Resources Group, Incorporated, Signed at Washington, D.C. this 23rd day headquartered in Forth Worth, Texas (TA– The amended notice applicable to of April 1999. W–35,465), and operating in Kansas (TA–W– TA–W–35,615 is hereby issued as Grant D. Beale, 35,465G) and New Mexico (TA–W–35,465H), follows: Acting Director, Office of Trade Adjustment who became totally or partially separated ‘‘All workers of Shape Global, Sanford, Assistance. from employment on or after December 14, 1997 through January 21, 2001, are eligible to Maine, who became totally or partially [FR Doc. 99–11371 Filed 5–5–99; 8:45 am] separated from employment on or after April apply for adjustment assistance under section 24, 1998 through April 14, 2001 are eligible BILLING CODE 4510±30±M 223 of the Trade Act of 1974. to apply for adjustment assistance under Signed at Washington, D.C. this 19th day Section 223 of the Trade Act of 1974.’’ of April 1999. DEPARTMENT OF LABOR Signed at Washington, D.C. this 23rd day Grant D. Beale, of April 1999. Employment and Training Acting Director, Office of Trade Adjustment Grant D. Beale, Administration Assistance. Acting Director, Office of Trade Adjustment [FR Doc. 99–11379 Filed 5–5–99; 8:45 am] [TA±W±35,465; TA±W±35,465G and TA±W± Assistance. BILLING CODE 4510±30±M 35,465H] [FR Doc. 99–11372 Filed 5–5–99; 8:45 am] BILLING CODE 4510±30±M Union Pacific Fuels, Incorporated, a DEPARTMENT OF LABOR Subsidiary of Union Pacific Resources Company, and Union Pacific DEPARTMENT OF LABOR Employment and Training Resources Company a Division of Administration Employment and Training Union Pacific Resources Group Administration Incorporated Headquartered in Fort Investigations Regarding Certifications Worth, TX and Operating in the of Eligibility to Apply for Worker Following States; Kansas and New Adjustment Assistance [TA±W±35,240] Mexico; Amended Certification Petitions have been filed with the Siemens Energy & Automation Regarding Eligibility To Apply for Worker Adjustment Assistance Secretary of Labor under Section 221(a) Industrial Products DivisionÐNema of the Trade Act of 1974 (‘‘the Act’’) and Motors, Little Rock, Arkansas; In accordance with Section 223 of the are identified in the Appendix to this Amended Certification Regarding Trade Act of 1974 (19 USC 2273) the notice. Upon receipt of these petitions, Eligibility To Apply for Worker Department of Labor issued a the Acting Director of the Office of Adjustment Assistance Certification of Eligibility to Apply for Trade Adjustment Assistance, Worker Adjustment Assistance on Employment and Training In accordance with Section 223 of the January 21, 1999, applicable to workers Administration, has instituted Trade Act of 1974 (19 U.S.C. 2273), the of Union Pacific Fuels, Incorporated, a investigations pursuant to Section Department of Labor issued a Notice of subsidiary of Union Pacific Resources 221(a) of the Act. Certification Regarding Eligibility to Company, and Union Pacific Resources The purpose of each of the Apply for Worker Adjustment Company, a division of Union Pacific investigations is to determine whether Assistance on December 4, 1998, Resources Group Incorporated the workers are eligible to apply for applicable to workers of Siemens Energy headquartered in Fort Worth, Texas. adjustment assistance under Title II, & Automation Industrial Products The notice was published in the Federal Chapter 2, of the Act. The investigations Division—NEMA Motors located in Register on February 25, 1999 (64 FR will further relate, as appropriate, to the Little Rock, Arkansas. The notice was 9354). determination of the date on which total published in the Federal Register on At the request of the company, the or partial separations began or December 23, 1998 (63 FR 71165). Department reviewed the certification threatened to begin and the subdivision At the request of the State agency, the for workers of the subject firm. The of the firm involved. Department reviewed the certification company reports that workers have been The petitions or any other persons for workers of the subject firm. The separated from employment at the showing a substantial interest in the workers were engaged in the production subject firm’s Kansas and Wyoming subject matter of the investigations may of electric induction three phase motors. locations. The workers are engaged in request a public hearing, provided such Findings show that the Department employment related to the production of request is filed in writing with the incorrectly set the worker certification crude oil, natural gas and natural gas Acting Director, Office of Trade impact date at November 10, 1998. The liquids. Adjustment Assistance, at the address impact date should be November 10, The intent of the Department’s shown below, not later than May 17, 1997, one year prior to the date of the certification is to provide coverage to all 1999. petition. Accordingly, the Department is workers of the subject firm adversely Interested persons are invited to amending the certification to reflect this affected by increased imports. submit written comments regarding the matter. Accordingly, the Department is subject matter of the investigations to
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APPENDIX [Petitions instituted on 04/05/99]
Date of TA±W Subject firm (petitioners) Location petition Product(s)
35,962 ...... Wilson Supply (Wrks) ...... Houston, TX ...... 03/17/99 Distribute Oilfield Tools and Equipment. 35,963 ...... OshKosh B'Gosh, Inc (Comp) ...... Celina, TN ...... 03/24/99 Wash and Press Garments. 35,964 ...... Avery Dennison (Comp) ...... Rancho Cucamong, 03/24/99 Rools and Sheets of Paper and Film. CA. 35,965 ...... Uniroyal Chemical Co (USWA) ...... Painesville, OH ...... 03/22/99 Nitrile Rubber. 35,966 ...... Smith Food and Vending (Wrks) ...... Joplin, MO ...... 03/18/99 Provides Food Service. 35,967 ...... Siemens Information (Wrks) ...... Cherry Hill, NJ ...... 03/18/99 Telephone Systems. 35,968 ...... Mark Steel Jewelry (Wrks) ...... Spring City, NJ ...... 03/05/99 Costume Jewelry. 35,969 ...... Buster Brown Apparel (Comp) ...... Norton, VA ...... 03/16/99 Children's Apparel. 35,970 ...... Glenoit Corp (UNITE) ...... Jacksboro, TN ...... 03/18/99 Fleece Fabric. 35,971 ...... Barry Callebaut USA, (Wrks) ...... Pennsauken, NJ ...... 03/19/99 Cocoa Powders. 35,972 ...... M. Wile and Co (Comp) ...... Whiteville, NC ...... 03/19/99 Mens' Suits and Sportcoats. 35,973 ...... EST (Wrks) ...... Pittsfield, ME ...... 03/26/99 Smoke Alarms. 35,974 ...... Lou Levy and Sons Fashion (Comp) ...... New York, NY ...... 03/16/99 Ladies' Coats. 35,975 ...... Goodyear Tire and Rubber (USWA) ...... Logan, OH ...... 03/26/99 Instrument Panels for Automobiles. 35,976 ...... Revere Ware (Comp) ...... Clinton, IL ...... 03/19/99 Stainless Steel Cookware. 35,977 ...... A and M Manufacturing (Wrks) ...... Cosby, MO ...... 03/22/99 Machined Metal Pins. 35,978 ...... Acordis Cellulosic Fibers (Comp) ...... Axis, AL ...... 03/19/99 Tencel Fiber. 35,979 ...... Vishay Sprague (Wrks) ...... Concord, NH ...... 03/17/99 Tantalum Capacitors. 35,980 ...... International Paper (Comp) ...... Corinth, NY ...... 03/16/99 Paper. 35,981 ...... Corning, Inc. (Wrks) ...... Greenville, OH ...... 03/01/99 Cookware. 35,982 ...... Logistix (Wrks) ...... Freemong, CA ...... 03/08/99 Electronic Printing. 35,983 ...... Good Lad Corp (Wrks) ...... Philadelphia, PA ...... 03/19/99 Children's and Infants Apparel. 35,984 ...... Royal Mandarin (Wrks) ...... Beaver Falls, PA ...... 03/24/99 Commercial China. 35,985 ...... Emerson Electric Co (Comp) ...... Independence, KS ...... 03/20/99 Fractional Horsepower Electric Motors. 35,986 ...... BASF (Wrks) ...... Detroit, MI ...... 03/25/99 Paint, Resins & Colorants. 35,987 ...... Calgon Carbon Corp (Wrks) ...... Catlettsburg, KY ...... 03/23/99 Coal Based Activated Carbon. 35,988 ...... Mitsubishi International (Wrks) ...... Durham, NC ...... 02/26/99 WarehouseÐMemory Chips. 35,989 ...... LeTourneau, Inc (Comp) ...... Longview, TX ...... 03/23/99 Steel Plate, Front End Loaders. 35,990 ...... Magestic Shapes (Wrks) ...... Bronx, NY ...... 03/11/99 Shoulder Pads. 35,991 ...... Miller Brothers Ind., Inc (Comp) ...... Corsicana, TX ...... 03/23/99 Constructed Caps. 35,992 ...... Bayer Corporation (Wrks) ...... Baytown, TX ...... 03/03/99 Baypren Polychloroprene. 35,993 ...... Duet Textiles, Inc (Comp) ...... New York, NY ...... 03/12/99 Greige Goods. 35,994 ...... National Roll Company (USWA) ...... Avonmore, PA ...... 03/26/99 Mills Rolls for Flat Rolled Steel. 35,995 ...... Mid Oregon Industries (Comp) ...... Bend, OR ...... 03/25/99 Wood Working Machinery. 35,996 ...... Quicksilver Contracting (Comp) ...... Bend , OR ...... 03/25/99 Wood Chips. 35,997 ...... Beau Mode (Comp) ...... New York, NY ...... 03/24/99 Ladies' Apparel. 35,998 ...... GWW, Inc (Wrks) ...... Elkhorn, Wi ...... 03/05/99 Carring Cases.
[FR Doc. 99–11370 Filed 5–5–99; 8:45 am] TAA), and in accordance with Section Signed in Washington, DC this 22nd day of BILLING CODE 4510±30±M 250(a), Subchapter D, Chapter 2, Title II, April, 1999. of the Trade Act of 1974, as amended Grant D. Beale, (19 U.S.C. 2273), and investigation was Acting Director, Office of Trade Adjustment DEPARTMENT OF LABOR initiated on April 12, 1999, in response Assistance. to a worker petition which was filed on Employment and Training [FR Doc. 99–11381 Filed 5–5–99; 8:45 am] Administration behalf of workers at Oro Nevada BILLING CODE 4510±30±M Exploration, Incorporated of Reno, Nevada. [NAFTA±3094] The petitioner did not file a valid Oro Nevada Exploration, Incorporated petition; only two workers signed to Reno, NV; Notice of Termination of petition, and one of the petitioners was Investigation laid off more than a year before the petition was submitted. Consequently Pursuant to Title V of the North American Free Trade Agreement further investigation in this case would Implementation Act (P.L. 103–182) serve no purpose, and the investigation concerning transitional adjustment has been terminated. assistance, hereinafter called (NAFTA–
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DEPARTMENT OF LABOR (b) They are in the interests of the independent fiduciary capacity with plans and their participants and respect to the transactions described Pension and Welfare Benefits beneficiaries; and herein; and Administration (c) They are protective of the rights of (9) The conditions of Prohibited [Prohibited Transaction Exemption 99±16; the participants and beneficiaries of the Transaction Exemption (PTE) 93–71 (58 Exemption Application No. D±10693, et al.] plans. FR 51109, September 30, 1993) have been met. PTE 93–71, which expired Standard Bank Employees Profit Grant of Individual Exemptions; September 30, 1998, provided Sharing Plan (the Plan) Located in Standard Bank Employees Profit prospective relief for the purchases by Hickory Hills, Illinois Sharing Plan, et al. the Plan of certain Notes from the [Prohibited Transaction Exemption 99–16; Employer.1 AGENCY: Pension and Welfare Benefits Exemption Application No. D–10693] Administration, Labor. Part II. Repurchases of Residential Exemption Mortgage Notes ACTION: Grant of individual exemptions. The restrictions of sections 406(a), The restrictions of sections 406(a), SUMMARY: This document contains 406 (b)(1) and (b)(2) of the Act and the 406(b)(1) and (b)(2) of the Act and the exemptions issued by the Department of sanctions resulting from the application sanctions resulting from the application Labor (the Department) from certain of of section 4975 of the Code, by reason of section 4975 of the Code, by reason the prohibited transaction restrictions of of section 4975(c)(1) (A) through (E) of of section 4975(c)(1)(A) through (E) of the Employee Retirement Income the Code, shall not apply, as of October the Code, shall not apply to the Security Act of 1974 (the Act) and/or 1, 1998, to the purchases by the Plan of repurchases of the Notes (the the Internal Revenue Code of 1986 (the certain residential mortgage notes (the Repurchases) by the Employer: (a) In the Code). Notes) from Standard Bank and Trust event of default; (b) if the limitations set Notices were published in the Federal Company (the Employer), a party in forth in Part I (6) and/or (7) are Register of the pendency before the interest with respect to the Plan; exceeded; and (c) at other times as Department of proposals to grant such provided that the following conditions determined by the independent exemptions. The notices set forth a are satisfied: fiduciary,2 provided that the summary of facts and representations (1) An independent qualified Repurchases will be at a price which is contained in each application for fiduciary will decide which Notes will equal to the greater of the outstanding exemption and referred interested be purchased for the Plan; principal balance of the Note plus persons to the respective applications (2) Only first mortgage Notes will be accrued interest through the date of for a complete statement of the facts and purchased by the Plan; repurchase, or the current fair market representations. The applications have (3) The Notes which will be value of the Note as determined by the been available for public inspection at purchased by the Plan will have: (a) A independent fiduciary. the Department in Washington, DC. The borrower payment history with the EFFECTIVE DATE: This exemption is notices also invited interested persons Employer of at least three months; (b) A effective as of October 1, 1998. to submit comments on the requested maximum 15 year maturity; and (c) the For a more complete statement of the exemptions to the Department. In loan to value ratio of the collateral will facts and representations supporting the addition the notices stated that any be at least 150% of the principal amount Department’s decision to grant this interested person might submit a of the Note; exemption, refer to the notice of written request that a public hearing be (4) If the mortgage loan is an original proposed exemption (the Notice) held (where appropriate). The acquisition mortgage loan, the Note will published on February 16, 1999 at 64 FR applicants have represented that they not exceed two-thirds of the lower of the 7672. have complied with the requirements of purchase price or of the appraised value Written Comments the notification to interested persons. of the collateral mortgaged by the No public comments and no requests for borrower to the Employer to secure the The Department received one written a hearing, unless otherwise stated, were Note; comment with respect to the Notice and received by the Department. (5) If the mortgage loan is a no requests for a public hearing. The The notices of proposed exemption refinancing of the original acquisition comment was filed by the Employer and were issued and the exemptions are mortgage loan, the Note will not exceed states that paragraph 1 of the Summary being granted solely by the Department two-thirds of the appraised value of the of Facts and Representations contained because, effective December 31, 1978, collateral mortgaged by the borrower to in the Notice incorrectly states that section 102 of Reorganization Plan No. the Employer to secure the Note; Deloitte & Touche are the accountants 4 of 1978 (43 FR 47713, October 17, (6) No more than twenty-five percent for the Plan. The Plan accountants are Desmond & Ahern, Ltd. Certified Public 1978) transferred the authority of the (25%) of the value of the Plan’s total Accountants. Secretary of the Treasury to issue assets will be invested in the Notes; exemptions of the type proposed to the (7) No more than ten percent (10%) of 1 The applicant represents that, as mandated by Secretary of Labor. the value of the Plan’s total assets will PTE 93–71, the Employer has filed Form 5330 be invested in any one Note or Notes to (Return of Initial Excise Taxes for Pension and Statutory Findings any one borrower; Profit Sharing Plans) and paid the applicable excise In accordance with section 408(a) of (8) The fees received by the taxes for certain past purchases by the Plan of the Notes from the Employer which occurred prior to the Act and/or section 4975(c)(2) of the independent fiduciary for serving in the effective date of PTE 93–71. Code and the procedures set forth in 29 that capacity with respect to the Plan for 2 The Department notes that if a violation of any CFR part 2570, subpart B (55 FR 32836, the transactions described herein, of the terms and conditions of Part I occurs, the 32847, August 10, 1990) and based upon combined with any other fees derived exemptive relief provided by Part I for purchases of the entire record, the Department makes from the Employer or related parties, the Notes by the Plan will no longer be available. will not exceed one percent (1%) of his However, the Department further notes that the loss the following findings: of exemption under Part I will not affect the use of (a) The exemptions are gross annual income for each fiscal year Part II to dispose of the Notes previously acquired administratively feasible; that he continues to serve in the by the Plan pursuant to the exemption.
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The Department concurs with this Plan will use the Property for parking. Company (Northern), the Plan’s trustee correction. Thereafter, it is anticipated that the and a party in interest with respect to FOR FURTHER INFORMATION CONTACT: fiduciaries of the Welfare Plan will the Plan, for $93,552.93 in cash, Ekaterina A. Uzlyan of the Department, contract for a study regarding the provided the following conditions are telephone (202) 219–8883. (This is not feasibility of constructing new satisfied: (a) The sale is a one-time a toll-free number.) classroom facilities. transaction for cash; (b) no commissions In this regard, the Department notes are charged in connection with the Plumbers and Pipefitters National that the Act’s standards of fiduciary transaction; (c) the Plan receives not less Pension Fund (the Pension Plan) and conduct will apply to the purchase and than the fair market value of the Pipefitters Local No. 211 Joint ultimate development of the Property. Interests at the time of the transaction; Educational Trust (the Welfare Plan) Section 404(a)(1) of the Act requires that and (d) the fair market value of the (Collectively, the Plans) Located in a fiduciary discharge his or her duties Interests is determined by a qualified Alexandria, VA and Houston, TX, with respect to a plan solely in the entity independent of the Plan and of respectfully interest of the participants and Northern. [Prohibited Transaction Exemption No. 99– beneficiaries and with the care, skill, For a more complete statement of the 17 Application Nos. D–10700 and L–10709] prudence and diligence under the facts and representations supporting the circumstances then prevailing that a Exemption Department’s decision to grant this prudent person acting in a like capacity exemption refer to the notice of The restrictions of sections 406(a) of and familiar with such matters would proposed exemption published on the Act and the sanctions resulting from use in the conduct of a enterprise of a March 8, 1999 at 64 FR 11062. the application of section 4975 of the like character and with like aims. FOR FURTHER INFORMATION CONTACT: Gary Code, by reason of section 4975(c)(1)(A) Accordingly, the fiduciaries of the H. Lefkowitz of the Department, through (D) of the Code, shall not apply Welfare Plan must act ‘‘prudently’’ with telephone (202) 219–8881. (This is not to the sale (the Sale) of certain real respect to the decision to purchase the a toll-free number.) property (the Property) by the Pension Property, as well as to the ultimate Plan to the Welfare Plan, a party in development of the Property (including vonRoll isola Savings Plan (the Plan) interest with respect to the Pension where relevant, the determination as to Located in Schenectady, New York Plan; provided the following conditions whether to develop the Property, the types of improvements that are [Prohibited Transaction Exemption 99–19; are satisfied: Exemption Application No. D–10729] (A) The terms and conditions of the appropriate and the Plan’s ability to transaction are no less favorable to the finance any such improvements). The Exemption Pension Plan and the Welfare Plan than granting of this exemption should not be The restrictions of sections 406(a), those which either the Pension Plan or viewed as an endorsement by the 406(b)(1) and (b)(2) of the Act and the the Welfare Plan would receive in an Department of the Plan’s subsequent use sanctions resulting from the application arm’s-length transaction with an of such Property. Finally, we note that, of section 4975 of the Code, by reason unrelated party; if the decision by the fiduciaries to of section 4975(c)(1)(A) through (E) of (B) The Sale is a one-time transaction purchase and develop the Property is the Code, shall not apply to: (1) The for cash; not prudent, the fiduciaries would be making by State Street Bank and Trust (C) The Pension Plan and the Welfare liable for any loss resulting from such Company (the Bank) of interest-free Plan incur no expenses, fees, or breach even though the purchase of the advances of cash (the Advances) to the commissions from the Sale other than Property was the subject of an Plan during the period from July 8, 1997 their own respective appraisal, administrative exemption. through June 22, 1998, in the aggregate recording, and legal expenses; For a more complete statement of the amount of $824,812.60; and (2) the (D) The Welfare Plan pays as facts and representations supporting the repayment of the Advances by the Plan, consideration for the Property no more Department’s decision to grant this without interest, on June 22, 1998, than the fair market value of the exemption, refer to the notice of provided the following conditions were Property as determined by a qualified, proposed exemption published on satisfied: independent appraiser on the date of the January 27, 1999, at 64 FR 4142. (a) No interest or expense was Sale; FOR FURTHER INFORMATION CONTACT: Mr. (E) The Pension Plan sells the incurred by the Plan in connection with C. E. Beaver of the Department, the Advances; Property for a price that is not less than telephone (202) 219–8881. (This is not (b) The proceeds of the Advances the fair market value of the Property as a toll-free number.) determined by qualified, independent were used only to facilitate the payment appraiser on the date of the Sale; and State Bankshares Inc. 401(k) Profit of benefits (including participant loans (F) The fiduciaries for the Pension Sharing Plan (the Plan) Located in and in-service withdrawals) to Plan Plan and the Welfare Plan, respectfully, Fargo, North Dakota participants, and to facilitate the making will enforce the terms of the exemption. [Prohibited Transaction Exemption 99–18; of investment transfers elected by Plan Written Comments: The Department Exemption Application No. D–10703] participants; received five written comments which (c) The Advances were unsecured; were found to be not relevant to the Exemption (d) The Plan participants who transaction; and therefore, the The restrictions of sections 406(a), remained invested in the Plan’s stable Department has determined to grant the 406(b)(1) and (b)(2) of the Act and the value fund, which consisted primarily exemption as proposed. sanctions resulting from the application of a Group Flexible Annuity Contract Correspondence received from the of section 4975 of the Code, by reason (the GIC) from the Travelers Insurance applicant’s representative during the of section 4975(c)(1)(A) through (E) of Company (Travelers), continued to comment period stated that the Welfare the Code, shall not apply to the receive the full contract rate on the full Plan is interested in purchasing the proposed sale by the Plan of certain amount of the GIC; Property in part for future expansion. limited partnership interests (the (e) The Plan’s sponsor was notified of Initially, upon purchase, the Welfare Interests) to Northern Capital Trust the Advances;
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(f) The repayment of the Advances General Information NATIONAL ARCHIVES AND RECORDS was made at the direction of the Plan’s ADMINISTRATION sponsor and was restricted to amounts The attention of interested persons is received from the proceeds of the directed to the following: Records Schedules; Availability and installment payments made by Travelers (1) The fact that a transaction is the Request for Comments under the GIC, and no other plan assets subject of an exemption under section AGENCY: National Archives and Records were used for that purpose; 408(a) of the Act and/or section Administration, Office of Records (g) The Bank will maintain or cause 4975(c)(2) of the Code does not relieve Services—Washington, DC. to be maintained for a period of six a fiduciary or other party in interest or ACTION: Notice of availability of years from the date of the granting of the disqualified person from certain other proposed records schedules; request for exemption proposed herein the records provisions to which the exemptions comments. necessary to enable the persons does not apply and the general fiduciary described in paragraph (h) to determine responsibility provisions of section 404 SUMMARY: The National Archives and whether the conditions of this of the Act, which among other things Records Administration (NARA) exemption have been met, except that: require a fiduciary to discharge his publishes notice at least once monthly of certain Federal agency requests for (1) A prohibited transaction will not duties respecting the plan solely in the records disposition authority (records be considered to have occurred, if due interest of the participants and schedules). Once approved by NARA, to circumstances beyond the control of beneficiaries of the plan and in a the Bank, the records are lost or records schedules provide mandatory prudent fashion in accordance with destroyed prior to the end of the six year instructions on what happens to records section 404(a)(1)(B) of the Act; nor does period; and when no longer needed for current it affect the requirement of section (2) No party in interest, other than the Government business. They authorize 401(a) of the Code that the plan must Bank, shall be subject to the civil the preservation of records of penalty that may be assessed under operate for the exclusive benefit of the continuing value in the National section 502(i) of the Act, or to the taxes employees of the employer maintaining Archives of the United States and the imposed by section 4975(a) and (b) of the plan and their beneficiaries; destruction, after a specified period, of the Code, if the records are not (2) These exemptions are records lacking administrative, legal, maintained, or are not available for supplemental to and not in derogation research, or other value. Notice is examination as required by paragraph of, any other provisions of the Act and/ published for records schedules in (h); and or the Code, including statutory or which agencies propose to destroy records not previously authorized for (h)(1) Except as provided in paragraph administrative exemptions and disposal or reduce the retention period (h)(2) and notwithstanding any transactional rules. Furthermore, the provisions of subsections (a)(2) and (b) of records already authorized for fact that a transaction is subject to an disposal. NARA invites public of section 504 of the Act, the records administrative or statutory exemption is referred to in paragraph (g) are comments on such records schedules, as not dispositive of whether the required by 44 U.S.C. 3303a(a). unconditionally available at their transaction is in fact a prohibited DATES: Requests for copies must be customary location for examination transaction; and during normal business hours by: received in writing on or before June 21, (3) The availability of these (A) Any duly authorized employee or 1999. Once the appraisal of the records representative of the Department or the exemptions is subject to the express is completed, NARA will send a copy of Internal Revenue Service; condition that the material facts and the schedule. NARA staff usually prepare appraisal memorandums that (B) Any fiduciary of the Plan, or any representations contained in each contain additional information duly authorized employee or application are true and complete and concerning the records covered by a representative of such fiduciary; and accurately describe all material terms of the transaction which is the subject of proposed schedule. These, too, may be (C) Any participant or beneficiary of requested and will be provided once the the Plan or duly authorized the exemption. In the case of continuing exemption transactions, if any of the appraisal is completed. Requesters will representative of such participant or be given 30 days to submit comments. beneficiary; material facts or representations ADDRESSES: To request a copy of any (2) None of the persons described in described in the application change records schedule identified in this paragraph (h)(1)(B) and (h)(1)(C) shall be after the exemption is granted, the notice, write to the Life Cycle authorized to examine trade secrets of exemption will cease to apply as of the Management Division (NWML), the Bank or commercial or financial date of such change. In the event of any National Archives and Records information which is privileged or such change, application for a new Administration (NARA), 8601 Adelphi confidential. exemption may be made to the Road, College Park, MD 20740–6001. Department. For a more complete statement of the Requests also may be transmitted by facts and representations supporting the Signed at Washington, DC, this 28th day of FAX to 301–713–6852 or by e-mail to Department’s decision to grant this April, 1999. [email protected]. Requesters exemption refer to the notice of Ivan Strasfeld, must cite the control number, which proposed exemption published on appears in parentheses after the name of March 4, 1999 at 64 FR 10503. Director of Exemption Determinations, Pension and Welfare Benefits Administration, the agency which submitted the EFFECTIVE DATES: This exemption is U.S. Department of Labor. schedule, and must provide a mailing effective from July 8, 1997 through June [FR Doc. 99–11004 Filed 5–5–99; 8:45 am] address. Those who desire appraisal 22, 1998. BILLING CODE 4510±29±P ` reports should so indicate in their FOR FURTHER INFORMATION CONTACT: Gary request. H. Lefkowitz of the Department, FOR FURTHER INFORMATION CONTACT: telephone (202) 219–8881. (This is not Michael L. Miller, Director, Modern a toll-free number.) Records Programs (NWM), National
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Archives and Records Administration, routine administrative subjects such as Included are electronic copies of 8601 Adelphi Road, College Park, MD travel requests, itineraries, vouchers, documents created using electronic mail 20740–6001, telephone (301) 713–7110. training forms, personnel matters, and word processing. Recordkeeping SUPPLEMENTARY INFORMATION: Each year printing, and procurement. Also copies of files that consist of more than Federal agencies create billions of included are reading or chronological one section are proposed for permanent records on paper, film, magnetic tape, files consisting of duplicate copies of retention. and other media. To control this official correspondence and electronic 7. Department of Justice, Office of accumulation, agency records managers copies of documents created using word Community Oriented Policing Services prepare schedules proposing retention processing and electronic mail. (N1–60–99–3, 2 items, 2 temporary periods for records and submit these Proposed for permanent retention are items). Records of successful grant schedules for NARA’s approval, using recordkeeping copies of biographical applications consisting of applications the Standard Form (SF) 115, Request for sketches, photographs, appointment and related correspondence. Included Records Disposition Authority. These schedules and calendars, program are electronic copies of documents schedules provide for the timely transfer subject files, official speeches and other created using electronic mail and word into the National Archives of presentations, and committee, meeting, processing. historically valuable records and and conference files. 8. Department of Justice, United authorize the disposal of all other 2. Department of Energy, Federal States Marshals Service (N1–527–99–1, records after the agency no longer needs Energy Regulatory Commission, (N1– 11 items, 11 temporary items). to conduct its business. Some schedules 138–99–6, 8 items, 8 temporary items). Remands, orders to deliver, receipts, are comprehensive and cover all the Commuter transportation records prisoner death investigations, jail records of an agency or one of its major relating to applications for use of inspections, and tracking records in subdivisions. Most schedules, however, parking facilities, parking violations, paper and electronic form relating to cover records of only one office or and tracking and monitoring permit Federal prisoners in the custody of the program or a few series of records. Many applications. Included are electronic U.S. Marshals Service for transporting of these update previously approved copies of documents created using for court appearances, transferring to a schedules, and some include records electronic mail and word processing. penal institution, and similiar actions. proposed as permanent. 3. Department of Energy, Agency- Included are electronic copies of No Federal records are authorized for wide (N1–434–98–17, 7 items, 5 documents created using electronic mail destruction without the approval of the temporary items). Media relations and word processing. Archivist of the United States. This records such as speeches by lower level 9. Department of State, Bureau of approval is granted only after a employees and contractors, press Finance and Management Policy (N1– thorough consideration of their clippings, and non-mission related press 59–99–11, 8 items, 5 temporary items). administrative use by the agency of releases. Also included are electronic Records relating to periodic origin, the rights of the Government and copies of documents created using accountability reports and financial of private persons directly affected by electronic mail and word processing. policy and management. Included are the Government’s activities, and Recordkeeping copies of speeches of electronic copies of reports and other whether or not they have historical or high officials, and press releases and documents created using electronic mail other value. other records documenting program and word processing. Recordkeeping Besides identifying the Federal activities are proposed for permanent copies of the reports are proposed for agencies and any subdivisions retention. permanent retention. requesting disposition authority, this 4. Department of Justice, Civil Rights 10. Department of State, Foreign public notice lists the organizational Division (N1–60–98–5, 3 items, 2 Service Posts (N1–84–99–1, 2 items, 2 unit(s) accumulating the records or temporary items). Case files relating to temporary items). Files relating to the indicates agency-wide applicability in the Church Arson Prevention Act of social and representational activities of the case of schedules that cover records 1996 that consist of only a single section Ambassadors and Chiefs of Mission, that may be accumulated throughout an (binder) of documents. Included are including electronic copies of agency. This notice provides the control electronic copies of documents created documents created using electronic mail number assigned to each schedule, the using electronic mail and word and word processing. total number of schedule items, and the processing. Recordkeeping copies of 11. Department of the Treasury, number of temporary items (the records files that consist of more than one United States Secret Service (N1–87– proposed for destruction). It also section are proposed for permanent 99–1, 1 item, 1 temporary item). Audio includes a brief description of the retention. recordings of radio traffic between the temporary records. The records 5. Department of Justice, Civil Rights Command Post and agents during schedule itself contains a full Division (N1–60–98–6, 3 items, 2 Presidential and Vice Presidential trips. description of the records at the file unit temporary items). Case files relating to This schedule covers recordings made level as well as their disposition. If the Freedom of Access to Clinic during trips when nothing out of the NARA staff has prepared an appraisal Entrances Act of 1994 that consist of a ordinary occurs. Tapes made during memorandum for the schedule, it too, single section (binder) of documents. trips in which an assassination attempt includes information about the records. Included are electronic copies of takes place were previously approved Further information about the documents created using electronic mail for permanent retention. disposition process is available on and word processing. Recordkeeping 12. Federal Communications request. copies of files that consist of more than Commission, Financial Analysis and one section are proposed for permanent Compliance Division (N1–173–99–2, 2 Schedules Pending retention. items, 2 temporary items). Case files of 1. Department of Commerce, Bureau 6. Department of Justice, Civil Rights cable television operator rate filings, of the Census (N1–29–99–2, 16 items, 11 Division (N1–60–98–7, 3 items, 2 consisting of cable subscriber temporary items). Files maintained by temporary items). Case files relating to complaints regarding cable television the director, deputy director, and police misconduct that consist of only a rates, along with cable operator rate principal associate directors relating to single section (binder) of documents. justifications submitted to the FCC for
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24426 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices review and analysis. Electronic copies NATIONAL TRANSPORTATION proposed transfer of Operating License of documents created using electronic SAFETY BOARD No. DPR–35 and Materials License No. mail and word processing are also 20–07626–04 from Boston Edison to included. Agenda; Sunshine Act Meeting Entergy Nuclear. The application also requested approval of conforming 13. National Aeronautics and Space TIME AND DATE: 9:30 a.m., Tuesday, May amendments to reflect the transfer. The Administration, Agency-wide (N1–255– 11, 1999. application was supplemented by 99–1, 2 items, 2 temporary items). PLACE: NTSB Board Room, 5th Floor, submittals dated January 28, February Employee training plans and other 490 L’Enfant Plaza, S.W., Washington, 18, April 2, April 15, and April 16, records documenting on-the-job or other D.C. 20594. 1999. The initial application and the general training (but not specialized STATUS: Open. supplements are hereinafter collectively technical training). Electronic copies of MATTERS TO BE CONSIDERED: referred to as ‘‘the application’’ unless documents created using electronic mail 5299E—‘‘Most Wanted’’ Safety otherwise indicated. and word processing are included. Recommendations Program Status Boston Edison is a wholly-owned 14. Tennessee Valley Authority, Report and Suggested Modifications. subsidiary of BEC Energy, a Communications Program (N1-142–97– 7155—Safety Report on the Status of Massachusetts business trust. Entergy 19, 3 items, 2 temporary items). Operator Fatigue. Nuclear, a Delaware corporation, is an indirect wholly owned subsidiary of Correspondence, approval forms, and NEWS MEDIA CONTACT: Telephone: (202) Entergy Corporation. According to the other administrative records generated 314–6100. application, Boston Edison has agreed to in processing funding requests for FOR FURTHER INFORMATION CONTACT: sell its ownership interest in Pilgrim to community activities. Procedural Rhonda Underwood, (202) 314–6065. Entergy Nuclear, subject to obtaining all manuals, publications, program reports, Dated: May 3, 1999. necessary regulatory approvals. After and related program subject files are Rhonda Underwood, the completion of the proposed sale and proposed for permanent retention. Federal Register Liaison Officer. transfer, Entergy Nuclear would be the 15. Tennessee Valley Authority, [FR Doc. 99–11473 Filed 5–3–99; 5:05 pm] sole owner and operator of Pilgrim. The Agency-wide (N1–142–99–3, 2 items, 2 BILLING CODE 7533±01±M conforming amendments, which would temporary items). Electronic copies of be issued pursuant to 10 CFR 30.38, documents, created using electronic 40.44, 50.90, and 70.34, would remove references to Boston Edison from the mail and word processing, pertaining to NUCLEAR REGULATORY Operating License and Materials record series included in TVA Schedule COMMISSION 1, Records Common to Most Offices, of License, and replace them with [Docket No. 50±293] the TVA Comprehensive Records references to Entergy Nuclear, as well as make miscellaneous changes to the Schedule. Records relate to a wide Boston Edison Company; (Pilgrim Operating License, administrative in variety of housekeeping functions such Nuclear Power Station, Unit No. 1); nature, to reflect the transfer. as announcing position vacancies, Order Approving Transfer of Licenses Notice of the initial application and business credit card support, and and Conforming Amendments an opportunity for a hearing was employee authorizations. published in the Federal Register on I 16. Export-Import Bank (N1–275–98– January 26, 1999 (64 FR 3984) and 1, 2 items, 2 temporary items). Draft Boston Edison Company (Boston supplemented on February 5, 1999 (64 loan agreements reflecting technical Edison) is owner of the Pilgrim Nuclear FR 5841). Pursuant to such notice, the changes including electronic copies of Power Station (Pilgrim), and is Attorney General of the Commonwealth documents created using electronic mail authorized to possess, use, and operate of Massachusetts and Local Unions 369 and word processing. Recordkeeping the facility as reflected in Operating and 387 filed hearing requests. By letter License No. DPR–35. Boston Edison also copies of files relating to policy issues dated April 7, 1999, Local Unions 369 is the holder of Materials License No. and minutes of meetings as well as final and 387 formally withdrew their 20–07626–04, which authorizes Boston request. Similarly, on April 16, 1999, loan agreements were previously Edison to possess, use, and transport the Attorney General of the approved for permanent retention. certain materials in the form of Commonwealth of Massachusetts 17. Federal Home Loan Banks, Office contamination on reactor components. withdrew his request. The Commission, of Finance (N1–485–99-1, 13 items, 13 The Atomic Energy Commission issued in light of the withdrawals, terminated temporary items). Records relating to Operating License No. DPR–35 on the pending proceeding on April 26, dealers whom the office serves, market September 15, 1972, pursuant to Part 50 1999, Boston Edison Co. (Pilgrim indications, term funding issues, bonds of Title 10 of the Code of Federal Nuclear Power Station), CLI–99–17, 49 arranged, settlement confirmations, Regulations (10 CFR Part 50). Materials NRC l, slip op. (April 26, 1999). daily securities transactions, audits, and License No. 20–07626–04 was issued on Certain municipalities which purchase meeting agendas. Also included are March 21, 1997, pursuant to 10 CFR power from Pilgrim filed written sound recordings of investment Parts 30, 40, and 70. The facility is comments, and Citizens Urging transactions. located in Plymouth County, on the Responsible Energy filed written southeast coast of the State of comments and requested a public Dated: April 30, 1999. Massachusetts. hearing. The written comments have Michael J. Kurtz, been considered by the staff in II Assistant Archivist for Record Services— connection with the issuance of this Washington, DC. Under cover of a letter dated Order. [FR Doc. 99–11368 Filed 05–04–99; 8:45 am] December 21, 1998, Boston Edison and Under 10 CFR 50.80, no license for a BILLING CODE 7515±01±P Entergy Nuclear Generation Company production or utilization facility, or any (Entergy Nuclear) jointly submitted an right thereunder, shall be transferred, application requesting approval of the directly or indirectly, through transfer of
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24427 control of the license, unless the (2) Entergy Nuclear shall maintain the (6) Entergy Nuclear shall, prior to Commission shall give its consent in decommissioning trust funds in completion of the sale and transfer of writing. Under 10 CFR 30.34, 40.41, and accordance with the application, this Pilgrim to it, provide the Director, Office 70.32, no byproduct, source, or special Order, and the related Safety Evaluation of Nuclear Reactor Regulation, nuclear material license shall be dated April 29, 1999, supporting this satisfactory documentary evidence that transferred in violation of the provisions Order. Entergy Nuclear has obtained the of the Atomic Energy Act of 1954, as (3) Entergy Nuclear shall provide a appropriate amount of insurance amended, which require, inter alia, Provisional Trust fund in the amount of required of licensees under 10 CFR Part Commission consent. Upon review of $70 million, after payment of any taxes, 140 of the Commission’s regulations. the information in the application by in the Provisional Trust for Pilgrim (7) After receipt of all required Boston Edison and Entergy Nuclear, and upon the transfer of the Pilgrim licenses regulatory approvals of the transfer of other information before the to Entergy Nuclear. The Provisional Pilgrim, Boston Edison and Entergy Commission, and relying upon the Trust shall be established and Nuclear shall inform the Director, Office representations and agreements maintained in conformance with the of Nuclear Reactor Regulation, in contained in the application, the NRC representations made in the application. writing of the date of the closing of the staff has determined that Entergy (4) The Decommissioning Trust sale and transfer of Pilgrim no later than Nuclear is qualified to hold the licenses, agreement(s) shall be in a form which is one business day prior to the date of and that the transfer of the licenses to acceptable to the NRC and shall closing. Should the transfer of the Entergy Nuclear is otherwise consistent provide, in addition to any other licenses not be completed by December with applicable provisions of law, clauses, that: 31, 1999, this Order shall become null regulations, and orders issued by the (a) Investments in the securities or and void, provided, however, on written Commission. The NRC staff has further other obligations of Entergy Nuclear, application and for good cause shown, found that the application for the Entergy Corporation, their affiliates, such date may in writing be extended. proposed license amendments complies subsidiaries or associates, or their It is further ordered that, consistent with the standards and requirements of successors or assigns shall be with 10 CFR 2.1315(b), license prohibited. In addition, except for the Atomic Energy Act of 1954, as amendments that makes changes, as investments tied to market indexes or amended, and the Commission’s rules indicated in Enclosure 1 to this Order, other non-nuclear sector mutual funds, and regulations set forth in 10 CFR to conform the licenses to reflect their investments in any entity owning one or Chapter I; the facility will operate in transfer are approved. Such more nuclear power plants is conformity with the application, the amendments shall be issued and made provisions of the Act and the rules and prohibited. (b) The Director, Office of Nuclear effective at the time the proposed regulations of the Commission; there is license transfers are completed. reasonable assurance that the activities Reactor Regulation, shall be given 30 days prior written notice of any material This Order is effective upon issuance. authorized by the proposed license For further details with respect to this amendments can be conducted without amendment to the trust agreement(s). (5) Entergy Nuclear shall have access Order, see the initial application dated endangering the health and safety of the December 21, 1998, and application public and that such activities will be to a contingency fund of not less than fifty million dollars ($50m) for payment, supplements dated January 28, February conducted in compliance with the 18, April 2, April 15, and April 16, Commission’s regulations; the issuance if needed, of Pilgrim operating and maintenance expenses, the cost to 1999, which are available for public of the proposed license amendments inspection at the Commission’s Public will not be inimical to the common transition to decommissioning status in the event of a decision to permanently Document Room, the Gelman Building, defense and security or to the health 2120 L Street, NW., Washington, DC, and safety of the public; and the shut down the unit, and decommissioning costs. Entergy Nuclear and at the local public document room issuance of the proposed amendments located at the Plymouth Public Library, will be in accordance with 10 CFR Part will take all necessary steps to ensure that access to these funds will remain 132 South Street, Plymouth, 51 of the Commission’s regulations and Massachusetts 02360. all applicable requirements have been available until the full amount has been satisfied. The foregoing findings are exhausted for the purposes described Dated at Rockville, Maryland, this 29th day supported by a Safety Evaluation dated above. Entergy Nuclear shall inform the of April 1999. April 29, 1999. Director, Office of Nuclear Reactor For the Nuclear Regulatory Commission. Regulation, in writing, at such time that Samuel J. Collins, III it utilizes any of these contingency Director, Office of Nuclear Reactor Accordingly, pursuant to Sections funds. This provision does not affect the Regulation. 161b, 161i, and 184 of the Atomic NRC’s authority to assure that adequate [FR Doc. 99–11402 Filed 5–5–99; 8:45 am] Energy Act of 1954, as amended, 42 funds will remain available in the BILLING CODE 7590±01±P U.S.C. 2201(b), 2201(i), and 2234, and plant’s separate decommissioning trust 10 CFR 30.34, 40.41, 50.80, and 70.32, fund(s), which Entergy Nuclear shall It is hereby ordered that the Commission maintain in accordance with NRC consents to the transfer of the licenses regulations. Once the plant has been SECURITIES AND EXCHANGE as described herein to Entergy Nuclear, placed in a safe-shutdown condition COMMISSION subject to the following conditions: following a decision to decommission, (1) For purposes of ensuring public Entergy Nuclear will use any remainder [Investment Company Act Release No. 23817; 812±11530] health and safety, Entergy Nuclear shall of the $50m contingency fund that has provide decommissioning funding not been used to safely operate and Bankers Trust Company, et al.; Notice assurance of no less than $396 million, maintain the plant to support the safe of Application after payment of any taxes, in the and prompt decommissioning of the decommissioning trust fund for Pilgrim plant, to the extent such funds are April 29, 1999. upon the transfer of the Pilgrim licenses needed for safe and prompt AGENCY: Securities and Exchange to Entergy Nuclear. decommissioning. Commission (‘‘Commission’’).
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ACTION: Notice of an application under SUPPLEMENTARY INFORMATION: The 2. ABIM, a Maryland limited section 6(c) of the Investment Company following is a summary of the partnership, serves as investment Act of 1940 (‘‘Act’’) for an exemption application. The complete application subadviser to three ICCC Funds. Brown from section 15(a) of the Act. may be obtained for a fee from the Trust, a Maryland trust company, serves Commission’s Public Reference Branch, as investment subadviser to two ICCC SUMMARY OF THE APPLICATION: The 450 Fifth Street, N.W., Washington, D.C. Funds. LaSalle, a Maryland limited requested order would permit the 20549–0102 (telephone (202) 942–8090). partnership, and Glenmede, a implementation, without prior Applicants’ Representations Pennsylvania limited purpose trust shareholder approval, of new company, each serve as investment investment advisory and subadvisory 1. BT, a New York banking subadviser to one ICCC Fund. Each of agreements (‘‘New Advisory corporation, serves as investment ABIM, Brown Trust, LaSalle, and Agreements’’) in connection with the adviser or subadviser to various open- Glenmede serves in this capacity merger of Bankers Trust Corporation end management investment companies pursuant to separate investment (‘‘BT Corp’’) and Deutsche Bank AG registered under the Act (‘‘BT Advised subadvisory agreements with ICCC (‘‘Deutsche Bank’’). The order would Funds’’) pursuant to separate (collectively, ‘‘Existing Subadvisory cover a period of up to 150 days investment advisory or subadvisory Agreements,’’ and together with the following the later of the date the agreements (‘‘Existing BT Existing BT Agreements and the 1 merger is consummated or the date the Agreements’’). ICCC, a Maryland Existing ICCC Agreements, ‘‘Existing requested order is issued (but in no corporation and wholly-owned Advisory Agreements’’). event later than November 30, 1999) subsidiary of BT Alex. Brown 3. BT and ICCC are wholly-owned (‘‘Interim Period’’). Incorporated, serves as investment subsidiaries of BT Corp, a registered APPLICANTS: Bankers Trust Company adviser to various open-end bank holding company that also ‘‘BT’’), Investment Company Capital management investment companies indirectly controls ABIM. BT Corp is Corp. (‘‘ICCC’’), and Alex. Brown registered under the Act (‘‘ICCC Funds’’ not affiliated with Brown Trust, LaSalle, Investment Management (‘‘ABIM’’) and, together with the BT Advised or Glenmede (each a ‘‘Non-BT (collectively, ‘‘BT Advisers’’); Brown Funds, ‘‘Funds’’) pursuant to separate Subadviser’’). Investment Advisory & Trust Company investment advisory agreements 4. BT, Brown Trust, and Glenmede are (‘‘Brown Trust’’); LaSalle Investment (‘‘Existing ICCC Agreements’’).2 exempt from registration as investment Management (Securities), L.P. advisers under the Investment Advisers (‘‘LaSalle’’); and The Glenmede Trust 1 BT serves as investment adviser for the Act of 1940 (‘‘Advisers Act’’) pursuant following BT Advised Funds: BT Insurance Funds Company (‘‘Glenmede’’) (collectively Trust, Cash Management Portfolio, Treasury Money to section 202(a)(11)(A) of the Advisers with the BT Advisers, Brown Trust and Portfolio, Tax Free Money Portfolio, New York Tax Act. ICCC, ABIM, and LaSalle are LaSalle, ‘‘Advisers’’). Free Money Portfolio, International Equity registered as investment advisers under Portfolio, Equity 500 Index Portfolio, Asset FILING DATES : The application was filed Management Portfolio, Capital Appreciation the Advisers Act. on March 5, 1999 and amended on April Portfolio, Intermediate Tax Free Portfolio, BT 5. On November 30, 1998, BT Corp 28, 1999. Investment Portfolios, Quantitative Equity Fund (a and Deutsche Bank entered into an series of BT Investment Funds), Institutional Daily HEARING OR NOTIFICATION OF HEARING agreement pursuant to which Circle : An Assets Funds and Institutional Treasury Assets order granting the application will be Fund (each a series of BT Institutional Funds), and Acquisition Corporation, a wholly- issued unless the Commission orders a BT Investment Equity Appreciation Fund (a series owned subsidiary of Deutsche Bank, hearing. Interested persons may request of BT Pyramid Mutual Funds). BT serves as will merge with and into BT Corp, with investment subadviser for the following BT Advised BT Corp continuing as the surviving a hearing by writing to the Funds: AARP U.S. Stock Index Fund, a series of Commission’s Secretary and serving AARP Growth Trust; three series of American entity (the ‘‘Merger’’). Applicants expect applicants with a copy of the request, General Series Portfolio Company (Mid Cap Index consummation of the Merger on or personally or by mail. Hearing requests Fund, Stock Index Fund, and Small Cap Index about May 31, 1999. Fund); four series of American General Series 6. Applicants state that the Merger should be received by the Commission Portfolio Company 2 (Small Cap ‘‘Value’’ Index by 5:30 p.m. on May 24, 1999 and Fund, Stock Index Fund, Midcap Index Fund, and may result in the assignment, and thus should be accompanied by proof of Small Cap Index Fund); Small Cap Value Index termination, of the Existing Advisory service on applicants in the form of an Fund, a series of American General Series Portfolio Agreements under the terms of those Company 3; AST Bankers Trust Enhanced 500 agreements and the Act. Applicants affidavit or, for lawyers, a certificate of Portfolio, a series of American Skandia Trust; three service. Hearing requests should state series of EQ Advisors Trust (BT Equity 500 Index request an exemption to permit (i) the the nature of the writer’s interest, the Portfolio, BT Small Company Index Portfolio, and implementation of the New Advisory reason for the request, and the issues BT International Equity Index Portfolio); Spartan Agreements without prior shareholder Market Index Fund, a series of Fidelity approval, and (ii) the Advisers to contested. Persons may request Commonwealth Trust; four series of Fidelity notification by writing to the Concord Street Trust (Spartan Extended Market receive all advisory fees earned under Commission’s Secretary. Index Fund, Spartan Total Market Index Fund, the New Advisory Agreements during Spartan International Market Index Fund, and the Interim Period, subject to approval ADDRESSES: Secretary, SEC, 450 Fifth Spartan U.S. Equity Index Fund); Index 500 of the New Advisory Agreements by the Street, N.W., Washington, D.C. 20549– Portfolio, a series of Fidelity Variable Insurance 0609. Applicants, c/o Willkie Farr & Products Fund II; two series of Pacific Select Fund Funds’ shareholders. The requested (Equity Index Portfolio and Small-Cap Index exemption would cover the Interim Gallagher, Attn: Burton M. Leibert, Esq. Portfolio); two series of SBL Fund (Series H and or Jon S. Rand, Esq., 787 Seventh Period of not more than 150 days Series I); two series of Security Index Fund beginning on the later of the date the Avenue, New York, NY 10019–6099. (International Series and Enhanced Index Series); International Equity Portfolio, a series of Style FOR FURTHER INFORMATION CONTACT: Select Series Inc.; and eight series of Seasons Series Alex. Brown Cash Reserve Fund, Inc.); Flag Rachel H. Graham, Senior Counsel, at Trust (Large-Cap Growth Portfolio, Large-Cap Investors Communications Fund, Inc.; Flag (202) 942–0583, or Nadya B. Roytblat, Composite Portfolio, Large-Cap Value Portfolio, Investors Emerging Growth Fund, Inc.; Flag Assistant Director, at (202) 942–0564 Mid-Cap Growth Portfolio, Mid-Cap Value Investors Short-Intermediate Income Fund, Inc.; Portfolio, Small Cap Portfolio, International Equity Flag Investors Value Builder Fund, Inc.; Flag (Division of Investment Management, Portfolio, and Diversified Fixed Income Portfolio). Investors Real Estate Securities Fund, Inc.; Flag Office of Investment Company 2 The ICCC Funds are: Tax-Free Series, Prime Investors Equity Partners Fund, Inc.; and Flag Regulation). Series, and Treasury Series (each a series of BT Investors International Fund, Inc.
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The Temporary Order stated shareholders; or (ii) to the Fund, if the that the New Advisory Agreements will that it would expire when the Interim Period has ended and the contain substantially the same terms Commission took final action on an Fund’s shareholders have not approved and conditions as the Existing Advisory application for a permanent order or, if the New Advisory Agreement.9 Before Agreements, except for the dates of earlier, May 11, 1999. On march 25, any such release is made, the Board of commencement and termination. 1999, the BT Advisers filed an the applicable Fund will be notified. 7. Applicants state that, on March 11, application under section 9(c) for (i) a 11. Proxy materials for the 1999, six days after applicants filed this permanent order exempting the Covered shareholders meeting of each Fund are application with the Commission, the Entities from section 9(a) with respect to expected to be mailed beginning in or U.S. Attorney for the Southern District the Cooperation and Plea Agreement about May, 1999. The proxy materials of New York filed a three-count felony and (ii) an extension of the Temporary will include disclosure regarding the information (‘‘Information’’) in the Order if the requested permanent order Corporation and Plea Agreement, the United States District Court for the is not granted before the Temporary Temporary Order, and the BT Advisers’ Southern District of New York. The Order expires. request for a permanent order of Information charges BT with making 9. Applicants currently intend that exemption from section 9(a). Applicants false entries on its books and records as the board of directors (‘‘Board’’) of each represent that if the Commission a result of the conduct of certain Fund will meet prior to the Closing Date decides not to extend the Temporary employees in BT’s processing services to consider approval of the New Order or denies the BT Advisers’ businesses in 1994–1996.4 On March 11, Advisory Agreements and submission of request for a permanent section 9(c) 1999, BT pleaded guilty to the charges the New Advisory Agreements to the order prior to the time that the proxy in the Information pursuant to a written shareholders for their approval, in materials are mailed, solicitation of cooperation and plea agreement accordance with section 15(c) of the shareholder votes with respect to the (‘‘Cooperation and Plea Agreement’’).5 Act.7 Applicants state that each Board New Advisory Agreements will be 8. On March 12, 1999, BT filed an will evaluate whether the terms of the limited only to approval of the release application pursuant to section 9(c) of relevant New Advisory Agreement(s) are of amounts payable to the BT Advisers the Act for a temporary order exempting in the best interests of the Fund and its that were escrowed up to the date on it and entities of which it is or becomes shareholders. Applicants state that a which the Temporary Order or an an affiliated person (‘‘Covered Entities’’) majority of the Boards already have extension of the Temporary Order from the provisions of section 9(a) of the convened and approved the New expires if the permanent order has not Act. 6 On March 12, 1999, BT and the Advisory Agreements applicable to their been granted. Applicants further Funds. Applicants represent that any 3 represent that if the Commission Applicants state that if the Closing Date Board that met prior to March 11, 1999 precedes the issuance of the requested order, they decides not to extend the Temporary subsequently was apprised of the will serve after the Closing Date and prior to the Order or denies the BT Advisers’ Cooperation and Plea Agreement and issuance of the order in a manner consistent with request for a permanent section 9(c) their fiduciary duty to provide investment advisory BT’s requests for relief under section order while the proxies are outstanding, and subadvisory services to the Funds even though 9(c). Applicants also represent that all approval of the New Advisory Agreements has not the BT Advisers will mail supplemental other Boards have been or will be yet been secured from the Funds’ shareholders. proxy materials with respect to the BT Applicants submit that, in such an event, they will apprised of the Cooperation and Plea Advisers’ New Advisory Agreements be entitled to receive, from the Closing Date until Agreement and BT’s requests for relief soliciting shareholder approval only for the issuance of the order, no more than their actual under section 9(c) before voting on the out-of-pocket costs for providing investment the release of amounts payable to the BT New Advisory Agreements applicable to advisory and subadvisory services to the Funds. Advisers that were escrowed up to the 4 The conduct involved the transfer to reserve their Funds. Applicants further date on which the Temporary Order or accounts and to income of aged credit items that represent that each Board has been or should have been paid to customers, other third an extension of the Temporary Order will be provided with all information parties, or state abandoned property authorities. expires if the permanent order has not 5 reasonably necessary to evaluate As part of the Cooperation and Plea Agreement, been granted. In either instance, the BT agreed to pay a $60 million fine and to place whether retaining the relevant BT ICCC Funds subadvised by the Non-BT that amount in escrow pending sentencing. As a Adviser is in the best interests of the result of the matters underlying the Cooperation Subadvisers will be permitted to solicit and Plea Agreement, BT also has agreed to pay a Fund and its shareholders. 10. Advisory fees earned by the shareholder approval of the release of $3.5 million fine to the State of New York. all escrowed fees payable to the Non-BT 6 Section 9(a), in relevant part, prohibits a person Advisers under the New Advisory and any company of which the person is an Agreements during the Interim Period Subadvisers under the New Advisory affiliated person from serving or acting as an will be maintained in interest-bearing Agreements. investment adviser, principal underwriter, or depositor for any registered investment company if escrow accounts with one or more the person has been convicted of any felony arising financial institutions unaffiliated with The portion of such revenues owned to the applicable BT Advised Funds, as opposed to BT, out of the person’s conduct as, among other things, the Advisers (each an ‘‘Escrow Agent’’).8 an underwriter, broker, dealer, investment adviser, will not be placed into escrow. or transfer agent. Section 9(c) of the Act provides 9 As described in representation 11 in this notice, that the Commission shall grant an application for 7 Applicants acknowledge that, to the extent that if the Commission declines to extend the an exemption from the disqualification provisions a Fund’s Board cannot meet prior to the Closing Temporary Order or denies the BT Advisers’ of section 9(a) if it is established that these Date, the applicable Adviser(s) may not rely upon request for a permanent section 9(c) order, the BT provisions, as applied to the applicant, are unduly the exemptive relief requested in this application. Advisers may only receive the fees payable to them or disproportionately severe or that the applicant’s 8 In certain cases, the fees payable to BT under that were escrowed up to the date on which the conduct has been such as not to make it against the the New Advisory Agreements include a portion of Temporary Order or an extension of the Temporary public interest or the protection of investors to grant revenues earned from securities lending activities Order expires if the permanent order has not been the application. performed on behalf of certain BT Advised Funds. granted.
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Applicants’ Legal Analysis Advisory Agreements before the Merger preparing and filing the application and 1. Section 15(a) of the Act provides, is consummated. Applicants further the costs relating to the solicitation and in relevant part, that it is unlawful for assert that the requested relief would approval of Fund Shareholders of the any person to serve as an investment prevent any disruption in the delivery New Advisory Agreements necessitated adviser to a registered investment of investment advisory services to the by the Merger. company, except pursuant to a written Funds during the period after the 5. BT Corp, Deutsche Bank, and contract that has been approved by the Merger. applicants will take all appropriate vote of a majority of the outstanding 5. Applicants represent that, under actions to ensure that the scope and voting securities of the investment the New Advisory Agreements during quality of investment advisory and other company. Section 15(a) further requires the Interim Period, the Funds will services to be provided to the Funds by the written contract to provide for its receive the same scope and quality of the advisers during the Interim Period automatic termination in the event of its investment advisory services, provided will be least equivalent, in the judgment assignment. Section 2(a)(4) of the Act in the same manner, as they receive of the Boards, including a majority of defines ‘‘assignment’’ to include any under the Existing Advisory the non-interested directors, to the direct or indirect transfer of a Agreements. Applicants state that, in scope and quality of services currently controlling block of the assignor’s the event of any material change in provided under the Existing Advisory outstanding voting securities by a investment management personnel Agreements. In the event of any material security holder of the assignor. providing services to the Funds, the change in investment management Applicants state that the Merger may applicable Adviser will apprise and personnel providing advisory services result in an assignment of the Existing consult with the relevant Fund’s Board pursuant to the New Advisory Advisory Agreements and that such to ensure that the Broad, including a Agreements, the applicable Adviser will agreements will terminate according to majority of the non-interested directors, apprise and consult with the relevant their terms. is satisfied that the services provided by Fund’s Board to ensure that the Board, 2. Rule 15a–4 under the Act provides, the Adviser will not be diminished in including a majority of the non- in relevant part, that if an investment scope and quality. Applicants note that interested directors, is satisfied that the advisory contract with a registered the fees payable to the Advisers under services provided by the Adviser during investment company is terminated due the New Advisory Agreements during the Interim Period will not be to its assignment, an investment adviser the Interim Period will be at the same diminished in scope or quality. may act as such for the company for 120 rate as the fees paid under the Existing 6. The application and any exemption days under a written contract that has Advisory Agreements. issued will be without prejudice to, and will not limit the Commission’s rights in not been approved by the company’s Applicants’ Conditions shareholders, provided that: (i) The new any manner with respect to, any contract is approved by that company’s Applicants agree as conditions to the Commission investigations or board of directors, including a majority issuance of the exemptive order enforcement actions pursuant to the of the non-interested directors; (ii) the requested by the application that: federal securities laws, or the compensation to be paid under the new 1. The New Advisory Agreements will consideration by the Commission of any contract does not exceed the contain substantially the same terms application for exemption from compensation that would have been and conditions as the Existing Advisory statutory requirements, including paid under the contract most recently Agreements, except for the date of without limitation, the consideration of approved by the company’s commencement and termination. a request for a permanent exemption shareholders; and (iii) neither the 2. The portion of the advisory fees pursuant to sections 9(c) of the Act, or adviser nor any controlling person of earned by the Advisers during the the revocation, removal, or extension of the adviser ‘‘directly or indirectly Interim Period will be maintained in the Temporary Order. receive[s] money or other benefit’’ in interest-bearing escrow accounts, and For the Commission, by the Division of connection with the assignment. amounts in the accounts chargeable to Investment Management, under delegated Applicants state that they may not rely the Funds (including interest earned on authority. on rule 15a–4 because BT Corp will such amounts) will be paid to the Margaret H. McFarland, receive benefits in connection with the applicable Adviser only upon approval Deputy Secretary. of each New Advisory Agreement by the Merger. [FR Doc. 99–11363 Filed 5–5–99; 8:45 am] 3. Section 6(c) of the Act provides that relevant Fund’s shareholders or, in the 10 BILLING CODE 8010±01±M the Commission may exempt any absence of such approval, to the Fund. person, security, or transaction from any 3. Each fund will schedule a meeting provision of the Act or any rule of its shareholders to vote on approval SECURITIES AND EXCHANGE thereunder if and to the extent that such of the New Advisory Agreements, which COMMISSION exemption is necessary or appropriate will be held within 150 days following the commencement of the Interim [Release No. 34±41343; File No. SR±NASD± in the public interest and consistent 99±16] with both the protection of investors Period (but in no event later that November 30, 1999). and the purposes fairly intended by the Self-Regulatory Organizations; Notice policy and provisions of the Act. 4. The BT Advisers, or entities controlling them, will pay the costs of of Filing of Proposed Rule Change by Applicants state that the requested relief the National Association of Securities meets this standard. 10 As described in representation 11 in this Dealers, Inc. and Amendment No. 1 4. Applicants state that the terms and notice, if the Commission declines to extend the Thereto Relating to Agency Quotations timing of the Merger were determined in Temporary Order or denies the BT Advisers’ and Access Fees response to a number of factors beyond request for a permanent section 9(c) order, the BT the scope of the Act and substantially Advisers may only receive the fees payable to them April 28, 1999. that were escrowed up to the date on which the unrelated to the Funds. Applicants Temporary Order or an extension of the Temporary On April 15, 1999, the National assert that there is insufficient time to Order expires if the permanent order has not been Association of Securities Dealers, Inc. obtain shareholder approval of the New granted. (‘‘NASD’’ or ‘‘Association’’), through its
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Firmness of Quotations Commission (‘‘SEC’’ or ‘‘Commission’’) the Association shall execute a the proposed rule change as described Members and persons associated with transaction for at least a normal unit of in Items I, II, and III below, which Items members in the over-the-counter market trading at its displayed quotations as have been prepared by Nasdaq.1 On make trading decisions and set prices disseminated in The Nasdaq Stock April 22, 1999, the NASD amended the for customers upon the basis of Market at the time of receipt of any such filing.2 The Commission is publishing telephone and wire quotations as well offer. If a market maker displays a this notice to solicit comments on the as quotations in the National Quotation quotation for a size greater than a proposed rule change, as amended, from Bureau sheets. In some instances a normal unit of trading, it shall, upon interested persons. dealer’s quotations, purportedly firm, receipt of an offer to buy or sell from are, in fact, so qualified upon further another member of the Association, I. Self-Regulatory Organization’s inquiry as to constitute ‘‘backing away’’ execute a transaction at least at the size Statement of the Terms of Substance of by the quoting dealer. Further, dealers displayed. It shall be consistent with the Proposed Rule Change who place quotations in the sheets have this rule for a Nasdaq market maker to Nasdaq is proposing to: (1) amend been found to be unwilling to make firm charge a fee to a market participant that certain NASD quotation rules to remove bids or offers upon inquiry in such a accesses through a Nasdaq-provided any arguable prohibitions that could way as to pose a question as to the facility or telephone the market maker’s prevent market makers from charging a validity of the quotations originally Agency Quote (as defined in NASD Rule fee when their agency quote is accessed; inserted. Such ‘‘backing away’’ from 4613(b)), so long as the market maker and (2) require market makers and quotations disrupts the normal meets all NASD requirements for electronic communications networks operation of the over-the-counter displaying the Agency Quote; provided (‘‘ECNs’’) to round their quotations to market. however, a market maker may not the next minimum quotation increment Members, of course, change charge a UTP Specialist a fee for when the market maker or ECN charges interdealer quotations constantly in the accessing its quote when the UTP another market participant a fee in course of trading, but under normal Specialist accesses the Agency Quote by excess of one-half of one cent to access circumstances where the member is telephone from the floor of the UTP its quote. Proposed new language is making a ‘‘firm trading market’’ in any exchange. For purposes of this rule a italicized; proposed deletions are in security, it is expected at least to buy or ‘‘UTP Specialist’’ shall mean a broker/ brackets. sell a normal unit of trading in the dealer registered as a specialist in Nasdaq securities pursuant to the rules * * * * * quoted stock at its then prevailing quotations unless clearly designated as of an exchange that is a signatory to the 3320. Offers at Stated Prices not firm or firm for less than a normal Joint Self-Regulatory Organization Plan No member shall make an offer to buy unit of trading when supplied by the Governing the Collection, Consolidation from or sell to any person any security member. It should be realized, however, and Dissemination Of Quotation and at a stated price unless such member is that at times contemporaneous Transaction Information For Exchange- prepared to purchase or sell, as the case transactions or substantial changes in Listed Nasdaq/National Market System may be, at such price and under such inventory might well require dealers to Securities Traded On Exchanges On An conditions as are stated at the time of quote a ‘‘subject market’’ temporarily. Unlisted Trading Privilege Basis In order to insure the integrity of (‘‘Nasdaq/NMS/UTP Plan’’). such offer to buy or sell. It shall be 4 consistent with this rule for a Nasdaq quotations, every member has an (d)–(e) No Change. market maker to charge a fee to a obligation to correctly identify the 4615. Quotation Rounding and Other market participant that accesses the nature of its quotations when they are Requirements for Agency Quotations market maker’s Agency Quote (as supplied to others. In addition, each and ECNs member furnishing quotations must defined in NASD Rule 4613(b)) so long (a) An electronic communications as the market maker meets all NASD insure that it is adequately staffed to respond to inquiries during the normal network (‘‘ECN’’) included in Nasdaq pursuant to Rule 4623 or a Nasdaq 1 This proposal was filed pursuant to Section business hours of such member. 19(b)(1) of the Securities Exchange Act of 1934 It shall be deemed conduct market maker that displays an Agency (‘‘Act’’), 15 U.S.C. 78s(b)(1), and Rule 19b–4, 17 inconsistent with high standards of CFR 240.19b–4, thereunder. commercial honor and just and would functionally integrate Nasdaq’s SOES and 2 See letter from Robert E. Aber, Senior Vice SelectNet system. See Exchange Act Release No. President and General Counsel, Office of the equitable principles of trade if a member 41296 (April 15, 1999), 64 FR 19844 (April 22, General Counsel, Nasdaq, to Richard Strasser, fails to fulfill its obligations as outlined 1999). Assistant Director, Division of Market Regulation above. It shall not be a violation of this 4 Nasdaq recently filed a proposed rule change, (‘‘Division’’), Commission, dated April 22, 1999 rule or be deemed conduct inconsistent SR–NASD–99–09, to permit the separate display of (‘‘Amendment No. 1’’). In Amendment No. 1, the customer orders by market makers in Nasdaq NASD made various technical and clarifying with high standards of commercial through a market maker agency identification amendments which are reflected in the notice. Also honor and just and equitable principles symbol (‘‘Agency Quote’’). Under that proposal, the in Amendment No. 1, the text of proposed NASD of trade if a Nasdaq market maker Agency Quote rule would be designated as NASD Rule 4615 and the accompanying explanatory text charges a fee for accessing its Agency Rule 4613(b). The current NASD Rule 4613(b), in the filing is amended to clarify that if the access regarding Firm Quotations, would be redesignated fee that an ECN or market maker charges is greater Quote so long as the market maker as NASD Rule 4613(c), and current NASD rule than one minimum quotation increment, the market meets all NASD requirements for 4613(c) would be redesignated as NASD Rule maker or ECN must round its bid down (or offer up) displaying the Agency Quote. 4613(d). That proposal would also eliminate current to the next minimum increment that is equal to or NASD Rule 4613(d), regarding Reasonably greater than the access fee. Finally, the NASD also Rule 4613. Character of Quotations Competitive Quotations, as the requirements of this explained that the instant proposed rule change is 3 subparagraph were eliminated as of October 13, contingent upon the Commission’s approval of its (a)–(b) No Change. 1997 by Exchange Act Release No. 39120 (Sept. 23, pending Agency Quote proposal (Exchange Act 1997), 62 FR 51170 (Sept. 30, 1997). See note 2, Release No. 41128 (March 2, 1999), 64 FR 41128 3 In pending File No. SR–NASD–99–11, Nasdaq above. This filing reflects the proposed (March 11, 1999) (File No. SR–NASD–99–09)). proposed amendments to NASD Rule 4613(a) which redesignations.
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Quote (as defined in NASD Rule 4613) II. Self-Regulatory Organization’s Additionally, the Agency Quote must round its bid down and/or its offer Statement of the Purpose of, and Proposal attempts to resolve the up by the next minimum quotation Statutory Basis for, the Proposed Rule regulatory and administrative increment permitted by Nasdaq’s system Change difficulties that market makers (or if the access fee, as described below, In its filing with the Commission, experience as a result of being required is larger than one minimum quotation Nasdaq included statements concerning to display customer orders and other increment, the market maker or ECN the purpose of, and basis for, the agency interests as well as market must round its bid(offer) down(up) to proposed rule change and discussed any makers’ proprietary interests in a single the next minimum increment that is comments it received on the proposed quote. equal to or greater than the access fee) rule change. The text of these statements Also, as noted in the Agency Quote if: may be examined at the places specified Proposal, many ECNs currently charge (1) the ECN charges non-subscribers in Item IV below. Nasdaq has prepared fees to market participants (and ECN that access its quote a fee in excess of summaries, set forth in Sections (A), (B) subscribers) that execute against a one-half of one cent per share; or and (C) below, of the most significant customer order that is displayed in the (2) the Nasdaq market maker charges aspects of such statements. ECN. Although market makers currently any participant that accesses the market may not charge a similar fee when their maker’s Agency Quote (as defined in (A) Self-Regulatory Organization’s public quotes are accessed, market NASD Rule 4613) a fee in excess of one- Statement of the Purpose of, and makers have expressed a desire to do so, half of one cent per share. Statutory Basis for the Proposed Rule in particular since they often are acting (b) Prior to commencing to charge for Change as agent by displaying a customer’s a fee for accessing its Agency Quote, a Nasdaq is proposing to amend NASD interest in their quote. Nasdaq believes Nasdaq market maker shall inform Rule 3320 regarding Offers at Stated that it is inequitable that ECNs are Nasdaq Market Operations in writing of Prices and NASD Rule 4613(c) regarding permitted to charge a fee when their the maximum fee it intends to charge Firm Quotations, which arguably could quote is accessed, but market makers are any market participant that accesses its be read to prohibit market makers from prohibited from charging a fee in similar Agency Quote (Initial Notification charging market participants fees when situations when they act as agent. Requirement). Additionally, the market quotes are accessed. Nasdaq also is Nasdaq notes that concerns have been maker shall immediately inform Nasdaq proposing to require market makers and raised about this perceived inequity. Market Operations in writing of any ECNs to round their quotations to the Specifically, Nasdaq suggests that the change in the maximum fee it charges next minimum quotation increment present environment encourages market any market participant (Continuous when: (1) the ECN charges non- makers to send their customer limit Notification Requirement). The Initial subscribers a fee in excess of one-half of orders to ECNs to comply with the OHR. Thus, market makers often must give up Notification and Continuous one cent to access its quote; and (2) the some of their business and incur ECN Notification requirements shall also market maker charges another market fees to process their customer’s limit apply to ECNs included in Nasdaq. participant a fee in excess of one-half of orders. Market makers argue that it is (c) It shall be deemed conduct one cent to access its Agency Quote (as unfair that an ECN may charge a fee inconsistent with high standards of defined in NASD rule 4613).5 commercial honor and just and when its quote is accessed but they equitable principles of trade if a 1. Background (market makers) are prohibited from member fails to fulfill its obligations as Recently, Nasdaq filed with the charging a fee when they are outlined above. Commission a proposal to allow market representing an agency interest in their makers in Nasdaq National Market quote. Thus, there are strong incentives 4623. Electronic Communications for market makers to register as ECNs to Networks Securities (‘‘NNM’’) to display a second quotation separate from their avoid some of the regulatory and other (a) No change. proprietary quotation for the purpose of requirements imposed on market (b) An ECN that seeks to utilize the displaying customer interest (‘‘Agency makers, as well as risk to capital that Nasdaq-provided means to comply with Quote Proposal’’).6 As noted in the market makers assume. Additionally, the ECN display alternative shall: Agency Quote Proposal filing,7 Nasdaq’s market makers argue that they, like (1)–(3) No Change. intended purpose of the Agency Quote ECNs, should be able to charge an (4) agree to provide for Nasdaq’s was to give market makers an alternative access fee when they are acting purely dissemination in the quotation data method to display agency interests to as agent. Similar to ECNs, the access fee made available to quotation vendors the the market and to return ‘‘control’’ over charged would compensate market makers for costs incurred in prices and sizes of Nasdaq market maker their quotes that market makers argue representing orders in Nasdaq on an orders (and other entities, if the ECN so they lost with the implementation of the agency basis. chooses) at the highest buy price and SEC’s Order Handling Rules (‘‘OHR’’).8 the lowest sell price for each Nasdaq In adopting the OHR, the Commission required that ECNs provide broker- security entered in and widely 5 See id. disseminated by the ECN; and prior to 6 Id. dealers access to market maker orders entering such prices and sizes, register 7 Id. As noted in the Agency Quote Proposal, reflected in the ECN’s public quote that with Nasdaq Market Operations as an market makers assert that they have ‘‘lost control’’ was equivalent to broker-dealer access ECN; [and] of their quotes because they must change their to the market maker’s own quotes. proprietary quote to reflect certain limit orders and Currently, the Firm Quote Rules and (5) provide an automated execution must ‘‘advertise competing interests in their or, if the price is no longer available, an quotes.’’ The original text in this footnote has been NASD rules generally require market automated rejection of any order routed changed pursuant to a telephone conversation makers to trade at their displayed to the ECN through the Nasdaq- between John Malitzis, Assistant General Counsel, provided display alternative[.]; and Office of the General Counsel, Nasdaq, and Marc Rule 11 Ac1–4 (‘‘Display Rule’’), were adopted by McKayle, Attorney, Division, Commission (April the Commission on August 28, 1996. See Securities (6) comply with applicable 22, 1999). Exchange Act Release No. 37619A (September 6, requirements of NASD Rule 4615. 8 The OHR, comprised of amendments to Rule 1996), 61 FR 48290 (September 12, 1996) (‘‘OHR (c) No Change. 11Ac1–1 (‘‘Firm Quote Rule’’) and the adoption of Adopting Release’’).
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The UTP Plan does not, subscriber broker-dealers.’’ 9 is accessed, similar to that ECNs however, explicitly prohibit market Subsequently, Commission staff no- currently charge non-subscribers. Under makers from charging UTP Specialists a action letters affirmed that individual this proposal, a market maker would be fee when a market maker’s quote is ECNs could be used by market makers permitted to charge a fee but would be accessed by a means other than the in compliance with the OHR. In these required to round its bid down or its telephone, such as a Nasdaq order letters the ECNs represented, as a offer up by the applicable minimum delivery system. condition of receiving the no-action quotation increment in Nasdaq if the The proposal would require all relief, that they would charge non- maximum fee the market maker charges market makers and ECNs to inform the subscriber orders fees no greater than any market participant exceeded one- NASD of the maximum (or highest) fee the lesser of the fees charged a half of the one cent. If the access fee the the market maker or ECN intends to substantial number of active broker- market maker charges is greater than a charge any single market participant, as dealer subscribers, and one and one-half single minimum increment, then the well as any changes in previously cents per share. market maker would have to round its established fees. The NASD intends to Regulation ATS extended the OHRs’ Agency Quote to the next minimum publish and widely distribute this fee equivalent access standard for increment that is equal to or greater than information through a common facility, 13 alternative trading systems publishing the access fee. In effect, the market such as the Nasdaqtrader.com Web Site. Nasdaq is sensitive to the concerns that public quotations.10 In Regulation ATS, maker’s fee would be included in the allowing market makers to charge the the Commission acknowledged that a market maker’s Agency Quote if the proposed fee could result in the self-regulatory organization (‘‘SRO’’) has charge exceeded one-half of one cent. A imposition of administrative burdens the authority to adopt rules limiting virtually identical rounding requirement 14 and other costs on small firms, as firms alternative trading systems fees, or would apply to ECNs. Nasdaq believes would be required to calculate the fees requiring display of fees in the quote, to that when a quote-access fee exceeds a they owe and are owed. To alleviate make alternative trading system quotes half-a-cent per share, the net execution these concerns, Nasdaq intends to that are disseminated to the public price materially differs from the quoted develop through a common facility (e.g., comparable with other quotes in the price, and thus the fee should be the Nasdaqtrader.com Web Site) reports SRO’s market.11 rounded to account for such differential. For example, a bid of 20 for a market and data that firms may use to calculate The fees charged by ECNs to non- participant that charges a fee of .006 the fees. In addition, to implement the subscriber broker-dealers accessing ECN cents per share would be rounded down Agency Quote proposal, Nasdaq is quotes have provoked much to $1915⁄16, while an offer of 20 with the proposing amendments to current controversy. Market makers have argued same charge would be rounded up to NASD rules (e.g., NASD Rule 3320 that ECNs publishing quotes in Nasdaq 201⁄16. As a second example, if a market regarding Offers at Stated Price and should not be allowed to charge fees to participant charged a fee of twelve and NASD Rule 4613 regarding Firm trade with those quotes, on, in fairness, a half cents per share (i.e., 1⁄8th point) Quotations), which arguably could be market makers should be allowed to on a $20 buy limit order, the market read to prohibit market makers from charge ECNs and others that trade with participant would have to display that charging market participants fees when the market maker’s quotes. Broker- buy limit order at $197⁄8 (or 1⁄8th down). their quotes are accessed. dealers say that while best execution There would be no cap on the fee Nasdaq believes that where a quote is principles compel them to trade with market participants could charge, nor is subject to the rounding requirement, a better-priced displayed ECN quotes to Nasdaq mandating that market market participant should make a benefit their customers, these customers participants charge the same rate to all number of disclosures to its customer to are generally unwilling to pay the fee market participants that access the fulfill its best execution obligations. charged by the ECN in that trade. market participant’s quote (i.e., market First, the market participant should The ECNs say that their business makers and ECNs may vary access fees disclose and explain that while model depends on charging both sides for different market participants).15 rounding will result in price of a transaction an agency commission. Nasdaq notes, however, that it believes improvement by the amount rounded, They argue that they should still be able the Nasdaq UTP Plan would prohibit a the rounding may delay the execution of to charge these fees even when the OHR market maker from charging a UTP the order because the order will be and Regulation ATS require them to reflected at a lower price, in the case of display prices in the public quote. 12 As explained in more detail below, the buy orders (or higher price, in the case The Nasdaq rule proposal would Commission is seeking comment not only on the of sell orders). Additionally, a market NASD rule filing as currently proposed, but also on maker must disclose (if applicable) that address these issues by allowing market the broader questions raised by ECN and ATS fees makers, like ECNs, to charge fees to for accessing quotes and possible ways of when the quote is rounded down (up) access their agency quotes. The proposal reconciling these fees with the existing Nasdaq the market maker will collect the access would, however, require both market market. makers and ECNs to round this quote to 13 Nasdaq notes that the half-a-cent level is 16 See Section IX (‘‘Market Access’’), Joint Self- equivalent to the average fee that most ECNs charge Regulatory Organization Plan Governing the their professional customers. Collection, Consolidation and Dissemination Of 9 Id. at n. 272. 14 ECNs currently are not subject to a requirement Quotation and Transaction Information For 10 See Exchange Act Release No. 40760 (Dec. 8, that they round their quotes to reflect a fee. Exchange-Listed Nasdaq/National Market System 1998), 63 FR 70844 (December 22, 1998) 15 The proposed rule would not prevent market Securities Traded On Exchanges On An Unlisted (‘‘Regulation ATS Adopting Release’’). participants from rebating fees to a customer or Trading Privilege Basis (‘‘Nasdaq/NMS/UTP 11 Id. customers. Plan ’’).
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24434 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices fee from the customer, since the This proposal is contingent upon SEC act to deter that market participant from accessing market participant has already approval of the Agency Quote Proposal, acting as a market maker. On the other paid the fee with the implicit inclusion and would become effective hand, if the market maker passes a fee of the fee in the quote. (An example of concurrently with Nasdaq’s on to its customer, this may result in this situation is illustrated below.) implementation of the Agency Quote dissatisfaction because the customer The following is an example of how Proposal.19 Nasdaq believes that the perceives that he or she did not obtain the proposal would work. Three market proposed rule change is consistent with the best price in the market. In contrast, makers and an ECN (MNA, MMB, MMC the provisions of Section 15A(b)(6) 20 under Nasdaq’s instant proposal, the and ECN1) are at the inside (i.e., best) and Section 11A of the Act.21 Section firm will receive the quoted price, thus price of each displaying in their quotes 15A(b)(6) 22 requires that the rules of a eliminating this concern. Finally, the (Agency Quotes for the market makers), registered national securities association proposal would address perceived customer orders to buy 1,000 shares at be designed to prevent fraudulent and inequities that currently exist between $30. MMA charges no access fee, MMB manipulative acts and practices, to market makers and ECN’s, as the charges a fee of .002 cents per share, promote just and equitable principles of proposal would allow market makers to MMC charges a fee of .007 cents per trade, to foster cooperation and charge a fee when they act as agent, share, and ECN1 charges a fee of .015 coordination with persons engaged in similar to that which ECNs currently cents per share. The following would be regulating, clearing, settling, processing charge to non-subscribers. displayed in the Nasdaq montage: information with respect to, and Nasdaq notes that in the past the SEC facilitating transactions in securities, to staff has taken the position that it is MMID Bid price Shares remove impediments to and perfect the inconsistent with the Firm Quote Rule, mechanism of a free and open market Rule 11Ac1–1 under the Act,25 for MMA@ ...... $30 1,000 market makers to charge a fee when MMB@ ...... 30 1,000 and a national market system, and, in their quotations are accessed.26 Nasdaq MMC@ ...... 2915¤16 1,000 general, to protect investors and the ECN1# ...... 2915¤16 1,000 public interest. Moreover, under Section believes that the SEC staff’s position 15A(b)(6) of the Act,23 the rules of a was, in part, premised on the fact that If two 1,000-share market orders to registered national securities association market makers would be charging when sell were entered into Nasdaq’s Small must not be designed to permit unfair the market maker was acting as Order Execution System (‘‘SOES’’) (or discrimination between customers, ‘‘principal’’ and in essence charging a its successor system),17 both orders issuers, brokers, or dealers. In Section mark-up customers it ordinarily would would be executed automatically and 11A(a)(1)(C) of the Act,24 Congress not levy such a charge on. Under the reported to the tape at 1,000 shares at found that it is in the public interest and current proposal, market makers would $30; to collect the access fee, MMB appropriate for the protection of be assessing a fee on customers (and would directly bill the market investors and the maintenance of fair participant who accessed its quote. and orderly markets to assure: (1) 25 See 17 CFR 240.11Ac1–1. Next, assume that the best market economically efficient execution of 26 Specifically, the SEC staff has stated in response to a request for ‘‘non-action relief ’’ that moves to MMC’s price, and a market securities transactions; (2) fair the Exchange Act Firm Quote Rule does not permit order is delivered through SOES to competition among brokers and dealers; a market maker posting a quote impose a fee on MMC’s bid, which represents a (3) the availability to brokers, dealers market participants that customarily trade with the customer buy limit order for $30 that is and investors of information with market maker at its quote without a mark-up. See letter from Robert L.D. Colby, Deputy Director, rounded down to $2915⁄16. In this case, respect to quotations and transactions in Division, Commission, to M. Joseph Messina, Vice the Nasdaq system would automatically securities; (4) the practicability of President, M.H. Meyerson & Co., Inc., dated June execute and lock in the trade at $2915⁄16 brokers executing investor’s orders in 12, 1998. In reaching this conclusion, the SEC staff (not $30), and report that price to the the best market; and (5) an opportunity noted that the Firm Quote Rule provides that each tape. The incoming market order would for investor’s orders to be executed responsible broker or dealer shall be obligated to 15 execute any order to buy or sell a subject security be executed at $29 ⁄16, and the market without the participation of a dealer. presented to it by another broker or dealer or any maker would be required to give the Nasdaq believes that by requiring other person, such as a retail customer, with whom customer buy limit order a fill of market participants to round their such responsible broker or dealer deals, at a price at least as favorable to such buyers or sellers as the $2915⁄16. As noted above, MMC must quotes and in effect display the fee in responsible broker’s or dealer’s published bid or disclose to its customer that, based on their quotation when the fee exceeds a published offer (exclusive of commission or the access fee it charges other market certain level, the proposal will avoid the commission equivalent or differential customarily participants, it is required to round the dissemination of potentially misleading charged by such responsible broker or dealer in customer’s limit order price down, and quotation information. Nasdaq believes connection with execution of any such order) in an amount up to its published quotation size. Id. The that while rounding will result in price that when quote-access fee exceed a SEC staff has interpreted the above parenthetical as 1 improvement of ⁄16th, the rounding half-a-cent per share, the net execution addressing mark-ups that are customarily charged may also delay the execution of the price materially differs from the quoted to retail customers by brokers. Id. Thus, according order. Additionally, MMC must disclose price. To the extent that this results in to the SEC staff, the Firm Quote Rule does not that because the incoming market order permit a market posting quotations in the public a market participant having to pass on quote to impose a fee, such as a liquidity or access is implicitly paying a fee by selling to the quoted price to the customer, it may fee, on market participants that customarily trade MMC’s customer for 1⁄16th less, MMC with a market maker at its quote without a mark- up. Id. will collect the .007 cents per share rounding the limit order price down 1⁄16th, Nasdaq from its customer (i.e., MMC deducts believes that MMC should not charge the incoming The SEC staff also stated that it interpreted NASD the .007 cents per share from the .0625 market order an additional access fee; rather, Rule 4613(b) (‘‘NASD Firm Quote Rule’’) as Nasdaq believes that MMC should collect its .007 requiring market makers to include in their posted cents per share in price improvement cents per share fee from its customer. quote an access fee they may charge. Id. Nasdaq 18 that the customer received). 19 See Amendment No. 1, note 3, above. expresses no opinion as to whether it concurs with the SEC staff’s prior interpretation of NASD Rule * * * * * 20 15 U.S.C. 78o–3(b)(6). 4613, but notes that this filing would permit market 21 15 U.S.C. 78k–1. makers to publish quotes without including the fee 17 See note 3, above. 22 15 U.S.C. 78o–3(b)(6). in its bid or offer, unless such fee exceeds a half- 18 Since the market maker has already implicitly 23 Id. a-cent, in which case the fee would implicitly be assessed a fee on the incoming market order by 24 15 U.S.C. 78k–1(a)(1)(C). included in the market maker’s quote.
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24435 others) that is in essence a commission ECN’s quote? If ECN fees are required to be and Exchange Commission (‘‘SEC’’ or solely when they are acting in an agency included in the quote, how should the fact ‘‘Commission’’) pursuant to Section capacity. Similar to ECNs. While a that an ECN may have a range of fees it 19(b)(1) of the Securities Exchange Act market maker may not be able to charge charges its broker-dealer subscribers be of 1934 (‘‘Act’’),1 and Rule 19b–4 under addressed? 2 a fee when it is acting in a principal’s 3. Should there be a maximum permissible the Act, a proposed rule change capacity for the reasons previously cited fee charged by market makers and ECNs, and creating a pilot program (‘‘pilot’’) by the SEC staff, Nasdaq believes that it if so, what should that fee be? Should market relating to the listing eligibility criteria would be consistent with the Exchange makers and ECNs be prohibited from for closed-end investment companies Act Firm Quote Rule to permit market charging a fee that is greater than one trading registered under the Investment makers to charge a fee when they are increment? Would disparate fees create Company Act of 1940 (‘‘Funds’’). acting as agent. Accordingly, Nasdaq confusion in the marketplace? Notice of the proposal was published 4. Will competition ensure that fees are not in the Federal Register on February 3, believes that this rule proposal is used as a barrier to access? consistent with Section 11A of the 1999.3 The Commission received one Act.27 Persons making written submissions comment letter on the proposal. On should file six copies thereof with the April 21, 1999, the NYSE submitted (B) Self-Regulatory Organization’s Secretary, Securities and Exchange Amendment No. 1 to the proposed rule Statement to Burden on Competition Commission, 450 Fifth Street, N.W., change.4 This notice and order approves Nasdaq does not believes that the Washington, D.C. 20549–0609. Copies of the proposed rule change as amended proposed rule change will result in any the submission, all subsequent and seeks comment from interested burden on competition that is not amendments, all written statements persons on Amendment No. 1. with respect to the proposed rule necessary or appropriate in furtherance II. Description of the Proposal of the purposes of the Act, as amended. change that are filed with the Commission, and all written The Exchange generally lists Funds (C) Self-Regulatory Organization’s communications relating to the either in connection with an initial Statement on Comments on the proposed rule change between the public offering or shortly thereafter, Proposed Rule Change Received From Commission and any person, other than when the fund does not have a three- Members, Participants, or Others those that may be withheld from the year operating history and is thus Written comments were neither public in accordance with the considered newly formed. On January solicited nor received. provisions of 5 U.S.C. 552, will be 26, 1999, the Exchange proposed to available for inspection and copying at codify its policy regarding the listing of III. Date of Effectiveness of the these newly organized Funds.5 The Proposed Rule Change and Timing for the principal office of the NASD. All submissions should refer to File same day, the Commission granted Commission Action No. SR–NASD–99–16 and should be partial accelerated approval to the Within 35 days of the date of submitted by June 1, 1999. proposal as a three-month pilot, publication of this notice in the Federal effective until April 29, 1999. For the Commission, by the Division of Register or within such longer period: Market Regulation, pursuant to delegated Under the pilot, if a Fund has at least (i) As the Commission may designate up authority.28 $60 million in net assets, as evidenced to 90 days of such date if it finds such Margaret H. McFarland, by a firm underwriting commitment, the Exchange will generally authorize the longer period to be appropriate and Deputy Secretary. publishes its reasons for so finding or listing of the Fund. This requirement is [FR Doc. 99–11361 Filed 5–5–99; 8:45 am] (ii) as to which the self-regulatory the minimum net asset requirement for organization consents, the Commission BILLING CODE 8010±01±M listing. Additionally, the Exchange will: retains the discretion to deny listing to A. By order approve such proposed SECURITIES AND EXCHANGE a Fund if it determines that, based upon rule change, or COMMISSION a comprehensive financial analysis, it is B. Institute proceedings to determine unlikely that the particular Fund will be whether the proposed rule change [Release No. 34±41346; File No. SR±NYSE± able to maintain its financial status. Any should be disapproved. 99±02] Fund with less than $60 million in net IV. Solicitation of Comments assets will not be considered for listing. Self-Regulatory Organizations; New Lastly, Funds are subject to continued Interested persons are invited to York Stock Exchange, Inc.; Order financial listing standards. The submit written data, views, and Approving Proposed Rule Change and Exchange generates a monthly exception arguments concerning the foregoing, Notice of Filing and Order Granting report to identify companies below the including whether the proposed rule Accelerated Approval of Amendment change is consistent with the Act. The No. 1 to Proposed Rule Change 1 15 U.S.C. 78s(b)(1). Commission asks for comments in Permanently Approving the Pilot 2 17 CFR 240.19b–4. particular on the following questions: Program for the Listing Eligibility 3 See Securities Exchange Act Release No. 40979 Criteria for Closed-End Management (January 26, 1999), 64 FR 5332 (February 3, 1999). 1. Should market makers be permitted to 4 See letter from James E. Buck, Senior Vice charge a fee to trade with limit orders in their Investment Companies Registered Under The Investment Company Act of President and Secretary, NYSE, to Jonathan G. Katz, agency quote lines? In addition to charging Secretary, SEC, April 21, 1999 (‘‘Amendment No. for agency orders displayed in their agency 1940 1’’). In Amendment No. 1, the NYSE added a quote lines, should market makers be requirement that an applicant Fund, which is a permitted to charge a fee for proprietary April 29, 1999. spin-off or carve-out, show that the new entity will orders displayed in their agency quote lines? I. Introduction satisfy the net assets test by submitting to the 2. Should any fee charged by market Exchange a letter from its parent company’s makers for orders executed against their On January 26, 1999, the New York investment banker or other financial advisor. 5 agency quote lines be included in the quoted Stock Exchange, Inc. (‘‘NYSE’’ or The Exchange sought both accelerated approval to implement a three-month pilot program to amend price? Should ECN fees be included in an ‘‘Exchange’’) filed with the Securities its Listed Company Manual with respect to Funds and permanent approval of the rule change 27 15 U.S.C. 78k–1. 28 17 CFR 200.30–3(a)(12). implemented in the pilot.
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Exchange’s continued listing standards. subject to the Exchange’s distribution prior to the thirtieth day after the date If a Fund is so identified by the and corporate governance standards. of publication of notice of filing in the Exchange’s Financial Compliance Finally, the Exchange stated that Federal Register. The amendment Department, it will be subject to the grandfather provisions are not necessary addresses those Funds that would not same compliance and monitoring because the $60 million threshold is the be the subject of an underwriting (i.e., procedures imposed upon any other minimum requirement imposed. The spin-offs and carve-outs), and as such, NYSE-listed company so identified. Exchange also noted that it is would be unable to submit the requisite The Exchange is proposing an developing specific standards to judge a undertaking letter. The proposed exception to the ‘‘Firm underwriting Fund for continued listing status. amendment would permit these Funds commitment’’ required in the pilot.6 to show the NYSE that they meet the The Exchange contends that spin-offs IV. Discussion and carve-outs are not the subjects of an The Commission finds that the asset test through another acceptable underwriting and, therefore, are unable proposed rule change, as amended, is means (i.e., through a representation by to submit the requisite undertaking consistent with the requirements of the the parent company’s investment banker letter. Accordingly, an applicant Fund, Act and the rules and regulations or other financial advisor). Because the which is a spin-off or carve-out, must thereunder applicable to a national Commission believes the amendment is show that the new entity will satisfy the securities exchange.11 Specifically, the an appropriate accommodation for spin- net assets test by submitting to the Commission believes the proposal is offs and carve-outs, which could not Exchange a letter from its parent consistent with the Section 6(b)(5) 12 comply with the original proposal, the company’s investment banker or other requirements that the rules of an Commission finds good cause for financial advisor. exchange be designed to promote just accelerating approval of Amendment and equitable principals of trade, to No. 1. III. Summary of Comments remove impediments to and perfect the The Commission received one mechanisms of a free and open market V. Solicitation of Comments comment letter from the Investment and a national market system, and, in Interested persons are invited to Company Institute (‘‘ICI’’),7 which general, to protest investors and the submit written data, views, and opposed the proposal.8 The Exchange public. responded to this letter.9 The Commission recognizes that in arguments concerning Amendment No. In its letter the ICI questioned a many cases the applicant Fund is not a 1, including whether the proposed number of aspects of the proposal, traditional operating entity and amendment is consistent with the Act. including: the reason for proposing therefore it is not possible to apply the Persons making written submissions solely a net asset based eligibility listing earnings standards specified in the should file six copies thereof with the standard; the rationale for the proposed Exchange’s Listed Company Manual at Secretary, Securities and Exchange $60 million threshold; the application of the time of listing. Thus, the Commission, 450 Fifth Street, N.W., the requirement (i.e., whether funds Commission believes that the Washington, D.C. 20549–0609. Copies of currently listed are grandfathered from Exchange’s proposed listing standard the submission, all subsequent the requirements); and, the existence of serves as an acceptable means for amendments, all written statements any other listing standards and screening out those Funds that the with respect to the proposed rule requirements. Exchange believes are unsuitable for change that are filed with the In its response, the Exchange argued listing because of insufficient assets. Commission, and all written that the proposed rule change is merely The Commission recognizes that the net communications relating to the a codification of an existing practice, assets test in intended as a minimum proposed rule change between the which has evolved over time as a way standard and that the Exchange may, Commission and any person, other than with respect to a given Fund, determine to assess the financial viability of a those that may be withheld from the that, notwithstanding sufficient net newly organized Fund that does not public in accordance with the have a three-year operating history assets, the Fund may otherwise be provisions of 5 U.S.C. § 552, will be against which the Exchange’s general unsuited for listing. available for inspection and copying at listing standards can be applied10 The The Commission carefully considered the Commission’s Public Reference Exchange also explained that ICI’s the concerns expressed by the ICI in its concern that the net asset standard is letter opposing the proposal. Ultimately, Room. Copies of such filing will also be the only standard applicable to Funds is the Commission concluded that the net available for inspection and copying at unfounded because Funds are also asset standard codified by the Exchange the principal office of the Exchange. All in the proposal is a clear, submissions should refer to File No. 6 See Amendment No. 1, supra note 4. nondiscriminatory standard that should SR–NYSE–99–02 and should be 7 The ICI is a national investment company promote transparency with respect to submitted by May 27, 1999. industry association. Its membership includes 7,408 the Exchange listing standards for open-end investment companies (‘‘mutual fund’’), Funds and is not inconsistent with the VI. Conclusion 499 closed-end investment companies and eight Act. The Commission believes that the sponsors of unit investment trusts. The ICI notes It is therefore ordered, pursuant to proposed standard should promote that mutual fund members have assets of about Section 19(b)(2) of the Act,13 that the $5.468 trillion, accounting for approximately 95% certainty and reduce costs in the listing proposed rule change (SR–NYSE–99– of total industry assets, and have over 62 million process which should benefit investors individual shareholders. 02), including Amendment No. 1, 8 and other market participants. See letter from Ari Burstein, Assistant Counsel, The Commission finds good cause for relating to the listing eligibility criteria ICI, to Jonathan G. Katz, Secretary, SEC, March 1, for closed-end management investment 1999. approving proposed Amendment No. 1 9 See letter from James E. Buck, Senior Vice companies registered under the President and Secretary, NYSE, to Jonathan G. Katz, 11 In approving the proposed rule change, the Investment Company Act of 1940, is Secretary, SEC, April 16, 1999. Commission has considered its impact on approved. 10 The NYSE noted that the proposal omitted a efficiency, competition, and capital formation. 15 projected earnings requirement that the Exchange U.S.C. 78c(f). determined provided minimal incremental value. 12 15 U.S.C. 78f(b)(5). 13 15 U.S.C. 78s(b)(2).
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For the Commission, by the Division of amendment to Exchange Rule 347 employment discrimination from Market Regulation, pursuant to delegated would clarify that the Exchange’s Rule arbitration unless the parties have authority.14 should not be interpreted to preclude agreed to arbitrate the claim after it has Margaret H. McFarland, employees from brining employment- arisen.8 Deputy Secretary. related claims against members and Under the Act, self-regulatory [FR Doc. 99–11360 Filed 5–5–99; 8:45 am] member organizations before the EEOC, organizations (‘‘SROs’’) like the BILLING CODE 8010±01±M NLRB, or state or local Exchange are assigned rulemaking and antidiscrimination agencies.5 enforcement responsibilities to perform The proposed amendment would their role in regulating the securities SECURITIES AND EXCHANGE address an issue recently raised by a industry for the protection of investors COMMISSION Teamsters Union Local with the NLRB. and other related purposes. Pursuant to The Teamsters Union Local alleged that 9 [Release No. 34±41344; File No. SR±NYSE± Section 19(b)(2) of the Act, the 99±04] the Exchange’s prior arbitration policy Commission is required to approve an interfered with rights guaranteed by the SRO rule change like the Exchange’s if Self-Regulatory Organization; New National Labor Relations Act by it determines that the proposal is York Stock Exchange, Inc.; Order prohibiting employees from filing and consistent with applicable statutory Approving Proposed Rule Change pursing charges with the NLRB. While standards.10 These standards include Relating to Amending Rule 347 To the Exchange has never interpreted its Section 6(b)(5) of the Act,11 which Expressly Allow Employees To Bring arbitration rules to preclude employees provides that the Exchange’s rules must Employment Related Claims Before the of members or member organizations be designed to, among other things, EEOC, NLRB, or State or Local Anti- from pursuing such charges, the ‘‘promote just and equitable principles Discrimination Agencies Exchange determined it would resolve of trade’’ and ‘‘protect investors and the the issue by amending Exchange Rule public interest.’’ April 28, 1999. 347 to codify the existing Exchange IV. Conclusion I. Introduction interpretation. It is therefore ordered, pursuant to III. Discussion On February 5, 1999, the New York Section 19(b)(2) of the Act,12 that the Stock Exchange, Inc. (‘‘NYSE’’ or The Commission finds that the proposed rule change (SR–NYSE–99– ‘‘Exchange’’) filed with the Securities proposed rule change is consistent with 04) is approved. and Exchange Commission the requirements of the Act and the For the Commission, by the Division of (‘‘Commission’’), pursuant to Section rules and regulations thereunder Market Regulation, pursuant to delegated 19(b)(1) of the Securities Exchange Act applicable to a national securities authority.13 of 1934 (‘‘Act’’),1 and Rule 19B–4 exchange,6 and in particular, with the Margaret H. McFarland, thereunder,2 a proposed rule change requirements of Section 6(b)(5).7 Deputy Secretary. amending Exchange Rule 347 to Specifically, the Commission finds that [FR Doc. 99–11362 Filed 5–5–99; 8:45 am] expressly allow employees to bring clarifying the rights of employees to BILLING CODE 8010±01±M employment related claims before the bring employment-related claims before Equal Employment Opportunity the EEOC, NLRB, or any state or local Commission (‘‘EEOC’’), National labor anti-discrimination agencies serves to SMALL BUSINESS ADMINISTRATION Relations Board (‘‘NLRB’’), or state or promote just and equitable principles of local anti-discrimination agencies. trade, and, in general, to protect the Region 1 Advisory Council; Public The proposed rule change was public interest. The proposed rule Meeting published for comment in the Federal change ensures that employees, Register on March 18, 1999.3 No members and member organizations The U.S. Small Business comments were received on the have a fair and impartial forum for the Administration Region 1 Advisory proposal. This order approves the resolution of their disputes. Council, located in the geographical proposal. By changing its rule, the Exchange area of Augusta, will hold a public codifies its current interpretation of meeting at 10:00 a.m. on Wednesday, II. Description of the Proposal Exchange Rule 347 to provide that May 26th, 1999 at the Augusta Civic The proposed rule change codifies the Exchange Rules are not intended to, and Center, Civic Center Drive, Augusta, Exchange’s interpretation of Exchange should not be construed to prohibit Maine, to discuss such matters as may Rule 347 regarding the arbitration of employees from bringing employment- be presented by members, staff of the employment disputes. Generally, related claims against members or U.S. Small Business Administration, or Exchange Rule 347 requires that any member organizations before the EEOC, others present. controversy between a registered NLRB, or any state or local anti- For further information, write or call representative and the member or discrimination agencies. This Mary McAleney, District Director, U.S. member organization that employs him interpretation is consistent with the arising out of employment or the Exchange’s recent amendment to Rule 8 See Securities Exchange Act Release No. 40858 termination of employment be settled by 347, which excluded claims of (December 29, 1998) 64 FR 1051 (January 7, 1999). 9 15 U.S.C. 78s(b)(2). arbitration. This requirement does not 10 The Commission oversees the arbitration extend to statutory employment for Exchange arbitration only where the parties programs of the SROs, including the Exchange’s, discrimination claims.4 The proposed have agreed to arbitrate the claim after it has arisen. through inspections of the SRO facilities and the 5 The Commission notes that the amendment review of SRO arbitration rules. Inspections are should not affect the obligation, under NYSE rules, 14 17 CFR 200.30–3(a)(12). conducted to identify areas where procedures of Exchange members of their employees to should be strengthened, and to encourage remedial 1 15 U.S.C. 78s(b)(1). arbitrate claims brought by customers against them. steps either through changes in administration or 2 17 CFR 240.19b–4. 6 In approving this rule, the Commission has through the development of rule changes. 3 Securities Exchange Act Release No. 41151 considered the proposed rule’s impact on 11 15 U.S.C. 78f(b)(5). (March 10, 1999) 64 FR 13460. efficiency, competition, and capital formation. 15 4 See Exchange Rules 347 and 600. Under the U.S.C. 78c(f). 12 15 U.S.C. 78s(b)(2). Exchange’s Rules, discrimination claims are eligible 7 15 U.S.C. 78F(b)(5). 13 17 CFR 200.30–3(a)(12).
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Small Business Administration, 40 mandatory requirement of the Nuclear have the greatest adverse impact (actual Western Avenue, Augusta, Maine Regulatory Commission set out in the or potential) on the relevant United 04330, 207–622–8378. technical specifications when the plants States products must be identified as Shirl Thomas, were licensed. ‘‘priority foreign countries,’’ unless they Director, External Affairs. William S. Moore, are entering into good faith negotiations [FR Doc. 99–11307 Filed 5–5–99; 8:45 am] Senior Manager, Administrative Services. or are making significant progress in bilateral or multilateral negotiations to BILLING CODE 8025±01±P [FR Doc. 99–11414 Filed 5–5–99; 8:45 am] provide adequate and effective BILLING CODE 8120±08±P protection for intellectual property rights. In identifying countries in this TENNESSEE VALLEY AUTHORITY manner, the USTR is directed to take OFFICE OF THE UNITED STATES into account the history of intellectual Paperwork Reduction Act of 1995, as TRADE REPRESENTATIVE Amended by Pub. L. 104±13; Proposed property laws and practices of the foreign country, including any previous Collection; Comment Request Identification of Countries That Deny Adequate Protection, or Market identifications as a priority foreign April 28, 1999. Access, for Intellectual Property Rights country, and the history of efforts of the AGENCY: Tennessee Valley Authority. Under Section 182 of the Trade Act of United States, and the response of the foreign country, to achieve adequate and ACTION: Proposed collection; comment 1974 effective protection and enforcement of request. AGENCY: Office of the United States intellectual property rights. In making SUMMARY: The proposed information Trade Representative. these determinations, the USTR must collection described below will be ACTION: Identification of countries that consult with the Register of Copyrights, submitted to the Office of Management deny adequate protection for the Commissioner of Patents and and Budget (OMB) for review, as intellectual property rights or market Trademarks, other appropriate officials required by the Paperwork Reduction access for persons who rely on of the Federal Government and take into Act of 1995 (44 U.S.C. Chapter 35, as intellectual property protection. account information from other sources amended). The Tennessee Valley such as information submitted by Authority is soliciting public comments SUMMARY: The United States Trade interested persons. on this proposed collection as provided Representative (USTR) is directed by On April 30, 1999, the USTR by 5 CFR 1320.8(d)(1). Requests for section 182 of the Trade Act of 1974, as identified 53 trading partners as failing information, including copies of the amended (the Trade Act) (19 U.S.C. to provide adequate and effective information collection proposed and 2242), to identify those foreign countries intellectual property protection and fair supporting documentation, should be that deny adequate and effective and equitable market access to persons directed to the Agency Clearance protection of intellectual property rights who rely on such protection. In Officer: Wilma H. McCauley, Tennessee or deny fair and equitable market access addition, China and Paraguay will be Valley Authority, 1101 Market Street to United States persons that rely upon subject to continued monitoring under (WR 4Q), Chattanooga, Tennessee intellectual property protection, and section 306 of the Trade Act. Sixteen trading partners were placed 37402–2801; (423) 751–2523. those foreign countries determined to be on the administratively-created Comments should be sent to the priority foreign countries. These ‘‘priority watch list,’’ including Agency Clearance Officer no later than identifications must be made within 30 Argentina, the Dominican Republic, July 6, 1999. days of the date on which the annual report is submitted to Congressional Egypt, the European Union, Greece, SUPPLEMENTARY INFORMATION: Type of committees under section 181(b) of the Guatemala, India, Indonesia, Israel, request: Regular submission, proposal to Trade Act. They are presented below. Italy, Kuwait, Macao, Peru, Russia, extend without revision a currently DATES: Turkey and Ukraine. Of these countries, approved collection of information These identifications took place on April 30, 1999. at least Israel and Kuwait will be subject (OMB control number 3316–0016). to an interim review in 1999. Thirty- ADDRESSES: Office of the United States Title of Information Collection: seven countries were placed on the Trade Representative, 600 17th Street, Farmer Questionnaire-vicinity of special 301 ‘‘watch list,’’ including Nuclear Power Plants. NW, Washington, DC 20508. Australia, Belarus, Bolivia, Brazil, Frequency of Use: On occasion. FOR FURTHER INFORMATION CONTACT: Canada, Chile, Colombia, Costa Rica, Type of Affected Public: Individuals Claude Burcky, Director for Intellectual Czech Republic, Denmark, Ecuador, or households, and farms. Property, (202) 395–6864, Andrew Hungary, Ireland, Jamaica, Japan, Small Business or Organizations Bowen, Deputy Director for Intellectual Jordan, Korea, Lebanon, Mexico, New Affected: No. Property, (202) 395–6864, or Geralyn S. Zealand, Oman, Pakistan, the Federal Budget Functional Category Ritter, Assistant General Counsel (202) Philippines, Poland, Qatar, Romania, Code: 271. 395–6800. Saudi Arabia, Singapore, South Africa, Estimated Number of Annual SUPPLEMENTARY INFORMATION: Section Spain, Sweden, Taiwan, Thailand, Responses: 300. 182 of the Trade Act requires the USTR U.A.E. (United Arab Emirates), Uruguay, Estimated Total Annual Burden to identify within 30 days of the Venezuela, and Vietnam. Of these, at Hours: 150. publication of the National Trade least Colombia, the Czech Republic, Estimated Average Burden Hours Per Estimates Report all trading partners Korea, Poland and South Africa will be Response: .5. that deny adequate and effective subject to interim reviews during the Need For and Use of Information: protection of intellectual property rights coming year. The USTR also announced This survey is used to locate, for or deny fair and equitable market access that Malaysia and Hong Kong would be monitoring purposes, rural residents, to United States persons that rely upon subject to out-of-cycle reviews in home gardens, and milk animals within intellectual property protection. Those September 1999. Finally, the USTR a five mile radius of a nuclear power countries that have the most onerous or announced the initiation of WTO plant. The monitoring program is a egregious acts, policies, or practices that dispute settlement cases against
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Argentina, Canada the European Union priorities and the 1999 NTE Report and Beyond implementation, the for violations of the Agreement of public comments submitted to USTR to negotiations, to begin in early 2000, will Trade-Related Aspects of Intellectual assess foreign country practices that we be comprised of a new round of Property Rights (TRIPS). seek to eliminate. Based on this review, liberalization commitments in services Claude Burcky, USTR has determined that the U.S. trade, a new phase in agriculture policy Director of Intellectual Property. trade expansion priorities include the reform and market-opening [FR Doc. 99–11425 Filed 5–5–99; 8:45 am] launching of a new, multilateral round undertakings, and other negotiations on of global trade negotiations; ensuring topics to be agreed at the meeting, BILLING CODE 3190±01±M that WTO Members fully implement possibly a new round of industrial tariff existing commitments; ongoing strategic and non-tariff negotiations. Certain OFFICE OF THE UNITED STATES enforcement of U.S. rights under Members have also identified foreign TRADE REPRESENTATIVE bilateral, regional, and multilateral trade direct investment and competition agreements and under U.S. trade laws; policy as possible topics for negotiation. Report on Trade Expansion Priorities and integrating China and other The important relationship of trade and Pursuant to Executive Order 13116 economies into the world trading the environment, as identified in (``Super 301'') system. The USTR is not identifying any President Clinton’s May 1998 address ‘‘priority foreign country practices’’ before the WTO, is an area that will AGENCY: Office of the United States within the meaning of the Executive require further work in the WTO, as will Trade Representative. Order at this time, but does find that a forging the consensus on addressing ACTION: Notice. number of practices warrant the trade and labor. initiation of WTO dispute settlement Launching the round will also require SUMMARY: Notice if hereby given that the attention to institutional improvements United States Trade Representative proceedings or other actions in the within the WTO to facilitate trade, to (USTR) has submitted the report on context of our bilateral trade relationships. improve the participation of less United States trade expansion priorities developed economies in the world published herein to the Committee on A. The Third Ministerial Conference economy, and to coordinate effectively Finance of the United States Senate and and the New Round with other international bodies such as Committee on Ways and Means of the Ambassador Charlene Barshefsky, the the IMF and World Bank. The United United States House of Representatives United States Trade Representative, will States seeks to strengthen public pursuant to the provisions (commonly chair the WTO’s Third Ministerial confidence in the WTO as an institution referred to as ‘‘Super 301’’) set forth in Conference in Seattle, Washington, by improving its transparency and Executive Order No. 13116 of March 31, November 30—December 3, 1999. The openness, particularly in WTO dispute 1999. event, which will be the largest trade settlement proceedings, including the DATES: The report was submitted on meeting ever held in the United States, review of the system that is to be April 30, 1999. will set the agenda for the WTO for the completed before the Seattle meeting. FOR FURTHER INFORMATION CONTACT: next decade and launch a new round of Civil society must be able to contribute Demetrios Marantis, Assistant General global trade negotiations. The to the work of the WTO, to ensure both Counsel, Office of the U.S. Trade Administration has engaged in an that the WTO hears many points of view Representative, 600 17th Street, N.W., extensive consultative process to including those from business, labor, Washington, DC 20508, 202–395–3581. develop this agenda, involving the environmental, consumer and other SUPPLEMENTARY INFORMATION: The text of broadest range of citizens concerned groups, and that its work will rest on the the USTR report is as follows. about trade. Broadly speaking, the broadest possible consensus. agenda will: set a negotiating agenda Finally, the U.S. vision for the new Identification of Trade Expansion and work program; provide for round requires that we set an agenda Priorities Pursuant to Executive Order institutional reform, including that accommodates rapid technological 13116 transparency, and ensure that the WTO developments and addresses the Last month, the United States Trade will continue to be a forum for on-going broadest range of concerns. The Representative (USTR) released the trade liberalization and reform, by Ministerial, and the time prior to the President’s 1999 Trade Policy Agenda delivering results at Seattle. meeting itself, provide the United States and the 1999 National Trade Estimate At the meeting, Trade Ministers from the opportunity to showcase the Report on Foreign Trade Barriers (NTE around the world will focus on the relevance of the WTO to the information Report). This report builds on the prior important issues facing the trading revolution, the development of two reports and is submitted pursuant system and the new economy of the 21st electronic commerce, and other rapidly to Executive Order 13116 of March 31, century. As a starting point, the United changing, high-technology fields. We 1999. The ‘‘Super 301’’ provisions of the States joins other nations in seek to reach agreements expanding the Executive Order direct the USTR to emphasizing the important issue of product coverage in the landmark review U.S. trade expansion priorities implementation of existing Information Technology Agreement and identify priority foreign country agreements—from agriculture to textiles. (ITA) and expand on the 1998 practices, the elimination of which is As we approach January 1, 2000, the Ministerial Declaration on Electronic likely to have the most significant majority of transition periods in the Commerce which calls on WTO potential to increase United States Agreements on Trade-Related Aspects of Members to refrain from imposing exports, either directly or through the Intellectual Property Rights (TRIPS), customs duties on electronic establishment of a beneficial precedent. Trade-Related Investment Measures transmissions. We also intend to (TRIMS), and Customs Valuation will strengthen the system to contribute to I. Trade Expansion Priorities and expire for most developing countries. the Administration’s wider policy of Priority Foreign Country Practices Ensuring compliance with these eradicating the potential for bribery and In preparing this report, USTR has Agreements will be an important feature corruption and promoting economic reviewed the 1999 Trade Policy Agenda of our work as we shape the WTO’s efficiency, by completing an agreement to identify U.S. trade expansion forward agenda. on transparency in government
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24440 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices procurement at the Seattle meeting. United States is also concerned about aegis of the Committee on Antidumping Expanding market access opportunities, implementation of existing customs Practices and its Ad Hoc Group on including through early agreements to valuation obligations, which is Implementation to secure better liberalize tariffs in sectors first discussed in further detail below. adherence to WTO rules and procedures identified in APEC (i.e., chemicals, • Trade Related Investment Measures governing the conduct of antidumping energy and environment-related goods, (TRIMs)—December 31, 1999, is the investigations and administrative medical and scientific equipment, forest deadline established in the TRIMs reviews. The increased use of these products, fish, gems and jewelry, and Agreement for developing countries to remedies by a growing number of WTO toys), remains a priority. eliminate measures which they notified Members with different legal systems as inconsistent with the TRIMs and levels of experience poses special B. Implementation of Existing WTO Agreement. Throughout the remainder challenges to U.S. exporters. The United Commitments of 1999, the United States will be States expects strict compliance with Full implementation of existing WTO monitoring steps taken by those the WTO Antidumping Agreement’s agreements is critical to ensuring that countries due to come into compliance substantive obligations, as well as its the United States achieves the full by this deadline, and will be prepared rules which guarantee transparency and benefit of what it bargained for in the to bring dispute settlement cases for due process, so that these remedies can Uruguay Round of multilateral trade measures which have not been removed remain a fair yet effective complement negotiations, as well as to maintaining by the agreed deadline. to ongoing trade liberalization. public confidence in an open trading In addition, USTR will work system and building public support for bilaterally and within the Council for C. Strategic Enforcement of WTO Rights the new round of negotiations. There are Trade in Services to ensure the full and U.S. Trade Laws five critical aspects of WTO implementation of Members’ One of this Administration’s top trade implementation: compliance with WTO commitments under the Fourth Protocol expansion priorities is vigorous commitments that entered into effect in to the General Agreement on Trade in monitoring and enforcement of trade January 1995; compliance with WTO Services (GATS), i.e., the Basic Telecom agreements, which includes the active commitments that are subject to Agreement, which entered into force on use of the WTO dispute settlement transition periods or phase-in February 5, 1998, and the Fifth Protocol process and strategic application of U.S. provisions, many of which will enter to the GATS, i.e., the Financial Services trade laws. into effect by January 1, 2000; Agreement, which entered into force on acceptance of the protocols on basic March 1, 1999. The United States will 1. WTO Dispute Settlement Process telecommunications services and continue to insist that all countries that Since the WTO’s creation in 1995, the financial services and implementation failed to meet the deadline for United States has filed more of the corresponding commitments; acceptance of these two agreements complaints—44 to date—than any other compliance with accession protocols; bring their commitments into force as WTO Member and has participated as a and compliance with the rulings soon as possible. For the Basic Telecom third party in a number of other cases. resulting from WTO dispute settlement Agreement, those countries are: Brazil, Our overall record of success is very proceedings in a timely and complete Dominica, Guatemala, Papua New strong. We have prevailed in 22 of the manner. Guinea, and the Philippines. For the 24 U.S. complaints acted upon so far, The primary means of enforcing WTO Financial Services Agreement, those either by successful settlement or panel commitments that have entered into countries are: Australia, Bolivia, Brazil, victory. These favorable rulings and effect is the WTO dispute settlement Bulgaria, Costa Rica, Dominican settlements have involved an array of mechanism, which is discussed in Republic, El Salvador, Luxembourg, sectors within the fields of further detail below. In the coming Ghana, Honduras, Jamaica, Kenya, manufacturing, agriculture, services, months, one of USTR’s top priorities Nigeria, Nicaragua, the Philippines, and intellectual property. will be to focus on Members’ Poland, Slovenia, and Uruguay. preparations for the phase-in by January USTR will continue to use WTO a. WTO Disputes 1, 2000 of commitments in three critical committees and bilateral mechanisms to As a result of this year’s review of its areas: address implementation issues. For trade expansion priorities, and its • Intellectual Property Protection— example, the United States will work monitoring of compliance with U.S. WTO developing country members are through the WTO Committee on trade agreements, the Administration required to implement most of their Agriculture to seek compliance with the will take the following actions to commitments under the Agreement on various obligations under the enforce U.S. rights under those Trade Related Aspects of Intellectual Agriculture Agreement, including those agreements: Property Rights (TRIPS) by the end of on tariff-rate quotas, domestic support EU—Avionics. The United States will this year. We are monitoring this closely and export subsidies. Likewise, the request WTO consultations with the and are prepared to both assist countries United States will be vigilant in its European Union (EU) on French in developing laws and enforcement enforcement of textile quotas and government subsidies for avionics mechanisms at their request and invoke implementation of textile market access equipment under the WTO Agreement dispute settlement procedures in the requirements overseas. Preventing on Subsidies and Countervailing event members fail to meet their circumvention is a high priority as well. Measures. In an effort to displace U.S.- obligations. Last year, we reached an important new sourced flight management systems, the • Customs Valuation—More than 50 agreement with Hong Kong on measures French government, with European countries are required to fully to improve information-sharing and Commission approval, has agreed to implement the obligations of the strengthen cooperation to prevent grant 140 million French francs Agreement on Customs Valuation—a circumvention, and we are working (approximately 40 percent of the critical obligation in realizing market with Macau, China and others on projected costs) between 1997–1999 for access. Full and effective similar initiatives. a project involving Sextant Avionique of implementation of this Agreement will In addition, we will continue to work France and Smiths Industries of the head off disputes in the future. The with other WTO Members under the United Kingdom to jointly develop a
VerDate 26-APR-99 18:27 May 05, 1999 Jkt 183247 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24441 new flight management system adapted Customs Practices: The benefits of 2. U.S. Trade Laws to Airbus aircraft. The aid takes the form market access commitments are The U.S. trade laws are a vitally of a ‘‘reimbursable advance payment’’ to undermined when countries engage in important means of ensuring respect for be repaid on a percentage of sales of the certain customs practices, such as the U.S. rights and interests in trade. We new system; however no repayment is use of minimum reference prices to will continue to challenge aggressively required if the program is unsuccessful. determine the customs value of an market access barriers abroad using India—Auto TRIMs. The United imported good. The WTO Customs Section 301, Special 301, Section 1377, States will request WTO consultations Valuation Agreement (CVA) stipulates Super 301 and Title VII 1 to open foreign with India on its new auto policy. Last that the transaction price is the primary markets and ensure fair treatment for year, India implemented new measures basis for customs valuation our goods and services, protect U.S. governing investments in the determinations, and the U.S. intellectual property rights, and ensure automotive industry. All new and Government is working to ensure that compliance with telecommunications existing firms wishing to operate auto countries comply fully with their agreements. These provisions work in manufacturing investments in India are obligations under the CVA. We are tandem with dispute settlement required to sign a standardized actively pursuing the issue of reference procedures, and also assist us in agreement with the Government of India prices in the WTO Committee on completing and enforcing agreements that contains local content and foreign Customs Valuation and are closely with trading partners that are not WTO exchange balancing requirements. The examining reports of non-compliance Members or in areas not covered by Indian program would inhibit the free with CVA commitments, particularly in WTO rules. In addition, this flow of trade and investment and is those countries with current obligations, Administration is fully committed to inconsistent with India’s obligations such as Brazil, India and Mexico. We using U.S. antidumping, countervailing under the WTO Agreement on Trade- are soliciting additional information on duty, and safeguards laws and will Related Investment Measures (TRIMs). these practices and, as appropriate, will insist that America’s trading partners According to the American Automobile subsequently pursue dispute settlement play by the rules. Manufacturers Association (AAMA) the consultations with the relevant Section 301: On April 29, USTR approximate size of the vehicle market countries that do not satisfactorily initiated an investigation under Section in India in 1998 was 604,000 units. A address these concerns. 301 of the Trade Act of 1974, as large portion of vehicles sold in India amended, regarding Canadian are produced locally. Auto parts sales b. Dispute Settlement Rules regulations affecting tourism in the U.S.- into India are also reduced by these USTR’s review of trade expansion Canada border region. Measures measures. priorities has shown that, while the Korea—Barriers to the Import and maintained by the Province of Ontario WTO dispute settlement system Distribution of Foreign Beef. In response generally prohibit U.S. fishermen from generally works well, improvements in to a 1989 GATT panel ruling, Korea keeping the fish they catch on lakes the rules governing compliance with agreed to phase out its import lying across the Minnesota-Ontario panel and Appellate Body reports are restrictions on beef. However, Korea border if the U.S. fisherman does not necessary. The EU’s failure to simply replaced its ban with a spend the night in an Ontario temporary quota and comprehensive implement a WTO-consistent banana commercial establishment or otherwise restrictions on the ability to import and regime following WTO dispute contribute to the Ontario tourist distribute beef, including a requirement settlement proceedings, and its industry. Canadian federal measures that imported beef be sold in separate impending failure to eliminate its impose work permit requirements on retail establishments. These and other import ban on meat produced with U.S. fishing guides who conduct tours barriers prevented U.S. exporters from hormones, illustrate how a Member that on those lakes. These measures fully utilizing the 1997 and 1998 fails to implement WTO dispute discriminate in favor of Canadian tourist minimum market access commitments settlement rulings can continue causing establishments. Korea had made for beef. In 1998, the harm to U.S. exporters for an extended Special 301: Through the Special 301 underfill of Korea’s beef import quota period of time. The United States is process, USTR systematically monitors was approximately 60 percent. seeking improvements in the rules levels of intellectual property protection The U.S. Government has worked to governing implementation of panel and around the world. Each year, USTR establish a market-driven beef import Appellate Body reports in the context of identifies those foreign countries that system in Korea by seeking the this year’s review of the WTO Dispute deny adequate and effective protection elimination of Korean Government Settlement Understanding (DSU), and of intellectual property rights or fair and measures that impede the entry and there is ongoing review regarding other equitable market access for U.S. persons distribution of foreign beef. In possibilities for improvement. that rely on intellectual property September and November 1998, the U.S. In the interim, we will continue to protection. As a result of the 1999 and Korean Governments held two exercise our rights to suspend Special 301 review, USTR placed 17 rounds of talks, and convened again in concessions with respect to the trade of trading partners on the ‘‘Priority Watch January 1999, in an attempt to conclude a Member that fails to implement WTO List’’ and 37 trading partners on the an agreement providing for liberalized recommendations. On April 19, the ‘‘Watch List’’, and announced the beef trade. In the absence of an United States suspended concessions in initiation of WTO dispute settlement agreement, the United States requested the amount of $191.4 million against the WTO dispute settlement consultations EU because of its failure to implement 1 These provisions can be found in: Sections 301– 310 of the Trade Act of 1974 (‘‘Section 301’’); on February 1, 1999. On April 28, the a WTO-consistent banana regime. USTR Section 182 of the Trade Act of 1974 (‘‘Special United States requested the is now preparing to take similar action 301’’); and Section 1377 of the Omnibus Trade and establishment of a WTO dispute against EU imports if the EU does not Competitiveness Act of 1988 (‘‘Section 1377’’). The settlement panel on Korea’s beef import implement WTO findings against its procedures set forth in Section 310 of the Trade Act of 1974 (‘‘Super 301’’) and Title VII of the Omnibus and distribution system after WTO meat import ban by May 13, 1999, Trade and Competitiveness Act of 1988 (‘‘Title VII’’) consultations held on March 11 and 12 which is the deadline for were re-instituted by Executive Order 13116 of failed to resolve the U.S. concerns. implementation in that dispute. March 31, 1999.
VerDate 26-APR-99 13:00 May 05, 1999 Jkt 183247 PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24442 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices proceedings involving Argentina, traded steel imports have on U.S. steel result must be enforceable commitments Canada and the European Union. See companies and U.S. jobs. In the report, to open markets in goods, services and USTR Announces Results of Special 301 the Administration stated its agricultural products; transparent, non- Review, released April 30, 1999, for willingness, if needed, to self-initiate discriminatory regulatory systems; and further information concerning the trade cases with respect to steel imports effective national treatment at the protection of U.S. intellectual property from Japan—the single largest source of border and in the domestic economy. rights. the import surge—if imports did not In the months to come, we will Section 1377: This year’s review, return to appropriate pre-crisis levels. negotiate intensely with all acceding which was completed on March 30, With respect to the antidumping cases economies, including China—the largest 1999, focused on compliance with the filed by U.S. industry and workers prospective WTO Member. We have WTO Basic Telecommunications concerning imports of carbon flat-rolled made important progress with China in Agreement by WTO Members, products, the Commerce Department the past two years, particularly during particularly the EU, Mexico, Japan and expedited these investigations and, with the visit of Premier Zhu Rongji in April Germany. The review indicated that the respect to imports from Japan and 1999, and intensive negotiations are WTO agreement has increased market Russia, invoked the critical continuing. access for U.S. telecommunications circumstances provision with a view to companies in foreign markets, but that retroactive application of the E. Bilateral/Regional Trade Expansion ongoing enforcement of the agreement is antidumping margins. Additionally, the Priorities and Trade Practices of needed to ensure continued growth in Administration invoked, for the first Concern world-wide competition for time, the market disruption article of the 1. Africa telecommunications services. See USTR 1992 U.S.-Russia Trade Agreement to Press Release 99–29, March 30, 1999 for negotiate a restraint agreement on President Clinton’s Partnership for further information on this year’s 1377 imports into the United States from Economic Growth and Opportunity in review. Russia of all steel products not already Africa, announced and adopted in 1997, Title VII: The Title VII report gives subject to restraints or dumping orders. established a vigorous U.S. trade policy USTR the means to identify foreign The Administration also expanded approach toward sub-Saharan Africa. countries that have failed to comply discussions on steel issues with Korea, The key objectives of the Partnership with their obligations under the WTO the third largest source of the 1998 steel Initiative include: Support for economic Agreement on Government Procurement import surge, with the objective of reforms underway in the region; (‘‘GPA’’), Chapter 10 of NAFTA, or other substantial progress toward eliminating enhanced U.S.-sub-Saharan African agreements relating to government Korean government involvement in the trade and investment ties; support for procurement; or otherwise steel sector. U.S. industry has long- Africa’s full integration into the discriminated against U.S. products and standing concerns with the Korean multilateral trading system; and support services when making government government’s support for Korean steel for sustainable economic development. purchases. In addition, USTR is directed producers, for example, through The Partnership Initiative also aims to to consider a number of other factors in directed lending, which has resulted in strengthen U.S. economic engagement making its determination of whether to uneconomic steel capacity expansions with countries of sub-Saharan Africa. identify a country in the Title VII report. in Korea. For example, the U.S. and The Title VII report, released Korean governments conducted an USTR is also committed to facilitating simultaneously with this report and the exchange of letters in August 1998 and greater African integration into the Special 301 report, builds upon the April 1999 regarding steel. global economy by helping African information found in the President’s These actions, grounded in U.S. trade nations and their regional organizations 1999 Trade Policy Agenda and the 1999 law and fully consistent with U.S. develop greater capacity to expand trade NTE Report on Foreign Trade Barriers international obligations, resulted in a and investment protection. At the so as to be more flexible and effective sharp reduction of unfairly traded steel recently concluded U.S.-Africa in achieving its goal of eliminating imports beginning in December 1998. Ministerial in Washington D.C., the unfair procurement practices. In the Active import monitoring is underway USTR underscored the resolve of the past, Title VII has been a useful and with a view to prompt application of United States and Africa to build effective tool in challenging foreign U.S. trade laws should injurious import capacity to promote broader governments’ procurement barriers. For growth resume. participation by African countries in the details on this year’s report, see Title VII multilateral trading system. Specifically, D. Integrating Other Economies Into the report, released on April 30, 1999. the United States agreed to continue Steel: It is critically important that we WTO System technical assistance workshops in promote free and fair trade abroad and The WTO is engaged in accession Africa on the WTO. The United States that we effectively enforce our trade negotiations with 30 separate and African participants also agreed on laws in order to give Americans the economies, including China, Chinese the need for multilateral institutions to confidence needed to keep our markets Taipei, Russia, Ukraine, and Vietnam. more effectively coordinate and open. In response to the substantial Their accession to the WTO will make cooperate with the WTO on trade and increase in U.S. steel imports beginning the trading system nearly universal. It investment issues affecting African in April 1998, the Administration will remove a source of distortion and countries and to support African responded with a comprehensive and frustration in trade for the United States Economic Community (AEC) permanent effective set of actions which were and will give the newly-acceding observer status in the WTO, pending the outlined in the President’s Steel Report members a greater stake in stability and decision of the WTO on modalities for to the Congress of January 7, 1999. prosperity beyond their borders—thus observership. African and U.S. Thanks to these measures, steel imports strengthening peace in the next century. representatives will establish a began to drop after November 1998. The To support both domestic reform and mechanism for regular consultations on Administration is committed to the rules of the trading system, these WTO and related matters, in Geneva aggressively enforcing U.S. trade law to countries must be brought into the WTO and Washington, as preparation for the address the adverse impact that unfairly on commercially meaningful terms. The WTO Ministerial advances.
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USTR recently hosted roundtables Priority issues for three of our largest this dispute and Bill C–55 is enacted, with African Trade Ministers on trading partners in the region—China, the United States will take action of an mechanisms to strengthen U.S.-Africa Japan, and Korea—are outlined in the equivalent commercial effect to protect cooperation in the WTO and in the GSP relevant sections below. its interests. Program and U.S. market access 3. Canada 4. China requirements. In 1997, USTR enhanced the Generalized System of Preferences Agriculture: Even though Canada is China remains a major focus of our Program (GSP) by adding over 1,700 our largest trading partner and our bilateral trade initiatives. We are new tariff lines for least developed second largest agricultural market, actively monitoring China’s countries, 29 of which are in Africa. Canada continues to have restrictive implementation of our trade agreements True to President Clinton’s vision, policies limiting market access to key on intellectual property rights, textiles, USTR’s unprecedented engagement U.S. agricultural products. In 1998, the and market access. Obtaining with African countries has resulted in United States exported over $7 billion strengthened protection and trade agreements, incentives for reform while importing $7.7 billion of enforcement of trademarks, copyrights and regional integration, and initiatives agricultural products. In December and other intellectual property rights to enhance Africa’s participation in the 1998, we took an important step toward (IPRs), enhanced market access and global trading system. reducing these restrictions by national treatment for products that concluding an initial bilateral market depend on intellectual property, such as 2. Asia—Pacific access package opening opportunities pharmaceuticals and motion pictures, The Clinton Administration has for American grain farmers, cattle are key objectives. In addition, we are developed a wide-ranging program of ranchers and other agricultural addressing issues relating to market bilateral, regional and multilateral producers. We are closely monitoring access and investment in the initiatives to reduce barriers to U.S. implementation of the December telecommunications and direct exports of goods, services, and agreement and have already witnessed marketing sectors. We will follow up on investment in the Asia-Pacific region. improved access for cattle and rail recent progress on resolving sanitary The major trade policy priorities for this shipments of wheat. For example, over and phytosanitary (SPS) issues with important economic region are: 51,000 head of cattle moved into Canada China to ensure that China’s • To harness the momentum for in the first three months of 1999, government fully implements our reform generated by the financial crisis compared to only 1,000 head of cattle in market opening agreements, which will to promote economic recovery and the all of 1998. In addition, over 225,000 allow U.S. exports of meat, citrus fruit, type of trade policy changes that the tons of wheat and barley were and Pacific Northwest wheat. United States has consistently transshipped through Canada on the rail While we are working bilaterally to advocated: Enhanced market access, system. Nevertheless, Canada still open up particular sectors of China’s transparency, economic deregulation maintains a number of policies that market, we are also working in the and investment decisions based upon restrict access of U.S. agricultural multilateral context to achieve broad- market disciplines. Such trade policies products, including grain. We pressed ranging reform of China’s trade regime complement firmly the goals of financial the government of Canada in March through negotiations on China’s market stabilization, as evidenced by 1999 concerning unequal access to accession to the WTO. Recently, we the strong emphasis on structural reform Canadian grain handling facilities and have made significant progress on the in the International Financial Institution the Canadian Wheat Board, excessive market access aspects of these (IFI)’s programs. The United States is monitoring by the Canadian Grains negotiations, including on agriculture, actively pursuing these objectives both Commission on wheat imports, and services, and industrial goods. Reaching through bilateral and multilateral unequal access to rail cars and rail rates. agreement on these issues as well as on channels, in particular, the Asia Pacific We are continuing frequent discussions application of WTO rules to China will Economic Cooperation (APEC) forum; with Canada on these and other related mark an important step forward in • To realize the commitment of APEC issues to provide U.S. producers China’s overall accession process. members to long-term trade and improved market access for agricultural 5. Europe investment liberalization through products. We hope these issues will be improved assessment and resolved in the near term. With the U.S.–EU trade and implementation of individual and Magazines: USTR continues to seek a investment relationship being the collective APEC action plans and negotiated settlement with Canada on largest and most complex in the world, special initiatives such as EVSL (Early its continued discriminatory practices the United States is very committed to Voluntary Sectoral Liberalization); and against U.S. magazines. In 1997, the strengthening trade relations with the • To secure full implementation of United States successfully challenged EU. USTR will address problems in our WTO obligations by APEC members. Canada’s protectionist magazine regime trade relations both bilaterally and This aspect of USTR’s work will assume in the World Trade Organization. By the through the new multilateral negotiating heightened importance over the coming WTO deadline, October 1998, Canada round President Clinton has proposed. year given the obligation of developing terminated its longstanding ban on split- The United States hopes to make countries to fully implement the WTO run imports, eliminated the 1995 special progress through the Transatlantic agreements on TRIPS, TRIMs, and excise tax on split-runs, and modified Economic Partnership (TEP) initiative Customs Valuation as of January 1, its discriminatory postal rates and begun last year. The TEP Action Plan 2000. This requirement should greatly postal subsidies for magazines. calls for bilateral U.S.–EU consultations strengthen our efforts to address However, Canada introduced Bill C–55, and/or negotiations in several specific inadequate protection of intellectual which simply accomplishes the same issue areas: technical trade barriers, property rights, trade-distorting result as the import ban and excise tax— agriculture (including biotechnology investment requirements, and keeping U.S. and other foreign- and food safety), intellectual property, inefficient and corrupt customs produced split run magazines from government procurement, services, practices which have been pervasive competing in the Canadian market. If electronic commerce, environment, problems throughout the region. negotiators are unsuccessful in resolving labor and advancing shared values such
VerDate 26-APR-99 19:21 May 05, 1999 Jkt 183247 PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm04 PsN: 06MYN1 24444 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices as transparency, environmental deregulation to open Japan’s economy to proposed that the next insurance talks protection, and participation for civil competition; monitoring and enforcing take place in Tokyo this summer. society. The initiative also encompasses existing trade agreements covering key Autos and Auto Parts: The United enhanced U.S.–EU cooperation on sectors; the negotiation of new trade States and Japan concluded an multilateral trade issues. USTR also is agreements; and addressing concerns agreement in 1995 to eliminate market working to ensure the protection of U.S. through regional and multilateral fora. access barriers and significantly expand interests as the EU expands to include The Administration remains determined sales opportunities in the automotive Central and Eastern European nations. to press Japan to take the necessary sector. Although initial results in many Nevertheless, the United States has a steps to dismantle the numerous trade areas were satisfactory, recent progress number of serious concerns regarding and regulatory barriers that have toward achieving the Agreement’s key certain EU activities related to trade. sheltered the Japanese economy from objectives has been disappointing. Sales Our decision to request WTO foreign competition for far too long. in Japan of autos produced by the Big consultations with the EU on its action Insurance: The United States and Three in North America declined 34.5 affecting U.S. flight management Japan concluded bilateral insurance percent in 1998, after declining 20 systems (the ‘‘avionics case’’) agreements in 1994 and 1996 designed percent in 1997. Exports of U.S.-made underscores U.S. determination to to open to competition the world’s auto parts to Japan fell 7.5 percent in challenge the EU’s use of those second largest insurance market, with 1998, the first drop since 1991, and the measures which advance, in a manner annual premium revenues of $329 continued fall off in new orders of U.S. inconsistent with trade rules, EU billion in JFY 1997. In December 1997, auto parts by Japanese manufacturers commercial interests at the expense of Japan agreed to bind certain key suggest that this decline is likely to those of its trading partners. The United commitments from these agreements continue. These trends are the result of States also has serious concern with the under the WTO Financial Services a variety of factors, including Japan’s continued lack of a transparent and Agreement. recession, which has inhibited timely EU approval process for The bilateral agreements have had consumer spending and business foodstuffs containing genetically some positive impact. For example, in investment and weakened the yen, and modified organisms (GMOs). The September 1997 the Ministry of Finance continuing market access and regulatory United States hopes to work in coming granted the first ever license for direct issues. weeks and months with the European marketing of risk-differentiated To address these concerns, the U.S. Commission and EU Member States to automobile insurance to a U.S. firm. Government presented Japan at the address this problem, but will take Nevertheless, the Administration is annual review of the Automotive action if the uncertainty and seriously concerned that Japan has not Agreement in October 1998 with 11 arbitrariness reflected in recent EU fully implemented all of the specific proposals, including measures to actions in this area continue to deregulation actions called for under strengthen and improve access to undermine U.S. exports. our bilateral insurance agreements, dealerships, the main distribution The United States also remains including reform of its rating channel to Japan’s automotive market. extremely concerned about the EU’s organizations and timely approval of The U.S. Government also urged Japan failure to implement WTO dispute product applications. In addition, the to eliminate unnecessary regulations in settlement rulings regarding its United States is extremely concerned the auto parts aftermarket that limit the discriminatory bananas and beef with the diminution of the ‘‘third ability of independent garages to hormones regimes. EU inaction sector’’ safeguards caused by increased compete for high-profit vehicle undermines the credibility of the WTO activity on the part of Japanese inspection and repair business. While dispute settlement mechanism and insurance firms and subsidiaries in this Japan has agreed to implement some of sends a disturbing message about the market segment critical to U.S. insurers. these proposals, the U.S. Government EU’s willingness to abide by the Since all of the primary sector will continue to urge Japan at all levels commitments it has undertaken. In light deregulation criteria had not yet been to take concrete steps to achieve of the five rulings in the past six years fulfilled, USTR announced on July 1, additional progress under the against the EU’s banana import policy, 1998, that the United States does not Agreement. In addition, the United most recently on April 6, the United support the initiation of the two-and- States will continue to monitor States expects the EU to implement a one-half year clock regarding developments regarding Japan’s new WTO-consistent banana program as termination of the third sector fuel economy regulations to ensure that soon as possible. The United States also safeguards. The Administration is this rulemaking process is fully expects the EU to lift its WTO- prepared to utilize all of the tools at our transparent and that foreign vehicle inconsistent ban on meat produced with disposal to ensure the full benefits to manufacturers receive treatment no less growth hormones by the May 13 U.S. industry from our bilateral favorable than that offered to domestic deadline granted to the EU to comply Insurance Agreement. manufacturers, recognizing the with the WTO panel findings against its The U.S. underscored its concerns important environmental concerns that hormones policy. The United States has regarding both primary and third sector underlie these regulations. engaged in discussions with the issues at consultations with Japan under Flat Glass: The 1995 U.S.-Japan Flat European Commission regarding the bilateral agreements held on April Glass Agreement has helped American implementation of the EU’s WTO 16 in Washington. These consultations firms to a limited extent, but the basic obligations in both instances. also included a constructive regulator- problem remains the same: U.S. glass to-regulator exchange between manufacturers still have a minuscule 6. Japan representatives of the National share of the Japanese flat glass market, The United States attaches utmost Association of Insurance Commissioners despite the fact that Japanese companies importance to opening Japan’s markets and select state insurance and distributors readily acknowledge to U.S. goods and services. To this end, commissioners, and Japan’s Financial the competitiveness of U.S. glass. While the Clinton Administration has Supervisory Agency. It is essential that Japan committed in the agreement to consistently emphasized the need for both governments expeditiously resolve take measures to facilitate access by major structural reform and outstanding issues. The U.S. has foreign companies to the Japanese glass
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Under this MOU, Korea agreed trade agenda is Korea’s treatment of ownership of glass distributors, equity to (1) bind in the WTO its 80 percent foreign, research-based pharmaceuticals. and financing ties, employee exchanges, applied tariff rate at 8 percent; (2) lower Korea does not now provide imported and purchasing quotas. Indeed, there is some of its motor-vehicle-related taxes drugs with national treatment with evidence that their control is increasing, and to eliminate others; (3) adopt a self- respect to listing and pricing on the as they use Japan’s tight credit market certification system by 2002; (4) Korean national health insurance to impose closer financial ties on the streamline its standards and reimbursement schedule, and the most important glass distributors. certification procedures; (5) establish a current reimbursement system Japan recently agreed with the United new financing mechanism to make it discourages hospitals and other large States to examine these issues in easier to purchase motor vehicles in end-users from buying imported drugs. surveys of the sector by the Japan Fair Korea; and (6) continue to actively and Dispensers of imported products also Trade Commission (JFTC) and the expeditiously address instances of anti- must comply with additional Ministry of International Trade and import activity and to promote actively administrative procedures for Industry. The former will be particularly a better understanding of free trade and reimbursement. U.S. pharmaceutical important in this regard, and it is open competition. This MOU was producers face other market access therefore imperative that the JFTC negotiated after Korea’s motor vehicle barriers in Korea including non-science- scrutinize the core problems in a trade barriers were named as a ‘‘priority based requirements for clinical testing. thorough and credible way. Japan has foreign country practice’’ in the 1997 In addition, the United States has raised also agreed to U.S. proposals to hold Super 301 report and USTR initiated a concerns about Korea’s regime for government-industry consultations on section 301 investigation of such protecting test data against unfair access to and the state of Japan’s flat barriers. On October 20, 1998, with the commercial use. Finally, lack of glass market this Spring and to allow conclusion of the MOU, the USTR coordination between Korean health U.S. Government representatives to decided to terminate this investigation authorities and Korean IPR authorities attend the Japanese Government’s and to monitor Korea’s implementation allows manufacturers of patent periodic meetings with flat glass of the measures in the MOU to eliminate infringing products to gain approval for distributors to remind them of the those barriers. The first formal review of the launch of their products into the objectives and provisions of the Korea’s implementation of the 1998 Korean market to the commercial agreement. This progress MOU was held on April 29 and 30, detriment of the holders of the patents. notwithstanding, the principal 1999. The Administration will continue In response to high-level bilateral impediments to genuine market access to work closely with the Korean consultations and a letter from the in the flat glass sector remain. The Government to ensure that the Deputy U.S. Trade Representative, the United States will continue to urge provisions in the 1998 MOU are fully Korean Government has indicated that it Japan to take actions to remove these and faithfully implemented in a manner is taking steps to address some of the barriers. that substantially increases market U.S. Government’s and industry’s concerns about treatment of foreign 7. Korea access for foreign motor vehicles in Korea and establishes conditions so that pharmaceuticals. The Administration Korea is one of the United States’ the Korean motor vehicle sector will continue its active efforts to further major trading partners but has been operates according to market principles. advance progress on our described as one of the toughest markets In addition, the Deputy U.S. Trade pharmaceuticals trade issues until U.S. in the world for doing business. In Representative concluded an exchange concerns are fully and satisfactorily response to its financial crisis, the Kim of letters in August 1998 on the addressed. Specifically, the U.S. Dae Jung administration has operation and sale of Hanbo Steel, and Government will engage the Korean implemented structural reforms aimed the U.S. Government initiated Government on U.S.-Korea at putting the Korean economy on a comprehensive discussions with Korea pharmaceuticals-related trade issues more open, market-oriented basis. on broader steel issues of concern to and a Bilateral Investment Treaty (BIT), Resistance to key trade reforms remains, U.S. industry. In April 1999, the Deputy in an out-of-cycle Special 301 review on however, and many issues have arisen U.S. Trade Representative concluded TRIPS consistency, and in other fora. on Korea’s compliance with its another letter exchange with the Korean 8. Mexico international obligations. Government to address issues of The Administration is focused on concern and interest to U.S. industry Since 1994, trade with Mexico has eliminating Korean barriers to entry and relating to POSCO, Hanbo, and largely been governed by the North distribution of U.S. products using U.S. competition in the Korean steel sector American Free Trade Agreement trade law, WTO dispute settlement generally. (NAFTA). Mexico is also a WTO procedures, negotiation and In July 1998, a WTO dispute Member. As a result, U.S. trade and enforcement of bilateral trade settlement panel ruled in favor of the investment relations with Mexico are agreements, and close coordination with United States and the European subject to a set of comprehensive other countries. In addition, the Communities (EC) by finding Korea’s disciplines setting high standards of Administration will, through an taxes on alcoholic beverages to be openness and providing for effective interagency process, closely monitor discriminatory. In January 1999, the resolution of disputes covered by these Korea’s implementation of its trade- WTO Appellate Body upheld this panel agreements. By any measure, NAFTA related stabilization commitments. decision, and the panel and Appellate has contributed to the increased trade Over the past year, the Administration Body reports were adopted on February between the United States and Mexico. has made solid progress toward opening 17, 1999. The United States and the EC During NAFTA’s first five years, U.S.
VerDate 26-APR-99 18:59 May 05, 1999 Jkt 183247 PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24446 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices merchandise exports to Mexico 9. Middle East DEPARTMENT OF TRANSPORTATION increased by 90 percent, with imports Building upon our Free Trade Amtrak Reform Council; Notice of from Mexico increasing by 137 percent. Agreement with Israel, the United States As is to be expected from such a large has inaugurated a program that aims to Seminar trading relationship, the United States bolster the peace process, while AGENCY: Amtrak Reform Council. does continue to have concerns about advancing American interests. Starting ACTION: Notice seminar. Mexico’s trade practices in some areas. with a framework of bilateral trade and The most important of these concern investment consultations in the region SUMMARY: As provided in Section 203 of Mexico’s enforcement of its intellectual and a newly inaugurated industrial the Amtrak Reform and Accountability property laws, telecommunications zones program, the United Sates will Act of 1997, the Amtrak Reform Council policy, and market access for high help the Middle Eastern countries work (ARC) gives notice of a seminar on fructose corn syrup. toward a shared goal of increased intra- Amtrak. The seminar will deal with Mexico has committed to implement regional trade. Most recently, the USTR and enforce advanced levels of how and why Amtrak was established, expanded the first Jordan-Israel Amtrak’s current status and future intellectual property protection and has Qualifying Industrial Zone, designated just enacted new legislation to this plans. For comparative purposes, the another, and completed a Trade and effect. However, as noted in USTR’s program will also include international Investment Framework Agreement with Special 301 Report issued today, piracy performance statistics and examples of Jordan. and counterfeiting remain major how other countries operate and finance problems, with current enforcement 10. Western Hemisphere their intercity passenger trains. Amtrak action inadequate to deter piracy. and the U.S. Department of The Miami and Santiago Summits of Transportation’s Bureau of Mexico has been added to the Special the Americas called on us to complete 301 Watch List. Transportation Statistics will open the work on a Free Trade Area of the seminar with a statistical profile of Regarding telecommunications, the Americas no later than the year 2005. United States is concerned that ongoing passenger travel in the U.S. In addition, This year, also in accordance with the Council has invited speakers from regulatory processes are non-transparent Summit directions, the United States and potentially ineffective. USTR’s the U.S. railroad industry, rail labor intends to achieve concrete progress organizations, the World Bank, the Section 1377 Report, released on March toward the FTAA in the work of our 30, expressed doubts about Mexico’s consulting industry, and the European nine Negotiating Groups (market access, implementation of its commitments Bank for Reconstruction and agriculture, services, investment, under the WTO agreement with respect Development. government procurement, intellectual to international services and DATES: property, anti-dumping and The seminar is scheduled from interconnection rates. The Mexican countervailing duties, competition 8:30 a.m. to 5:30 p.m. on Tuesday, May government has said it will review its policy, and dispute settlement) and 18, 1999. international service and through business facilitation measures. ADDRESSES: The seminar will be held at interconnection/universal service In addition, the FTAA has initiated a the Crystal Gateway Marriott in Crystal regulations in 1999. USTR will conduct private sector-public sector experts City, 1999 Jefferson Davis Highway, an out-of-cycle examination by July 30 Alexandria, VA (703–413–5500). The regarding the progress of Mexico’s group on electronic commerce to advise the ministers on how electronic seminar is open to the public on a first- ongoing regulatory process, and expects come, first-serve basis. Persons in need that Mexico will respond favorably to commerce can benefit the countries of this hemisphere, especially in the of special arrangements should contact the requests from all the new entrants to the person listed below. permit International Simple Resale (ISR) context of the FTAA negotiations. The FOR FURTHER INFORMATION CONTACT: immediately. At that time USTR will ministers also have established a take appropriate action including, if government committee on the Deirdre O’Sullivan, Amtrak Reform warranted, the initiation of WTO participation of civil society, which has Council, Room 7105, JM–ARC, 400 dispute settlement proceedings, to solicited the views of the different Seventh Street, S.W., Washington, D.C. assure that new competitors in the sectors of society concerning the FTAA 20590, or by telephone at (202) 366– market are treated fairly. and will analyze them for the 0591; FAX: 202–493–2061. The United States continues to raise consideration by the ministers at the SUPPLEMENTARY INFORMATION: The ARC its concerns regarding the Mexican next FTAA ministerial in Toronto in was created by the Amtrak Reform and Government’s application of November 1999. Accountability Act of 1997 (ARAA), as antidumping measures on U.S. exports At the same time, the Clinton an independent commission, to evaluate of high fructose corn syrup (HFCS). A Administration will seek approval from Amtrak’s performance and to make dispute settlement panel was Congress for an expanded and improved recommendations to Amtrak for established by the World Trade Caribbean Basin Initiative with duty- achieving further cost containment, Organization in November 1998 and free treatment for products currently productivity improvements, and hearings were held in April 1999. A excluded from the program. The financial reforms. In addition, the decision is expected late this year. U.S. Administration seeks to use the program ARAA requires: that the ARC monitor exporters are also challenging Mexico’s to promote the adoption by beneficiary cost savings resulting from work rules measure under the Chapter 19 countries of sound trade and investment established under new agreements provisions of the NAFTA and last year policy reforms that will prepare them between Amtrak and its labor unions; filed a Section 301 petition with USTR, for the obligations and responsibilities that the ARC provide an annual report alleging that the policies and practices of the FTAA. to Congress that includes an assessment of the Government of Mexico are Demetrios J. Marantis, of Amtrak’s progress on the resolution unreasonable and deny fair and Assistant General Counsel, Section 301 of productivity issues; and that after two equitable market opportunities for U.S. Committee. years the ARC has the authority to exporters. USTR accepted the petition [FR Doc. 99–11413 Filed 5–5–99; 8:45 am] determine whether Amtrak can meet for review on May 15, 1998. BILLING CODE 3190±01±P certain financial goals specified under
VerDate 26-APR-99 18:59 May 05, 1999 Jkt 183247 PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices 24447 the ARAA and, if not, to notify the 850,000 hours annually. Abstract: Each burden is 15 hours. Abstract: This rule President and the Congress. operation which seeks to obtain, or is in established separate requirements for The ARAA provides that the ARC possession of an air carrier operating check airmen who check only in flight consist of eleven members, including certificate must comply with the simulators and flight instructors who the Secretary of Transportation and ten requirements of FAR Part 121 in order instruct only in flight simulators. This others nominated by the President or to maintain data which is used to information will be used by the FAA to Congressional leaders. Each member is determine if the air carrier is operating determine and assure check airmen and to serve a five year term. in accordance with minimum safety instructors maintain the high Issued in Washington, D.C. April 29, 1999. standards. qualification standards required to 2. 2120–505, Indirect Air Carrier Thomas A. Till, perform their safety functions. Security, 14 CFR Part 109. The 7. 2120–0601, Financial Executive Director. respondents are an estimated 2500 Responsibility for Licensed Launch [FR Doc. 99–11331 Filed 5–5–99; 8:45 am] indirect air carriers with security Activities. Respondents are an estimated BILLING CODE 4910±06±P programs. The estimated total annual 7 licensees authorized to conduct burden is 650 hours. Abstract: part 109 licensed launch activities. The sets forth procedures to be used by DEPARTMENT OF TRANSPORTATION estimated annual burden is 1800 hours. indirect air carriers in carrying out their Abstract: The required information will responsibilities involving the protection Federal Aviation Administration be used to determine if licensees have of persons and property against acts of complied with financial responsibility Notice of Intent To Request Renewal criminal violence, aircraft piracy, and requirements, including maximum From the Office of Management and terrorist activities in the forwarding of probable loss determination, as set forth Budget (OMB) of Current Public package cargo by passenger aircraft. in regulations and in license orders Collections of Information 3. 2120–0536, Security Programs for issued by the Office of the Associate Foreign Air Carriers. The respondents Administrator for Commercial Space AGENCY: Federal Aviation are an estimated 170 foreign air carriers/ Transportation. Administration (FAA) DOT. governments. The estimated total Issued in Washington, DC, on May 3, 1999. ACTION: Notice. annual burden is 28,000 hours. Abstract: Each foreign air carrier landing or taking Steve Hopkins, SUMMARY: In compliance with the off in the United States is to submit a Manager, Standards and Information Paperwork Reduction Act (44 U.S.C. security program for the Administrator’s Division, APF–100. 3501 et seq.), the FAA invites public acceptance to ensure adequate security [FR Doc. 99–11395 Filed 5–5–99; 8:45 am] comment on 7 currently approved measures are being implemented by BILLING CODE 4910±13±M public information collections which those foreign air carriers. will be submitted to OMB for renewal. 4. 2120–0587, Aviator Safety Studies. DATES: Comments must be received on The respondents are an estimated 4000 DEPARTMENT OF TRANSPORTATION or before July 6, 1999. certified pilots. The burden is an estimated total of 8000 hours. Abstract: Federal Aviation Administration ADDRESSES: Comments on any of these In order to conduct effective research on collections may be mailed or delivered the contribution of pilots to aircraft Notice of Intent To Rule on Application to the FAA at the following address: Ms. accidents, data are required on the (99±01±C±00±ACY) To Impose Only Judith Street, Room 612, Federal normative distribution of various pilot and Impose and Use a Passenger Aviation Administration, Standards and attributes and their association with Facility Charge (PFC) at Atlantic City Information Division, APF–100, 800 accident involvement. International Airport, Atlantic City, NJ Independence Ave., SW., Washington, 5. 2120–0597, Application for DC 20591. AGENCY: Federal Aviation Employment with the Federal Aviation Administration (FAA), DOT. FOR FURTHER INFORMATION CONTACT: Ms. Administration. The respondents are an Judith Street at the above address or on estimated 75,000 people who may apply ACTION: Notice of intent to rule on (202) 267–9895. for employment with the Federal application. SUPPLEMENTARY INFORMATION: The FAA Aviation Administration. The estimated SUMMARY: The FAA proposes to rule and solicits comments on any of the current burden hours is 75,000 hours annually. invites public comment on the collections of information in order to Abstract: Under the provisions of Pub. application to impose only and impose evaluate the necessity of the collection, L. 104–50, the FAA has been given the and use a PFC at Atlantic City the accuracy of the agency’s estimate of authority to develop and implement its International Airport under the the burden, the quality, utility, and own personnel system. This application provisions of the Aviation Safety and clarity of the information to be will be used in our efforts to automate Capacity Expansion Act of 1990 (Title collected, and possible ways to and centralize the application, IX of the Omnibus Budget minimize the burden of the collection. evaluation and referral of applicants for Reconciliation Act of 1990) (Pub. L. Following are short synopses of the 7 employment. 101–508) and part 158 of the Federal currently approved public information 6. 2120–0600, Training and Aviation Regulations (14 CFR part 158). collection activities, which will be Qualification Requirements for Check submitted to OMB for review and Airmen and Flight Instructors. The DATES: Comments must be received on renewal: respondents are an estimated 3000 or before June 7, 1999. 1. 2120–0008, Certification and experienced pilots who would ADDRESSES: Comments on this Operations: Air Carriers and Operations otherwise qualify as flight instructors or application may be mailed or delivered of Large Aircraft—FAR 121. The check airmen, but who are not in triplicate to the FAA at the following respondents are an estimated 140 air medically eligible to hold the requisite address: Mr. Dan Vornea, Project carriers and commercial operators medical certificate to perform flight Manager, New York Airports District certificated under FAR 121. The instructor or check airmen functions in Office, 600 Old Country Road, Suite estimated total annual burden is a simulator. The estimated annual 446, Garden City, N.Y. 11530.
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In addition, one copy of any —Terminal Exit Road ADO; Federal Aviation Administration; comments submitted to the FAA must —Baggage Conveyor 1601 Lind Avenue SW Suite 250; be mailed or delivered to Mr. Thomas —ASR–9 Relocation Renton, WA 98055–4056. Rafter, Airport Director, Atlantic City —Terminal Apron Expansion In addition, one copy of any International Airport at the following —Taxiway H Relocation —Snow Removal Equipment Building comments submitted to the FAA must address: South Jersey Transportation be mailed or delivered to John Class or classes of air carriers which Authority, Civil Terminal, #106, Anderson, A.A.E., Director, at the the public agency has requested not be Atlantic City International Airport, following address: 3201 Airport Way, required to collect PFCs: American Air Pleasantville, N.J. 08232. Boise, Idaho, 83705. Services, Inc., Buxmont Aviation Air carriers and may submit copies of Air Carriers and foreign air carriers Service, Inc., Corporate Jets, Inc., written comments previously provided may submit copies of written comments Extraordinaire, Inc., Gibson Aviation to Atlantic City International Airport previously provided to Boise Air Inc. (Maryland), Miller Aviation, Inc. under section 158.23 of Part 158. Terminal Airport, under § 158.23 of part (New York), PHH Corporation, FOR FURTHER INFORMATION CONTACT: Dan 158. Paughannock Aviation Corporation, Sun Vornea, Project Manager, New York FOR FURTHER INFORMATION CONTACT: Ms. Airports District Office, 600 Old Air Corporation, Marc Fruchter Aviation Inc. and Modesto Executive Air Charter, Mary Vargas, (425) 227–2660; Seattle Country Road, Suite 446, Garden City, Airports District Office, SEA–ADO; N.Y. 11530, (516) 227–3812. The Inc., filing FAA Form 1800–31. Any person may inspect the Federal Aviation Administration; 1601 application may be reviewed in person application in person at the FAA office Lind Avenue SW, suite 250; Renton, at this same location listed above under FOR FURTHER WA 98055–4056. The application SUPPLEMENTARY INFORMATION: The FAA INFORMATION CONTACT and at the New maybe reviewed in person at this same proposes to rule and invites public York Airports District Office located at: location. comment on the application to impose 600 Old Country Road, Suite 446, SUPPLEMENTARY INFORMATION: The FAA only and to impose and use a PFC at Garden City, N.Y. 11530. proposes to rule and invites public Atlantic City International Airport In addition, any person may, upon comments on the applicable 99–03–C– under the provisions of the Aviation request, inspect the application, notice 00–BOI to impose and use PFC revenue Safety and Capacity Expansion Act of and other documents germane to the at Boise Air Terminal Airport, under the 1990 (Title IX of the Omnibus Budget application in person at the South New provisions of 49 U.S.C. 40117 and part Reconciliation Act of 1990) (Pub. L. Jersey Transportation Authority, 158 of the Federal Aviation Regulations 101–508) and Parts 158 of the Federal Atlantic City International Airport. (14 CFR part 158). Aviation Regulations (14 CFR part 158). On April 22, 1999, the FAA Issued in Garden City, New York on April On April 29, 1999, the FAA determined that the application to 22, 1999. determined that the application to impose only and to impose and use a Dan Vornea, impose and use the revenue from a PFC PFC submitted by the South New Jersey Project Manager, NYADO, Eastern Region. submitted by the City of Boise, Boise Air Transportation Authority was [FR Doc. 99–11392 Filed 5–5–99; 8:45 am] Terminal Airport, Boise, Idaho, was substantially complete within the substantially complete within the BILLING CODE 4910±13±M requirements of § 158.25 of part 158. requirement of § 158.25 of part 158. The The FAA will approve or disapprove the FAA will approve or disapprove the application, in whole or in part, no later DEPARTMENT OF TRANSPORTATION application, in whole or in part, no later than July 28, 1999. than August 5, 1999. The following is a brief overview of Federal Aviation Administration The following is a brief overview of the application. the application. Notice of Intent To Rule on Application Level of the proposed PFC: $3.00 Application number: 99–01–C–00–ACY 99±03±C±00±BOI To Impose and Use Level of the proposed PFC: $3.00 Proposed charge effective date: October the Revenue from a Passenger Facility 1, 2000 Proposed charge effective date: October Charge (PFC) at Boise Air Terminal 1, 1999 Proposed charge expiration date: August Airport, Submitted by the City of Boise, 1, 2016 Proposed charge expiration date: March Idaho 18, 2004 Total requested for use approval: Total estimated PFC revenue: AGENCY: Federal Aviation $77,135,059 $7,224,348 Administration (FAA), DOT. Brief description of proposed project: Brief description of proposed projects: ACTION: Notice of Intent to Rule on Terminal Area Renovation and Expansion. —Master Plan Update/EA/Part 150 Application. Noise Study Class or classes of air carriers which SUMMARY: The FAA proposes to rule and —Secure Area Systems the public agency has requested not be invites public comment on the —Terminal Expansion—Phases I–VI required to collect PFC’s: ‘‘Part 135 Air application to impose and use PFC —Improvements Airport Access Road Taxi/Commercial operators who revenue at Boise Air Terminal Airport Phases I&II conduct operations in air commerce —ARFF Vehicle under the provisions of 49 U.S.C. 40117 carrying persons for compensation or —Aircraft Fueling Access Road and part 158 of the Federal Aviation hire, except Air Taxi/Commercial —Master Plan—Environmental Impact Regulations (14 CFR part 158). operators public or private charters with Statement DATES: Comments must be received on a seating of 10 or more.’’ —Purchase Snow Removal Equipment or before June 7, 1999. Any person may inspect the —Aircraft De-Icing Facilities-Design ADDRESSES: Comments on this application in person at the FAA office —Improvements to Airport Security application may be mailed or delivered listed above under FOR FURTHER Systems in triplicate to the FAA at the following INFORMATION CONTACT and at the FAA —Rehabilitate Runway 13–31—Phases address: J. Wade Bryant, Manager; Regional Airports Office located at: I&II Seattle Airports District Office, SEA– Federal Aviation Administration,
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Northwest Mountain Region, Airports to the FAA, dated April 15, 1999, Authority of New York and New Division, ANM–600, 1601 Lind Avenue requesting additional time to provide Jersey, One World Trade Center, 63 SW, Suite 540, Renton, WA 98055– comments on the FAA’s notice of intent South, New York, NY 10048. 4056. to rule on a PFC application requesting FOR FURTHER INFORMATION CONTACT: Mr. In addition, any person may, upon authority to impose a PFC at JFK, LGA, Thomas Felix, Planning and request, inspect the application, notice and EWR and use that PFC revenue at Development Branch (AEA–610), and other documents germane to the JFK for a light rail system. Fitzgerald Federal Building, JFK application in person at the Boise Air Specifically, this amendment revises International Airport, Jamaica, NY Terminal Airport. the date that comments must be 11430, (718) 553–3335. In addition to received by the FAA regarding the Issued in Renton, Washington on April 29, the above locations, the supplemental 1999. FAA’s intent to rule on a PFC information may be reviewed in person application. In addition, this David A. Field, at this same location. amendment announces that meeting Manager, Planning, Programming and notes listed in the Certified Index to Issued in Washington, DC, on May 3, 1999. Capacity Branch, Northwest Mountain Catherine M. Lang, Region. Record and requested in the ATA’s April 15 letter to the FAA will be made Deputy Director, Office of Airport Planning [FR Doc. 99–11394 Filed 5–5–99; 8:45 am] a part of the SUPLEMENTARY INFORMATION and Programming. BILLING CODE 4910±13±M available for public review in addition [FR Doc. 99–11393 Filed 5–5–99; 8:45 am] to the material previously made BILLING CODE 4910±13±M DEPARTMENT OF TRANSPORTATION available. In 64 FR 18065 (Tuesday, April 13, Federal Aviation Administration 1999), FR Doc. 99–9133, page 18065, on the third column under DATES, replace DEPARTMENT OF THE TREASURY Notice of Intent To Rule on an sentence ‘‘Comments must be received Application to Impose a Passenger on or before May 13, 1999’’ with Customs Service Facility Charge (PFC) at John F. ‘‘Comments must be received on or Kennedy International Airport (JFK), before June 14, 1999’’. [T.D. 99±43] LaGuardia Airport (LGA), and Newark All supplementary information is International Airport (EWR), and To available for review at the following Cancellations of Customs Brokers' Use the Revenue From the PFC at JFK locations: Licenses New York Airports District Office, 600 AGENCY: Federal Aviation Old Country Road, Suite 446, Garden AGENCY: Customs Service, Department Administration (FAA), DOT. City, NY 11530. of the Treasury. ACTION: Amendment to the notice or ACTION: Brokers’ licenses cancellations. requesting comments and announcing FAA Headquarters, Passenger Facility the FAA’s intent to rule on a PFC Charge Branch Office, 800 I, the Commissioner of Customs, application. Independence Avenue, SW, Room pursuant to section 641(f), Tariff Act of 619, Washington, DC 20591, (call 1930, as amended (19 U.S.C. 1641(f)) SUMMARY: This amendment is in (202) 267–3845 to arrange for access). and § 111.51(a) of the Customs response to a written request from Mr. or Regulations (19 CFR 111.51(a)), hereby Robert E. Cohn, Counsel for the Air Mr. Anthony G. Cracchiolo, Director, cancel the following Customs brokers’ Transport Association of America (ATA) Priority Capital Projects, Port licenses without prejudice.
Individual License No.
San Francisco ...... C.G. Staff Companies ...... 12817 San Francisco ...... Armen Cargo Services Inc ...... 10909 New York ...... Mitrans Corporation ...... 12707 Philadelphia ...... Sterling International Inc ...... 12814
Dated: April 28, 1999. will hold a meeting of current and 22–23, 1999, we announced there would Raymond W. Kelly, prospective tax software developers to be a Business Software Developers Commissioner. share ideas and to hold dialogue on conference in June 1999. Due to space [FR Doc. 99–11415 Filed 5–5–99; 8:45 am] business electronic filing issues. limitations, we have rescheduled the BILLING CODE 4820±02±P Updates on the IRS initiatives, conference to July 7–8, 1999. To Electronic Payment Options and accommodate the projected Business Electronic Filing Services participation, we are requesting that DEPARTMENT OF THE TREASURY (Forms 1065, Forms 1041, Forms 1099, participation be limited to one Excise Financial Information Retrieval representative. Internal Revenue Service System (ExFIRS), Forms 941 Family, SUPPLEMENTARY INFORMATION: To register AGENCY: Internal Revenue Service (IRS), Electronic Federal Tax Payment System for this meeting, please call Venus Treasury. (EFTPS) and IRP) will be addressed at Burton at 202–283–0867 (not a toll-free the conference. The meeting will be ACTION: Notice of meeting with current number). A registration packet will be and prospective tax software held at the New Carrollton Federal mailed or emailed which must be developers. Building, 5000 Ellin Road, Lanham, MD returned by June 14, 1999. You may also 20706, Room B1–303 (Training Center). access The Digital Daily (IRS website) at SUMMARY: This announcement serves as NOTE: During the IRS E–File Software http://www.irs.ustreas.gov, under notice that the Internal Revenue Service Developers conference held on March ‘‘What’s Hot’’, to obtain registration
VerDate 26-APR-99 18:37 May 05, 1999 Jkt 183247 PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 E:\FR\FM\06MYN1.XXX pfrm01 PsN: 06MYN1 24450 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Notices information. If you have any questions most convenient to the NCFB. It is between Baltimore and Washington. Call 1– or issues which you would like to have approximately a 20–25 minute car/taxi ride 800–325–RAIL for schedules and additional addressed during the meeting, you may with limited traffic. Rental cars are available information. submit them beforehand by e-mailing to at the airport. Also, a Super Shuttle service Hotel Accommodations in New Carrollton is available from BWI to local hotels. The fare [email protected] or area: is $19 for the first person and $5 for each The following is a list of local hotels in [email protected]. additional person with the same destination. close proximity to the New Carrollton DATES: The conference will be held on If you want to take the Super Shuttle, go to Federal Building. For Federal employees, the Wednesday, July 7, 1999 from 8:30a.m.– the service desk located between baggage per diem rate for New Carrollton is the same 4:30p.m. and Thursday, July 8, 1999 claim areas 3 and 4 and let the representative as the District of Columbia—$124 for lodging from 8:30a.m.–1p.m. know your destination. Super Shuttle service and $46 for M & IE. is available 24 hours a day. The service is ADDRESSES: Questions or concerns provided on a demand basis which may Courtyard by Marriott New Carrollton, 8330 should be directed to Wanda Wallace or involve a wait of up to 30 minutes. The Corporate Drive, Landover, MD 20785, Beatrice Howell at IRS, Electronic Tax Super Shuttle will also pick you up from 800–321–2211 or 301–577–3373, Administration, OP:ETA:O:P, Room your hotel or the New Carrollton Federal Complimentary shuttle service is provided C4261/C4263, 5000 Ellin Road, Lanham, Building and take you to BWI. Reservations to Internal Revenue Service, New MD 20706. are needed for this service and may be Carrollton Federal Building obtained by calling 800–258–3826. Ramada Conference and Exhibition Center, FOR FURTHER INFORMATION CONTACT: Ronald Reagan National Airport is 8500 Annapolis Road, New Carrollton, MD Questions or concerns will also be taken approximately a 30–40 minute car/taxi ride 20784, (800)–436–0614 or 301–459–6700, over the telephone. Call Wanda Wallace to NCFB during non-peak hours of traffic. Complimentary shuttle service is provided at 202–283–0264 or Beatrice Howell at Morning and afternoon arrivals and to Internal Revenue Service, New 202–283–0551. departures take approximately one hour. Carrollton Federal Building Club Hotel, Doubletree, Largo, 301–773–0700 Dated: April 21, 1999. Rental cars are available at the airport. Additionally, the Metro (subway) System Best Western Hotel, Capital Beltway, 301– Approved: may be used from the airport to the New 459–1000 Carol J. Stender-Larkin, Carrollton location. This process would Days Inn, Lanham, 301–459–6600 Acting National Director, Electronic Program require the changing of trains during the ride Annapolis Residence Inn by Marriott, Operations Office, Electronic Tax and would take approximately 45 minutes. Annapolis, 410–573–0300 Administration. AMTRAK: The train stops at the New Travel from: Anyone who chooses to stay Carrollton station. Taxi’s are available at the Registration Form in hotels in the downtown Hotels; D.C. area train station to take you to your hotel. should allow approximately 30–40 minutes IRS Business Software Developers Directions via: The NCFB is easily to travel via Metro to the New Carrollton Conference, July, 7 & 8, 1999 accessible by major highways and Highways station each day. Name/Title lllllllllllllll mass transit. Restaurant Availability: The New lllllllllllllllllllll From Capital Beltway (I–495): Take Exit Carrollton area does not offer many choices 19B (Rt. 50 West—Washington). Take Exit 5 lllllllllllll in eating establishments. However, within a Company Name (after the Metro Station Exit). Turn right onto 5–20 mile radius there are many very good lllllllllllllllllllll Route 410. Turn right at the first light (Ellin restaurants. Annapolis, MD is only a 25 Address llllllllllllllll Road). Turn left at the first traffic light onto minute drive. Additionally, the METRO is lllllllllllllllllllll Harkins Road. available to Washington, DC or Virginia. A lllllllllllllllllllll or list of local eateries in the New Carrollton lllllllllllll Take Exit 20B onto Route 450 West. Get in area is available at the receptionist’s desk in Phone Number the NCFB Training Center. lllllllllllllll left lane. Turn left at 85th Avenue (it will Fax Number become Ellin Road). Turn right into Harkins NCFB TRAINING CENTER INFO: The E-mail Address lllllllllllll Road. conference will be held in room B1–303. If driving the following information is From DC: Follow New York Avenue to Messages may be taken for you during needed to authorize parking: Route 50 East, Exit 5. At Exit 5, move left conference hours. The message center Vehicle Identification Information: once the ramp splits and turn left onto Route telephone number is 202–283–6380. You can Type of Vehicle: lllllllllllll 410. Go to the second traffic light and turn retrieve your messages from the message Color: lllllllllllllllll right onto Ellin Road. Follow Ellin Road and board in the telephone center (Room B1– 105). Emergency messages will be delivered Tags: llllllllllllllllll turn left at the first traffic light onto Harkins directly to the classroom. Calls should be l l Road. Rental Car: Yes No Parking is available in the NCFB tiered limited to five minutes. There are also pay ‘‘Do you have any questions/topics which parking garage if information is provided in telephones available for your use at the you would like to have addressed at the advance. Visitors should enter at Gate C. cafeteria entrance. conference?’’ Security Instructions: Visitors must show lllllllllllllllllllll Mass Transit proper identification and be processed lllllllllllllllllllll METRO: The NCFB is adjacent to the New through the x-ray machine and metal detector Please return your completed registration Carrollton Metro (Orange Line) stop. After before access will be allowed. Visitors should form(s) no later than June 14, 1999 to: exiting at the turnstile, bear right and then identify themselves to the guard as being on Internal Revenue Service, 5000 Ellin Road, turn left (the entrance to the AMTRAK an access list for the IRS Business Software Lanham, MD 20706, ATTN: Venus Burton station is just in front of you and a sign Developers Conference. Visitors will receive C4–240, Phone Number: 202–283–0867, e- points left to the New Carrollton, Route 450, a temporary visitors pass which must be mail: [email protected] side of the station). At street level, bear left worn at all times when the building. A new Travel Information: The New Carrollton and take the pedestrian walkway leading badge will be issued each day of the Federal Building (NCFB) is located midway directly from the Metro Station to the front conference. between the Ronald Reagan National Airport door of NCFB. Call (202) 637–7000 for Attire: Casual business attire. (located in Alexandria, VA) and the schedules and additional information. Baltimore-Washington International (BWI) MARC: The NCFB is adjacent to the New [FR Doc. 99–10933 Filed 5–05–99; 8:45 am] Airport. The BWI Airport is the closest and Carrollton MARC Train Station. Service is BILLING CODE 4830±01±U
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Corrections Federal Register Vol. 64, No. 87
Thursday, May 6, 1999
This section of the FEDERAL REGISTER On page 23284, in the second column, section, in the first paragraph, in the contains editorial corrections of previously in the AGENCY: section, in the second 11th line, ‘‘part’’ should read ‘‘port’’. published Presidential, Rule, Proposed Rule, line, ‘‘Material’’ should read ‘‘Materiel’’. [FR Doc. C9–10859 Filed 5–5–99; 8:45 am] and Notice documents. These corrections are prepared by the Office of the Federal [FR Doc. C9–10858 Filed 5–5–99; 8:45 am] BILLING CODE 1505±01±D Register. Agency prepared corrections are BILLING CODE 1505±01±D issued as signed documents and appear in the appropriate document categories DEPARTMENT OF EDUCATION elsewhere in the issue. DEPARTMENT OF DEFENSE [DFCA Nos.: 84.133A and 84.133B] Department of the Army Corps of DEPARTMENT OF DEFENSE Engineers National Institute on Disability and Rehabilitation Research; Notice Department of the Army Draft Environmental Impact Statement Inviting Applications for New Awards for Proposed Open-Water Placement of Under the Disability and Rehabilitation Availability for Non-Exclusive, Dredged Material at Site 104 Queen Research Project and Centers Program Exclusive, or Partially Exclusive Anne's County, Maryland for Fiscal Year (FY) 1999 Licensing of U.S. Patent Application Concerning Vaccine Against Gram Correction Correction Negative Bacteria In notice document 99–10859, In notice document 99–9618, Correction appearing on page 23285, in the issue of beginning on page 18995, in the issue of In notice document 99–10858, Friday, April 30, 1999, make the Friday, April 16, 1999, make the appearing on page 23284, in the issue of following correction: following correction: Friday, April 30, 1999, make the On page 23285, in the second column, On page 18997, the table is corrected following correction: in the SUPPLEMENTARY INFORMATION: to read as set forth below: APPLICATION NOTICE FOR FISCAL YEAR 1999 REHABILITATION RESEARCH AND TRAINING CENTER, CFDA NO. 84.133B±9
Maximum Estimated award Project pe- Funding priority Deadline for transmittal of applications number of amount riod awards (per year) * (months)
84.133B±9ÐHealth and Wellness for Persons with Long-term Disabilities ...... June 3, 1999 ...... 1 $700,000 60 * Note: The Secretary will reject without consideration or evaluation any application that proposes a project funding level that exceeds the stated maximum award amount per year (See 34 CFR 75.104(b)).
[FR Doc. C9–9618 Filed 5–5–99; 8:45 am] DEPARTMENT OF TRANSPORTATION column, in the ADDRESSES: section, in BILLING CODE 1505±01±D the 11th line‘‘[20547]’’ should read Federal Aviation Administration ‘‘[29547]’’. [Docket No. 29547] [FR Doc. C9–10556 Filed 5–5–99; 8:45 am] BILLING CODE 1505±01±D 207-Minute Extended Range Operations With Two±Engine Aircraft (ETOPS) Operation Approval Criteria Correction In notice document 99–10556, beginning on page 22667, in the issue of Tuesday, April 27, 1999, in the first
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DEPARTMENT OF THE TREASURY The Paperwork Reduction Act does Department or its officials, employees, not apply because the rule does not or records shall be deemed to refer also 31 CFR Part 1 impose information collection to the bureaus or their officials, requirements that require the approval employees, or records. Persons Departmental Offices; Disclosure of of the Office of Management and Budget interested in the records of a particular Records: Freedom of Information Act under 44 U.S.C. 3501, et seq. bureau should also consult the AGENCY: Department of the Treasury. Dated April 27, 1999. appendix to this subpart that pertains to that bureau. The head of each bureau is ACTION: Proposed rule. Nancy Killefer, hereby authorized to substitute the Assistant Secretary of the Treasury SUMMARY: The Department of the (Management) and Chief Financial Officer. officials designated and change the Treasury is revising and updating its addresses specified in the appendix to regulations on the disclosure of records List of Subjects in 31 CFR Part 1 this subpart applicable to the bureau. under the Freedom of Information Act Freedom of information. The bureaus of the Department of the (FOIA). These regulations incorporate For the reasons set forth above, Part Treasury for the purposes of this subpart requirements of the Electronic Freedom 1 of Title 31 of the Code of Federal are: of Information Act Amendments of 1996 Regulations is amended as follows: (1) The Departmental Offices, which (Pub. L. 104–231) with respect to include the offices of: records maintained in electronic PART 1ÐDISCLOSURE OF RECORDS (i) The Secretary of the Treasury, formats, the timing of agency responses including immediate staff; 1. The authority citation for Part 1 to FOIA requests, and other procedural (ii) The Deputy Secretary of the continues to read as follows: matters. Treasury, including immediate staff; DATES: Comments must be received no Authority: 5 U.S.C. 301 and 31 U.S.C. 321. (iii) The Chief of Staff, including later than July 6, 1999. Subpart A also issued under 5 U.S.C. 552, as immediate staff; amended. (iv) The Executive Secretary and all ADDRESSES: Comments may be offices reporting to such official, submitted to: Alana Johnson, 2. Part 1, Subpart A, is revised to read including immediate staff; Departmental Disclosure Officer, as follows: (v) The Under Secretary of the Department of the Treasury, 1500 Subpart AÐFreedom of Information Act Treasury for International Affairs and all Pennsylvania Ave., NW., Washington, Sec. offices reporting to such official, DC 20220. 1.1 General. including immediate staff; FOR FURTHER INFORMATION CONTACT: 1.2 Information made available. (vi) The Under Secretary of the 1.3 Publication in the Federal Register. Alana Johnson, Departmental Disclosure Treasury for Domestic Finance and all Officer, Department of the Treasury, 1.4 Public inspection and copying. 1.5 Specific requests for other records. offices reporting to such official, 1500 Pennsylvania Avenue, NW., including immediate staff; Washington, DC 20220. Telephone: 1.6 Business information. 1.7 Fees for services. (vii) The Under Secretary for (202) 622–0930. Enforcement and all offices reporting to Appendices To Subpart A SUPPLEMENTARY INFORMATION: This part such official, including immediate staff; includes provisions for processing Appendix A—Departmental Offices (viii) The Assistant Secretary of the requests for records maintained in Appendix B—Internal Revenue Service Treasury for Financial Institutions and electronic format, and for making Appendix C—United States Customs Service all offices reporting to such official, certain records and information Appendix D—United States Secret Service Appendix E—Bureau of Alcohol, Tobacco including immediate staff; available by computer and Firearms (ix) The Assistant Secretary of the telecommunications (Internet). It also Appendix F—Bureau of Engraving and Treasury for Economic Policy and all includes provisions pertaining to Printing offices reporting to such official, requests for expedited processing; Appendix G—Financial Management Service including immediate staff; unusual circumstances; and multitrack Appendix H—United States Mint (x) The Fiscal Assistant Secretary and processing. Numerous editorial changes Appendix I—Bureau of the Public Debt all offices reporting to such official, have been made to provide clarity, Appendix J—Office of the Comptroller of the including immediate staff; eliminate redundancy, and reflect Currency (xi) The General Counsel and all organizational and procedural changes Appendix K—Federal Law Enforcement Training Center offices reporting to such official, to the FOIA request process at the Appendix L—Office of Thrift Supervision including immediate staff; except legal Department of the Treasury. counsel to the components listed in The former United States Savings Subpart AÐFreedom of Information paragraphs (a)(1)(xvii) and (a)(2) Bond Division is now part of the Bureau Act through (12) of this section; of the Public Debt. Therefore, Appendix (xii) The Inspector General and all K of Subpart A has been deleted. § 1.1 General. offices reporting to such official, The Department has determined that (a) Purpose and scope. This subpart including immediate staff; this document is not a significant contains the regulations of the (xiii) The Assistant Secretary of the regulatory action for purposes of E.O. Department of the Treasury Treasury for International Affairs and all 12866. Because this document implementing the Freedom of offices reporting to such official, incorporates new statutory requirements Information Act (FOIA), 5 U.S.C. 552, as including immediate staff; and clarifies the current regulations, it amended by the Electronic Freedom of (xiv) The Assistant Secretary of the is hereby certified that this rule will not Information Act Amendments of 1996. Treasury for Legislative Affairs and have a significant economic impact on The regulations set forth procedures for Public Liaison and all offices reporting a substantial number of small entities. requesting access to records maintained to such official, including immediate For this reason, an initial regulatory by the Department of the Treasury. staff; flexibility analysis under the Regulatory These regulations apply to all bureaus of (xv) The Assistant Secretary of the Flexibility Act, 5 U.S.C. 601–612, is not the Department of the Treasury. Any Treasury for Management and Chief required. reference in this subpart to the Financial Officer and all offices
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.001 pfrm01 PsN: 06MYP2 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24455 reporting to such official, including (6) Computer software means tools by section 552 are intended to assure the immediate staff; which records are created, stored, and right of the public to information. (xvi) The Assistant Secretary of the retrieved. Normally, computer software, Generally, this section divides agency Treasury for Public Affairs and all including source code, object code, and information into three major categories offices reporting to such official, listings of source and object codes, and provides methods by which each including immediate staff; regardless of medium, are not agency category of information is to be made (xvii) The Assistant Secretary of the records. However, when data are available to the public. The three major Treasury for Tax Policy and all offices embedded within the software and categories of information are as follows: reporting to such official, including cannot be extracted without the (1) Information required to be immediate staff; software, the software may have to be published in the Federal Register (see (xviii) The Treasurer of the United treated as an agency record. Proprietary § 1.3); States, including immediate staff; (or copyrighted) software is not an (2) Information required to be made (xix) The Treasury Inspector General agency record. available for public inspection and for Tax Administration and all offices (7) Confidential commercial copying or, in the alternative, to be reporting to such official, including information means records provided to published and offered for sale (see immediate staff. the government by a submitter that § 1.4); and (2) The Bureau of Alcohol, Tobacco arguably contain material exempt from (3) Information required to be made and Firearms. release under Exemption 4 of the available to any member of the public (3) The Office of the Comptroller of Freedom of Information Act, 5 U.S.C. upon specific request (see § 1.5). the Currency. 552(b)(4), because disclosure could (b) Subject only to the exemptions (4) The United States Customs reasonably be expected to cause and exclusions set forth in 5 U.S.C. Service. 552(b) and (c), any person shall be (5) The Bureau of Engraving and substantial competitive harm. (8) Duplication refers to the process of afforded access to information or Printing. records in the possession of any bureau (6) The Federal Law Enforcement making a copy of a record in order to respond to a FOIA request. Such copies of the Department of the Treasury, Training Center. subject to the regulations in this subpart (7) The Financial Management can take the form of paper copy, and any regulations of a bureau Service. microform, audio-visual materials, or (8) The Internal Revenue Service. machine readable documentation (e.g., implementing or supplementing them. (9) The United States Mint. magnetic tape or disk), among others. (c) Exemptions. (1) The disclosure (10) The Bureau of the Public Debt. (9) Electronic records means those requirements of 5 U.S.C. 552(a) do not (11) The United States Secret Service. records and information which are apply to certain matters which are (12) The Office of Thrift Supervision. created, stored, and retrievable by exempt under 5 U.S.C. 552(b); nor do For purposes of this subpart, the electronic means. This ordinarily does the disclosure requirements apply to office of the legal counsel for the not include computer software, which is certain matters which are excluded components listed in paragraphs (a)(2) a tool by which to create, store, or under 5 U.S.C. 552(c). through (12) of this section are to be retrieve electronic records. (2) Even though an exemption considered a part of their respective (10) Request means any request for described in 5 U.S.C. 552(b) may be bureaus. Any office which is now in records made pursuant to 5 U.S.C. applicable to the information or records existence or may hereafter be 552(a)(3). requested, a Treasury bureau may, if not established, which is not specifically (11) Requester means any person who precluded by law, elect under the listed or known to be a component of makes a request for access to records. circumstances of that request not to any of those listed above, shall be (12) Responsible official means a apply the exemption. The fact that the deemed a part of the Departmental disclosure officer or the head of the exemption is not applied by a bureau in Offices for the purpose of making organizational unit having immediate response to a particular request shall requests for records under these custody of the records requested, or an have no precedential significance in regulations. official designated by the head of the processing other requests, but is merely (b) Definitions. As used in this organizational unit. an indication that, in the processing of subpart, the following terms shall have (13) Review, for fee purposes, refers to the particular request, the bureau finds the following meanings: the process of examining records no necessity for applying the (1) Agency has the meaning given in located in response to a commercial use exemption. 5 U.S.C. 551(1) and 5 U.S.C. 552(f). request to determine whether any (2) Appeal means a request for a portion of any record located is § 1.3 Publication in the Federal Register. review of an agency’s determination permitted to be withheld. It also (a) Requirement. Subject to the with regard to a fee waiver, category of includes processing any records for application of the exemptions and requester, expedited processing, or disclosure; e.g., doing all that is exclusions in 5 U.S.C. 552(b) and (c) denial in whole or in part of a request necessary to excise them and otherwise and subject to the limitations provided for access to a record or records. prepare them for release. in 5 U.S.C. 552(a)(1), each Treasury (3) Bureau means an entity of the (14) Search includes all time spent bureau shall, in conformance with 5 Department of the Treasury that is looking for material that is responsive to U.S.C. 552(a)(1), separately state, authorized to act independently in a request, including page-by-page or publish and maintain current in the disclosure matters. line-by-line identification of material Federal Register for the guidance of the (4) Business information means trade within records. Searches may be done public the following information with secrets or other commercial or financial manually or by automated means. respect to that bureau: information. (1) Descriptions of its central and field (5) Business submitter means any § 1.2 Information made available. organization and the established places entity which provides business (a) General. The FOIA (5 U.S.C. 552) at which, the persons from whom, and information to the Department of the provides for access to information and the methods whereby, the public may Treasury or its bureaus and which has records developed or maintained by obtain information, make submittals or a proprietary interest in the information. Federal agencies. The provisions of requests, or obtain decisions;
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(2) Statements of the general course (b) Information made available by § 1.5 Specific requests for other records. and method by which its functions are computer telecommunications. For (a) In general. (1) Except for records channeled and determined, including records required to be made available made available under 5 U.S.C. 552(a)(1) the nature and requirements of all for public inspection and copying and (a)(2), but subject to the application formal and informal procedures pursuant to 5 U.S.C. 552(a)(2) of the exemptions and exclusions available; (paragraphs (a)(1) through (4) of this described in 5 U.S.C. 552(b) and (c), (3) Rules of procedure, descriptions of section) which are created on or after each bureau of the Department of the forms available or the places at which November 1, 1996, no later than one Treasury shall promptly make the forms may be obtained, and instructions year after such records are created each requested records available to any as to the scope and contents of all bureau shall make such records person in conformance with 5 U.S.C. papers, reports, or examinations; available on the Internet. 552(a)(3). The request must conform in (4) Substantive rules of general (c) Deletion of identifying details. To every respect with the rules and applicability adopted as authorized by prevent a clearly unwarranted invasion procedures of this subpart and the law, and statements of general policy or of personal privacy, or pursuant to an applicable bureau’s appendix to this interpretations of general applicability exemption in 5 U.S.C. 552(b), a Treasury subpart. Any request or appeal from the formulated and adopted by the bureau; bureau may delete information initial denial of a request that does not and contained in any matter described in comply with the requirements in this (5) Each amendment, revision, or paragraphs (a)(1) through (4) of this subpart will not be considered subject to repeal of matters referred to in section before making such matters the time constraints of paragraphs (h), paragraphs (a)(1) through (4) of this available for inspection or publishing it. (i), and (j) of this section, unless and section. The justification for the deletion shall until the request is amended to comply. (b) The United States Government be explained fully in writing, and the Bureaus shall promptly advise the Manual. The functions of each bureau extent of such deletion shall be requester in what respect the request or are summarized in the description of the indicated on the portion of the record appeal is deficient so that it may be Department and its bureaus in the which is made available or published, amended and resubmitted for United States Government Manual, unless including that indication would consideration in accordance with this which is issued annually by the Office harm an interest protected by the subpart. If a requester does not respond of the Federal Register. exemption in 5 U.S.C. 552(b) under within 30 days to a communication from a bureau to amend the request in § 1.4 Public inspection and copying. which the deletion is made. If technically feasible, the extent of the order for it to be in conformance with (a) In general. Subject to the deletion shall be indicated at the place this subpart, the request file will be application of the exemptions and in the record where the deletion was considered closed. When the request exclusions described in 5 U.S.C. 552(b) made. conforms with the requirements of this and (c), each Treasury bureau shall, in (d) Public reading rooms. Each bureau subpart, bureaus shall make every conformance with 5 U.S.C. 552(a)(2), reasonable effort to comply with the make available for public inspection of the Department of the Treasury shall make available for public inspection request within the time constraints. If and copying, or, in the alternative, the description of the record requested promptly publish and offer for sale the and copying, in a reading room or otherwise, the material described in is of a type that is not maintained by the following information with respect to bureau, the requester shall be so advised the bureau: paragraphs (a)(1) through (5) of this section. Fees for duplication shall be and the request shall be returned to the (1) Final opinions, including requester. concurring and dissenting opinions, and charged in accordance with § 1.7. See the appendices to this subpart for the (2) This subpart applies only to orders, made in the adjudication of existing records in the possession or cases; location of established bureau reading rooms. control of the bureau at the time of the (2) Those statements of policy and request. Records considered to be interpretations which have been (e) Indexes. (1) Each bureau of the responsive to the request are those in adopted by the bureau but are not Department of the Treasury shall existence on or before the date of receipt published in the Federal Register; maintain and make available for public of the request by the appropriate bureau (3) Its administrative staff manuals inspection and copying current indexes official. Requests for the continuing and instructions to staff that affect a identifying any material described in production of records created after the member of the public; paragraphs (a)(1) through (3) of this date of the appropriate bureau official’s (4) Copies of all records, regardless of section. In addition, each bureau shall receipt of the request shall not be form or format, which have been promptly publish, quarterly or more honored. Bureaus shall provide the released to any person under 5 U.S.C. frequently, and distribute (by sale or responsive record or records in the form 552(a)(3), and which the bureau otherwise) copies of each index or or format requested if the record or determines have become or are likely to supplement unless the head of each records are readily reproducible by the become the subject of subsequent bureau (or a delegate) determines by bureau in that form or format. Bureaus requests for substantially the same order published in the Federal Register shall make reasonable efforts to records because they are clearly of that the publication would be maintain their records in forms or interest to the public at large. The unnecessary and impractical, in which formats that are reproducible for the determination that records have become case the bureau shall nonetheless purpose of disclosure. For purposes of or may become the subject of provide copies of the index on request this section, ‘‘readily reproducible’’ subsequent requests shall be made by at a cost not to exceed the direct cost of means, with respect to electronic the Responsible Official (as defined at duplication. format, a record or records that can be § 1.1(b)(12)). (2) Each bureau shall make the index downloaded or transferred intact to a (5) A general index of the records referred to in paragraph (a)(5) of this floppy disk, computer disk (CD), tape, referred to in paragraph (a)(4) of this section available on the Internet by or other electronic medium using section. December 31, 1999. equipment currently in use by the office
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.005 pfrm01 PsN: 06MYP2 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24457 or offices processing the request. Even an institution of undergraduate higher NW, Washington, DC 20220. Requesters though some records may initially be education, an institution of professional may access the ‘‘FOIA Home Page’’ at readily reproducible, the need to education, and an institution of the Department of the Treasury World segregate exempt from nonexempt vocational education, which operates a Wide Web site at: http:// records may cause the releasable program or programs of scholarly www.ustreas.gov. material to not be readily reproducible. research. This category does not include (4) The request must reasonably (3) Requests for information classified requesters wanting records for use in describe the records in accordance with pursuant to Executive Order 12958, meeting individual academic research paragraph (d) of this section. ‘‘Classified National Security or study requirements. (5) The request must set forth the Information,’’ require the responsible (iii) Non-commercial scientific address where the person making the bureau to review the information to institution. This refers to an institution request wants to be notified about determine whether it continues to that is not operated on a ‘‘commercial’’ whether or not the request will be warrant classification. Information basis as that term is defined in granted. which no longer warrants classification paragraph (b)(2)(i) of this section, and (6) The request must state whether the under the Executive Order’s criteria which is operated solely for the purpose requester wishes to inspect the records shall be declassified and made available of conducting scientific research, the or desires to have a copy made and to the requester, unless the information results of which are not intended to furnished without first inspecting them. is otherwise exempt from disclosure. promote any particular product or (7) The request must state the firm (b) Form of request. In order to be industry. agreement of the requester to pay the subject to the provisions of this section, (iv) Representative of the news media. fees for search, duplication, and review the following must be satisfied. This refers to any person actively as may ultimately be determined in (1) The request for records shall be gathering news for an entity that is accordance with § 1.7. The agreement made in writing, signed by the person organized and operated to publish or may state the upper limit (but not less making the request, and state that it is broadcast news to the public. The term than $25) that the requester is willing to made pursuant to the Freedom of ‘‘news’’ means information that is about pay for processing the request. A request Information Act, 5 U.S.C. 552, or this current events or that would be of that fees be waived or reduced may subpart. current interest to the public. Examples accompany the agreement to pay fees (2) The request shall indicate whether of news media entities include and shall be considered to the extent the requester is a commercial user, an television or radio stations broadcasting that such request is made in accordance educational institution, non-commercial to the public at large, and publishers of with § 1.7(d) and provides supporting scientific institution, representative of periodicals (but only in those instances information to be measured against the the news media, or ‘‘other’’ requester, when they can qualify as disseminators fee waiver standard set forth in subject to the fee provisions described of ‘‘news’’) who make their products § 1.7(d)(1). The requester shall be in § 1.7. In order for the Department to available for purchase or subscription notified in writing of the decision to determine the proper category for fee by the general public. These examples grant or deny the fee waiver. A requester purposes as defined in this section, a are not intended to be all-inclusive. In shall be asked to provide an agreement request for records shall also state how the case of ‘‘freelance’’ journalists, they to pay fees when the request for a fee the records released will be used. This may be regarded as working for a news waiver or reduction is denied and the information shall not be used to organization if they can demonstrate a initial request for records does not determine the releasibility of any record solid basis for expecting publication include such agreement. If a requester or records. A determination of the through that organization, even though has an outstanding balance of search, proper category of requester shall be not actually employed by it. A review, or duplication fees due for FOIA based upon a review of the requester’s publication contract would be the request processing, the requirements of submission and the bureau’s own clearest proof, but bureaus may also this paragraph are not met until the records. Where a bureau has reasonable look to the past publication record of a requester has remitted the outstanding cause to doubt the use to which a requester in making this determination. balance due. requester will put the records sought, or (v) ‘‘Other’’ requester. This refers to a (c) Requests for records not in control where that use is not clear from the requester who does not fall within any of bureau; referrals; consultations. (1) request itself, bureaus should seek of the previously described categories. When a requested record is in the additional clarification before assigning (3) The request must be properly possession or under the control of a the request to a specific category. The addressed to the bureau that maintains bureau of the Department other than the categories of requesters are defined as the record. The functions of each bureau office to which the request is addressed, follows: are summarized in The United States the request for the record shall be (i) Commercial. A commercial use Government Manual which is issued transferred to the appropriate bureau request refers to a request from or on annually and is available from the and the requester notified. This referral behalf of one who seeks information for Superintendent of Documents. Both the shall not be considered a denial of a use or purpose that furthers the envelope and the request itself should access within the meaning of these commercial, trade, or profit interests of be clearly marked ‘‘Freedom of regulations. The bureau of the the requester or the person on whose Information Act Request.’’ See the Department to which this referral is behalf the request is made, which can appendices to this subpart for the office made shall treat this request as a new include furthering those interests or officer to which requests shall be request addressed to it and the time through litigation. The bureaus may addressed for each bureau. A requester limits for response set forth by determine from the use specified in the in need of guidance in defining a paragraph (h)(1) of this section shall request that the requester is a request or determining the proper begin when the referral is received by commercial user. bureau to which a request should be the designated office or officer of the (ii) Educational institution. This refers sent may contact Disclosure Services at bureau. to a preschool, a public or private 202/622–0930, or by writing to (2) When a requested record has been elementary or secondary school, an Disclosure Services, Department of the created by an agency or Treasury bureau institution of graduate higher education, Treasury, 1500 Pennsylvania Avenue, other than the Treasury bureau
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.007 pfrm01 PsN: 06MYP2 24458 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules possessing the record, the bureau having records. A compelling need is defined clearly marked, ‘‘Appeal for Expedited custody of the record shall refer the as follows: Processing.’’ record to the originating agency or (i) Failure to obtain the requested (6) An appeal determination regarding Treasury bureau for a direct response to records on an expedited basis could expedited processing shall be made, and the requester. The requester shall be reasonably be expected to pose an the requester notified, within 10 days informed of the referral unless imminent threat to the life or physical (excluding Saturdays, Sundays, and otherwise instructed by the originating safety of an individual. The requester legal public holidays) from the date of agency. This is not a denial of a FOIA shall fully explain the circumstances receipt of the appeal. request; thus no appeal rights accrue to warranting such an expected threat so (f) Date of receipt of request. A request the requester. that the Department may make a for records shall be considered to have (3) When a FOIA request is received reasoned determination that a delay in been received on the date on which a for a record created by a Treasury obtaining the requested records could complete request containing the bureau that includes information pose such a threat; or information required by paragraph (b) of originated by another bureau of the (ii) With respect to a request made by this section has been received. A Department of the Treasury or another a person primarily engaged in determination that a request is deficient agency, the record shall be referred to disseminating information, urgency to in any respect is not a denial of access, the originating agency or bureau for inform the public concerning actual or and such determinations are not subject review and recommendation on alleged Federal Government activity. A to administrative appeal. Requests shall disclosure. The agency or bureau shall person ‘‘primarily engaged in be stamped with the date of receipt by respond to the referring office. The disseminating information’’ does not the office prescribed in the appropriate Treasury bureau shall not release any include individuals who are engaged appendix. As soon as the date of receipt such records without prior consultation only incidentally in the dissemination has been established, the requester shall with the originating bureau or agency. of information. The standard of be so informed and shall also be advised (4) In certain instances and at the ‘‘urgency to inform’’ requires that the when to expect a response. The discretion of the Departmental Offices, records requested pertain to a matter of acknowledgement of receipt requests having impact on two or more current exigency to the American public requirement shall not apply if a bureaus of the Department may be and that delaying a response to a request disclosure determination will be issued coordinated by the Departmental for records would compromise a prior to the end of the 20-day time limit. Offices. significant recognized interest to and (g) Search for record requested. (d) Reasonable description of records. throughout the American general Department of the Treasury employees The request for records must describe public. The requester must adequately shall search to identify and locate the records in reasonably sufficient explain the matter or activity and why requested records, including records detail to enable employees who are the records sought are necessary to be stored at Federal Records Centers. familiar with the subject area of the provided on an expedited basis. Searches for records maintained in request to locate the records without (3) A demonstration of a compelling electronic form or format may require placing an unreasonable burden upon need by a person making a request for the application of codes, queries, or the Department. Whenever possible, a expedited processing shall be made by other minor forms of programming to request should include specific a statement certified by the requester to retrieve the requested records. Wherever information about each record sought, be true and correct to the best of his or reasonable, searches shall be done by such as the date, title or name, author, her knowledge and belief. The statement electronic means. However, searches of recipients, and subject matter of the must be in the form prescribed by 28 electronic records are not required when record. If the Department determines U.S.C. 1746, ‘‘I declare under penalty of such searches would significantly that the request does not reasonably perjury that the foregoing is true and interfere with the operation of a describe the records sought, the correct to the best of my knowledge and Treasury automated information system requester shall be given an opportunity belief. Executed on [date].’’ or would require unreasonable effort to to provide additional information. Such (4) Upon receipt by the appropriate conduct. The Department of the opportunity may, when necessary, bureau official, a request for expedited Treasury is not required under 5 U.S.C. involve a discussion with processing shall be considered and a 552 to tabulate or compile information knowledgeable Department of the determination as to whether to grant or for the purpose of creating a record or Treasury personnel. The reasonable deny the request for expedited records that do not exist. description requirement shall not be processing shall be made, and the (h) Initial determination. (1) In used by officers or employees of the requester notified, within 10 calendar general. The officers designated in the Department of the Treasury to days of the date of the request. However, appendices to this part shall make improperly withhold records from the in no event shall the bureau have fewer initial determinations either to grant or public. than five days (excluding Saturdays, to deny in whole or in part requests for (e) Requests for expedited processing. Sundays, and legal public holidays) records. Such officers shall respond in (1) When a request for records includes from the date of receipt of the request the approximate order of receipt of the a request for expedited processing, both for such processing. The determination requests, to the extent consistent with the envelope and the request itself must to grant or deny a request for expedited sound administrative practice. These be clearly marked, ‘‘Expedited processing may be made solely on the determinations shall be made and the Processing Requested.’’ information contained in the initial requester notified within 20 days (2) Records will be processed as soon letter requesting expedited treatment. (excepting Saturdays, Sundays, and as practicable when a requester asks for (5) Appeals of initial determinations legal public holidays) after the date of expedited processing in writing and is to deny expedited processing must be receipt of the request, as determined in granted such expedited treatment by the made within 10 calendar days of the accordance with paragraph (f) of this Department. The requester must date of the initial letter of determination section, unless the designated officer demonstrate a compelling need for denying expedited processing. Both the invokes an extension pursuant to expedited processing of the requested envelope and the appeal itself shall be paragraph (j)(1) of this section or the
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.009 pfrm01 PsN: 06MYP2 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24459 requester otherwise agrees to an (i) Administrative appeal. (1)(i) A officer specified in the appropriate extension of the 20-day time limitation. requester may appeal a Department of appendix to this subpart and the (2) Granting of request. If the request the Treasury initial determination requester advised of the date the appeal is granted in full or in part, and if the when: was received and the expected date of requester wants a copy of the records, a (A) Access to records has been denied response. The decision to affirm the copy of the records shall be mailed to in whole or in part; initial determination (in whole or in the requester, together with a statement (B) There has been an adverse part) or to grant the request for records of the applicable fees, either at the time determination of the requester’s shall be made and notification of the of the determination or shortly category as provided in § 1.7(d)(4); determination mailed within 20 days thereafter. (C) A request for fee waiver or (exclusive of Saturdays, Sundays, and (3) Inspection of records. In the case reduction has been denied; legal public holidays) after the date of of a request for inspection, the requester (D) It has been determined that no receipt of the appeal, unless extended shall be notified in writing of the responsive records exist; or pursuant to paragraph (j)(1) of this determination, when and where the (E) A request for expedited processing section. If it is decided that the initial requested records may be inspected, and has been denied. determination is to be upheld (in whole of the fees incurred in complying with (ii) An appeal, other than an appeal or in part) the requester shall be— the request. The records shall then for expedited processing, must be (A) Notified in writing of the denial; promptly be made available for submitted within 35 days of the date of (B) Notified of the reasons for the inspection at the time and place stated, the initial determination or the date of denial, including the FOIA exemptions in a manner that will not interfere with the letter transmitting the last records relied upon; Department of the Treasury operations released, whichever is later, except in (C) Notified of the name and title or and will not exclude other persons from the case of a denial for expedited position of the official responsible for making inspections. The requester shall processing. An appeal of a denial for the determination on appeal; and not be permitted to remove the records expedited processing must be made (D) Provided with a statement that from the room where inspection is within 10 days of the date of the initial judicial review of the denial is available made. If, after making inspection, the determination to deny expedited in the United States District Court for requester desires copies of all or a processing (see § 1.5(e)(5)). All appeals the judicial district in which the portion of the requested records, copies must be submitted to the official requester resides or has a principal shall be furnished upon payment of the specified in the appropriate appendix to place of business, the judicial district in established fees prescribed by § 1.7. this subpart whose title and address which the requested records are located, Fees may be charged for search and should also have been included in the or the District of Columbia in review time as stated in § 1.7. initial determination. An appeal that is accordance with 5 U.S.C. 552(a)(4)(B). (4) Denial of request. If it is improperly addressed shall be (ii) If the initial determination is determined that the request for records considered not to have been received by reversed on appeal, the requester shall should be denied in whole or in part, the Department until the office specified be so notified and the request shall be the requester shall be notified by mail. in the appropriate appendix receives the processed promptly in accordance with The letter of notification shall: appeal. the decision on appeal. (i) State the exemptions relied on in (2) The appeal shall— (4) If a determination cannot be made not granting the request; (i) Be made in writing and signed by within the 20-day period (or within a (ii) If technically feasible, indicate the the requester or his or her period of extension pursuant to amount of information deleted at the representative; paragraph (j)(1) of this section), the place in the record where such deletion (ii) Be addressed to and mailed or requester may be invited to agree to a is made (unless providing such hand delivered within 35 days (or voluntary extension of the 20-day indication would harm an interest within 10 days when expedited appeal period. This voluntary extension protected by the exemption relied upon processing has been denied) of the date shall not constitute a waiver of the right to deny such material); of the initial determination, or the date of the requester ultimately to commence (iii) Set forth the name and title or of the letter transmitting the last records an action in a United States district position of the responsible official; released, whichever is later, to the office court. (iv) Advise the requester of the right or officer specified in the appropriate (j) Time extensions; unusual to administrative appeal in accordance appendix to this subpart and also in the circumstances. (1) In unusual with paragraph (i) of this section; and initial determination. (See the circumstances, the time limitations (v) Specify the official or office to appendices to this subpart for the specified in paragraphs (h) and (i) of which such appeal shall be submitted. address to which appeals made by mail this section may be extended by written (5) No records found. If it is should be addressed); notice from the official charged with the determined, after a thorough search for (iii) Set forth the address where the duty of making the determination to the records by the responsible official or his requester desires to be notified of the person making the request or appeal delegate, that no records have been determination on appeal; setting forth the reasons for this found to exist, the responsible official (iv) Specify the date of the initial extension and the date on which the will so notify the requester in writing. request and date of the letter of initial determination is expected to be sent. As The letter of notification will advise the determination, and, where possible, used in this paragraph, ‘‘unusual requester of the right to administratively enclose a copy of the initial request and circumstances’’ means, but only to the appeal the Department’s determination the initial determination being extent reasonably necessary to the that no records exist (i.e., to challenge appealed. proper processing of the particular the adequacy of the Department’s search (3)(i) Appeals shall be stamped with requests: for responsive records) in accordance the date of their receipt by the office to (i) The need to search for and collect with paragraph (i) of this section. The which addressed, and shall be the requested records from field response shall specify the official or processed in the approximate order of facilities or other establishments that are office to which the appeal shall be their receipt. The receipt of the appeal separate from the office processing the submitted for review. shall be acknowledged by the office or request;
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(ii) The need to search for, collect, located, in which the records are provides acceptable justification for, a and appropriately examine a situated, or in the District of Columbia, specific notice period of greater voluminous amount of separate and pursuant to 5 U.S.C. 552(a)(4). duration. distinct records which are demanded in (m) Preservation of records. Under no (4) The submitter’s claim of a single request; or circumstances shall records be confidentiality should be supported by (iii) The need for consultation, which destroyed while they are the subject of a statement by an authorized shall be conducted with all practicable a pending request, appeal, or lawsuit representative of the company providing speed, with another agency having a under the FOIA. specific justification that the substantial interest in the determination (n) Processing requests that are not information in question is in fact of the request, or among two or more properly addressed. A request that is not confidential commercial or financial bureaus or components of bureaus of the properly addressed as specified in the information and has not been disclosed Department of the Treasury having appropriate appendix to this subpart to the public. substantial subject matter interest shall be forwarded to the appropriate (d) Opportunity to object to therein. bureau or bureaus for processing. If the disclosure. (1) Through the notice (2) Any extension or extensions of recipient of the request does not know described in paragraph (b) of this time shall not cumulatively total more the appropriate bureau to forward it to, section, a bureau shall afford a business than 10 days (exclusive of Saturdays, the request shall be forwarded to the submitter ten days from the date of the Sundays, and legal public holidays). Departmental Disclosure Officer notice (exclusive of Saturdays, Sundays, However, if additional time is needed to (Disclosure Services, DO), who will and legal public holidays) to provide the process the request, the bureau shall determine the appropriate bureau. A bureau with a detailed statement of any notify the requester and provide the request not addressed to the appropriate objection to disclosure. Such statement requester an opportunity to limit the bureau will be considered to have been shall specify all grounds for scope of the request or arrange for an received for purposes of paragraph (f) of withholding any of the information alternative time frame for processing the this section when the request has been under any exemption of the Freedom of request or a modified request. The received by the appropriate bureau Information Act and, in the case of requester shall retain the right to define office as designated in the appropriate Exemption 4, shall demonstrate why the the desired scope of the request, as long appendix to this subpart. An improperly information is considered to be a trade as it meets the requirements contained addressed request, when received by the secret or commercial or financial in this subpart. appropriate bureau office, shall be information that is privileged or (3) Bureaus may establish multitrack acknowledged by that bureau. confidential. Information provided by a processing of requests based on the business submitter pursuant to this amount of work or time, or both, § 1.6 Business information. paragraph may itself be subject to involved in processing requests. (a) In general. Business information disclosure under the FOIA. (4) If more than one request is provided to the Department of the (2) When notice is given to a received from the same requester, or Treasury by a business submitter shall submitter under this section, the from a group of requesters acting in not be disclosed pursuant to a Freedom requester shall be advised that such concert, and the Department believes of Information Act request except in notice has been given to the submitter. that such requests constitute a single accordance with this section. The requester shall be further advised request which would otherwise satisfy (b) Notice to business submitters. A that a delay in responding to the request the unusual circumstances specified in bureau shall provide a business may be considered a denial of access to paragraph (j)(1) of this section, and the submitter with prompt written notice of records and that the requester may requests involve clearly related matters, receipt of a request encompassing its proceed with an administrative appeal the Department may aggregate these business information whenever required or seek judicial review, if appropriate. requests for processing purposes. in accordance with paragraph (c) of this However, the requester will be invited (k) Failure to comply. If a bureau of section, and except as is provided in to agree to a voluntary extension of time the Department of the Treasury fails to paragraph (g) of this section. Such so that the bureau may review the comply with the time limits specified in written notice shall either describe the business submitter’s objection to paragraph (h) or (i), or the time exact nature of the business information disclose. extensions of paragraph (j) of this requested or provide copies of the (e) Notice of intent to disclose. A section, any person making a request for records or portions of records bureau shall consider carefully a records in accordance with § 1.5 shall be containing the business information. business submitter’s objections and considered to have exhausted (c) When notice is required. The specific grounds for nondisclosure prior administrative remedies with respect to bureau shall provide a business to determining whether to disclose the request. Accordingly, the person submitter with notice of receipt of a business information. Whenever a making the request may initiate suit as request whenever: bureau decides to disclose business set forth in paragraph (l) of this section. (1) The business submitter has in information over the objection of a (l) Judicial review. If an adverse good faith designated the information as business submitter, the bureau shall determination is made upon appeal commercially or financially sensitive forward to the business submitter a pursuant to paragraph (i) of this section, information, or written notice which shall include: or if no determination is made within (2) The bureau has reason to believe (1) A statement of the reasons for the time limits specified in paragraphs that disclosure of the information could which the business submitter’s (h) and (i) of this section, together with reasonably be expected to cause disclosure objections were not any extension pursuant to paragraph substantial competitive harm. sustained; (j)(1) of this section or within the time (3) Notice of a request for business (2) A description of the business otherwise agreed to by the requester, the information falling within paragraph (c) information to be disclosed; and requester may commence an action in a (1) or (2) of this section shall be required (3) A specified disclosure date which United States district court in the for a period of not more than ten years is not less than ten days (exclusive of district in which he resides, in which after the date of submission unless the Saturdays, Sundays, and legal public his principal place of business is business submitter requests, and holidays) after the notice of the final
VerDate 26-APR-99 16:28 May 05, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP2.XXX pfrm02 PsN: 06MYP2 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24461 decision to release the requested commercial scientific institution) official when it is determined, based information has been mailed to the research. These categories do not upon the submission of the requester, submitter. Except as otherwise include requesters who want records for that a waiver or reduction of the fees is prohibited by law, a copy of the use in meeting individual academic in the public interest because furnishing disclosure notice shall be forwarded to research or study requirements. the information is likely to contribute the requester at the same time. (3) Requesters who are representatives significantly to public understanding of (f) Notice of FOIA lawsuit. Whenever of the news media. Records shall be the operations or activities of the a requester brings suit seeking to compel provided to requesters in this category government and is not primarily in the disclosure of business information for the cost of duplication alone, commercial interest of the requester. Fee covered by paragraph (c) of this section, excluding charges for the first 100 waiver/reduction requests shall be the bureau shall promptly notify the pages. evaluated against the fee waiver policy business submitter. (4) All other requesters. Requesters guidance issued by the Department of (g) Exception to notice requirement. who do not fit any of the categories Justice on April 2, 1987. The notice requirements of this section described above shall be charged fees (2) Normally no charge shall be made shall not apply if: that will recover the full direct cost of for providing records to state or foreign (1) The bureau determines that the searching for and duplicating records governments, international information shall not be disclosed; that are responsive to the request, governmental organizations, or local (2) The information lawfully has been except that the first 100 pages of government agencies or offices. published or otherwise made available duplication and the first two hours of (3) Appeals from denials of requests to the public; or search time shall be furnished without for waiver or reduction of fees shall be (3) Disclosure of the information is charge. The Department may recover the decided in accordance with the criteria required by law (other than 5 U.S.C. cost of searching for records even if set forth in paragraph (d)(1) of this 552). there is ultimately no disclosure of section by the official authorized to decide appeals from denials of access to § 1.7 Fees for services. records, or no records are located. Requests from persons for records about records. Appeals shall be addressed in (a) In general. This fee schedule is themselves filed in the Department’s writing to the office or officer specified applicable uniformly throughout the systems of records shall continue to be in the appropriate appendix to this Department of the Treasury and pertains treated under the fee provisions of the subpart within 35 days of the denial of to requests processed under the Privacy Act of 1974 which permit fees the initial request for waiver or Freedom of Information Act. Specific only for duplication, after the first 100 reduction and shall be decided within levels of fees are prescribed for each of pages are furnished free of charge. 20 days (excluding Saturdays, Sundays, the following categories of requesters. (b) Fee waiver determination. Where and legal public holidays). Requesters are asked to identify the the initial request includes a request for (4) Appeals from an adverse applicable fee category they belong to in reduction or waiver of fees, the determination of the requester’s their initial request in accordance with responsible official shall determine category as described in § 1.5(b)(2) and § 1.5(b). whether to grant the request for provided in § 1.5(i)(1) shall be decided (1) Commercial use requesters. These reduction or waiver before processing by the official authorized to decide requesters are assessed charges which the request and notify the requester of appeals from denials of access to recover the full direct costs of searching this decision. If the decision does not records and shall be based upon a for, reviewing, and duplicating the waive all fees, the responsible official review of the requester’s submission records sought. Commercial use shall advise the requester of the fact that and the bureau’s own records. Appeals requesters are not entitled to two hours fees shall be assessed and, if applicable, shall be addressed in writing to the of free search time or 100 free pages of payment must be made in advance office or officer specified in the duplication of documents. Moreover, pursuant to § 1.7(e)(2). appropriate appendix to this subpart when a request is received for (c) When fees are not charged. (1) No within 35 days of the date of the disclosure that is primarily in the fee shall be charged for monitoring a bureau’s determination of the commercial interest of the requester, the requester’s inspection of records. requester’s category and shall be Department is not required to consider (2) Fees shall be charged in decided within 20 days (excluding a request for a waiver or reduction of accordance with the schedule contained Saturdays, Sundays, and legal public fees based upon the assertion that in paragraph (g) of this section for holidays). disclosure would be in the public services rendered in responding to (e) Advance notice of fees. (1) When interest. The Department may recover requests for records, unless any one of the fees for processing the request are the cost of searching for and reviewing the following applies: estimated to exceed the limit set by the records even if there is ultimately no (i) Services were performed without requester, and that amount is less than disclosure of records, or no records are charge; $250, the requester shall be notified of located. (ii) The cost of collecting a fee would the estimated costs. The requester must (2) Educational and non-commercial be equal to or greater than the fee itself; provide an agreement to pay the scientific institution requesters. Records or, estimated costs; however, the requester shall be provided to requesters in these (iii) The fees were waived or reduced shall also be given an opportunity to categories for the cost of duplication in accordance with paragraph (d) of this reformulate the request in an attempt to alone, excluding charges for the first 100 section. reduce fees. pages. To be eligible, requesters must (d) Waiver or reduction of fees. (1) (2) If the requester has failed to state show that the request is made under the Fees may be waived or reduced on a a limit and the costs are estimated to auspices of a qualifying institution and case-by-case basis in accordance with exceed $250.00, the requester shall be that the records are not sought for a this paragraph by the official who notified of the estimated costs and must commercial use, but are sought in determines the availability of the pre-pay such amount prior to the furtherance of scholarly (if the request is records, provided such waiver or processing of the request, or provide from an educational institution) or reduction has been requested in writing. satisfactory assurance of full payment if scientific (if the request is from a non- Fees shall be waived or reduced by this the requester has a history of prompt
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.015 pfrm01 PsN: 06MYP2 24462 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules payment of FOIA fees. The requester bureau shall charge requesters as covered by this part nor required by the shall also be given an opportunity to follows: FOIA are chargeable at the actual cost to reformulate the request in such a way as (i) $.20 per page, up to 81⁄2 x 14′′, the Department. This includes, but is to constitute a request for responsive made by photocopy or similar process. not limited to: records at a reduced fee. (ii) Photographs, films, and other (i) Certifying that records are true (3) When the Department or a bureau materials—actual cost of duplication. copies; of the Department acts under paragraph (iii) Other types of duplication (ii) Sending records by special (e) (1) or (2) of this section, the services not mentioned above—actual methods such as express mail, etc. administrative time limits of 20 days cost. (h) Aggregating requests. When the (excluding Saturdays, Sundays, and (iv) Material provided to a private Department or a bureau of the legal public holidays) from receipt of contractor for copying shall be charged Department reasonably believes that a initial requests or appeals, plus to the requester at the actual cost requester or group of requesters is extensions of these time limits, shall charged by the private contractor. attempting to break a request down into begin only after fees have been paid, a (2) Search services. Bureaus shall a series of requests for the purpose of written agreement to pay fees has been charge for search services consistent evading the assessment of fees, the provided, or a request has been with the following: agency shall aggregate any such requests reformulated. (i) Searches for other than electronic and charge accordingly. (f) Form of payment. (1) Payment may records. The Department shall charge be made by check or money order for search time at the salary rate(s) Appendices to Subpart A payable to the Treasury of the United (basic pay plus 16 percent) of the Appendix A—Departmental Offices States or the relevant bureau of the employee(s) making the search. 1. In general. This appendix applies to the Department of the Treasury. However, where a single class of Departmental Offices as defined in 31 CFR (2) The Department of the Treasury personnel is used exclusively (e.g., all 1.1(a)(1). reserves the right to request prepayment administrative/clerical, or all 2. Public reading room. The public reading after a request is processed and before professional/executive), an average rate room for the Departmental Offices is the documents are released. for the range of grades typically Treasury Library. The Library is located in (3) When costs are estimated or involved may be established. This the Main Treasury Building, 1500 determined to exceed $250, the charge shall include transportation of Pennsylvania Avenue, NW., Washington, DC 20220. For building security purposes, Department shall either obtain personnel and records necessary to the visitors are required to make an appointment satisfactory assurance of full payment of search at actual cost. Fees may be by calling 202–622–0990. the estimated cost where the requester charged for search time as prescribed in 3. Requests for records. Initial has a history of prompt payment of § 1.7, even if the search does not yield determinations under 31 CFR 1.5(h) as to FOIA fees or require a requester to make any responsive records, or if records are whether to grant requests for records of the an advance payment of the entire denied. Departmental Offices will be made by the estimated or determined fee before (ii) Searches for electronic records. head of the organizational unit having continuing to process the request. The Department shall charge for actual immediate custody of the records requested (4) If a requester has previously failed or the delegate of such official. Requests for direct cost of the search, including records should be addressed to: Freedom of to pay a fee within 30 days of the date computer search time, runs, and the Information Request, DO, Assistant Director, of the billing, the requester shall be operator’s salary. The fee for computer Disclosure Services, Department of the required to pay the full amount owed output shall be actual direct costs. For Treasury, 1500 Pennsylvania Avenue, NW, plus any applicable interest, and to requesters in the ‘‘all other’’ category, Washington, DC 20220. make an advance payment of the full when the cost of the search (including 4. Administrative appeal of initial amount of the estimated fee before the the operator time and the cost of determination to deny records. Department begins to process a new operating the computer to process a i. Appellate determinations under 31 CFR request or the pending request. 1.5(i) with respect to records of the request) equals the equivalent dollar Departmental Offices will be made by the Whenever interest is charged, the amount of two hours of the salary of the Secretary, Deputy Secretary, Under Secretary, Department shall begin assessing person performing the search (i.e., the General Counsel, Inspector General, interest on the 31st day following the operator), the charge for the computer Treasurer of the United States, or Assistant day on which billing was sent. Interest search will begin. Secretary having jurisdiction over the shall be at the rate prescribed in 31 (3) Review of records. The Department organizational unit which has immediate U.S.C. 3717. In addition, the shall charge commercial use requesters custody of the records requested, or the Department shall take all steps for review of records at the salary rate(s) delegate of such officer. authorized by the Debt Collection Act of (i.e., basic pay plus 16 percent) of the ii. Appellate determinations with respect 1982, as amended by the Debt employee(s) making the review. to requests for expedited processing shall be made by the Deputy Assistant Secretary Collection Improvement Act of 1996, However, when a single class of (Administration). including administrative offset pursuant personnel is used exclusively (e.g., all iii. Appeals should be addressed to: to 31 CFR part 5, disclosure to consumer administrative/clerical, or all Freedom of Information Appeal, DO, reporting agencies and use of collection professional/executive), an average rate Assistant Director, Disclosure Services, agencies, to effect payment. for the range of grades typically Department of the Treasury, 1500 (g) Amounts to be charged for specific involved may be established. Fees may Pennsylvania Avenue, NW, Washington, DC services. The fees for services performed be charged for review time as prescribed 20220. by a bureau of the Department of the in § 1.7, even if records ultimately are 5. Delivery of process. Service of process Treasury shall be imposed and collected not disclosed. will be received by the General Counsel of the Department of the Treasury or the as set forth in this paragraph. (4) Inspection of records. Fees for all delegate of such officer and shall be (1) Duplicating records. All services provided shall be charged delivered to the following location: requesters, except commercial whether or not copies are made General Counsel, Department of the requesters, shall receive the first 100 available to the requester for inspection. Treasury, Room 3000, Main Treasury pages duplicated without charge. (5) Other services. Other services and Building, 1500 Pennsylvania Avenue, NW., Absent a determination to waive fees, a materials requested which are not Washington, DC 20220.
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Appendix B—Internal Revenue Service Counsel, Internal Revenue Building, 1111 Chicago—SAC 1. In general. This appendix applies to the Constitution Avenue NW., Washington, D.C. 610 South Canal Street, Room 1001, Chicago, Internal Revenue Service. See also 26 CFR 5. Delivery of process. Service of process Illinois 60607, Phone (312) 353–8450, FAX shall be effected consistent with Rule 4 of the 601.702. (312) 353–8455 2. Public reading room. The public reading Federal Rule of Civil Procedure, and directed rooms for the Internal Revenue Service are to the Commissioner of Internal Revenue at Denver—SAC the following address: Commissioner, maintained at the following location: 115 Inverness Drive, East, Suite 300, Internal Revenue Service, 1111 Constitution Englewood, CO 80112–5131, Phone (303) National Office Avenue NW., Washington, D.C. 20224. Attention: CC:EL:D. 784–6480, FAX (303) 784–6490 Mailing Address Detroit—SAC Freedom of Information Reading Room, P.O. Appendix C—United States Customs Service McNamara Federal Building, 477 Michigan Box 795, Ben Franklin Station, 1. In general. This appendix applies to the Avenue, Room 350, Detroit, Michigan Washington, DC 20044 United States Customs Service. 2. Public reading room. The public reading 48226–2568, Phone (313) 226–3166, FAX Walk-in Address room for the United States Customs Service (313) 226–6282 Room 1621, 1111 Constitution Avenue, NW., is maintained at the following location: El Paso—SAC Washington, D.C. United States Customs Service, 1300 Pennsylvania Avenue NW., Washington, DC 9400 Viscount Blvd., Suite 200, El Paso, Northeast Region 20229. Texas 79925, Phone (915) 540–5700, FAX Mailing Address 3. Requests for records. (915) 540–5754 a. Headquarters—Initial determinations Houston—SAC Freedom of Information Reading Room, P.O. under 31 CFR 1.5(h) as to whether to grant Box 5138, E:QMS:D, New York, NY 10163 requests for records will be made by the 4141 N. Sam Houston Pkwy, E., Houston, Walk-in Address appropriate Division Director at Customs Texas 77032, Phone (281) 985–0500, FAX Service Headquarters having custody of or (281) 985–0505 11th Floor, 110 W. 44th Street, New York, functional jurisdiction over the subject Los Angeles—SAC NY matter of the requested records. If the request Midstates Region relates to records maintained in an office 300 South Ferry St., Room 2037, Terminal which is not within a division, the initial Island, CA 90731, Phone (310) 514–6231, Mailing Address determination shall be made by the FAX (310) 514–6280 Freedom of Information Reading Room, Mail individual designated for that purpose by the Miami—SAC Code 7000 DAL, 1100 Commerce Street, Assistant Commissioner having Dallas, TX 75242 responsibility for that office. Requests may be 8075 NW 53rd Street, Scranton Building, mailed or delivered in person to: Freedom of Miami, Florida 33166, Phone (305) 597– Walk-in Address Information Act, Chief, Disclosure Law 6030, FAX (305) 597–6227 10th Floor, Rm. 10B37, 1100 Commerce Branch, U.S. Customs Service, 1300 New Orleans—SAC Street, Dallas, TX Pennsylvania Avenue, NW, Washington, DC 20229. 423 Canal Street, Room 207, New Orleans, Southeast Region b. Field Offices—Initial determinations LA 70130, Phone (504) 670–2416, FAX Mailing Address under 31 CFR 1.5(h) as to whether to grant (504) 589–2059 requests for records maintained by the Office 401 W. Peachtree Street, NW, Stop 601D, New York—SAC of Investigations will be made by the Special Room 868, Atlanta, GA 30365 Agent in Charge in whose office the records 6 World Trade Center, New York, New York Walk-in Address are maintained. Initial determinations of 10048–0945, Phone (212) 466–2900, FAX Same as mailing address records maintained in Customs Ports of Entry (212) 466–2903 as to whether or not to grant requests for Western Region records will be made by the Port Director of San Antonio—SAC the Customs Service Port having jurisdiction 10127 Morocco, Suite 180, San Antonio, Mailing Address over the Port of Entry in which the records Texas 78216, Phone (210) 229–4561, FAX 1301 Clay Street, Stop 800–S, Oakland, CA are maintained. Requests may be mailed or (210) 229–4582 94612 faxed to or delivered personally to the San Diego—SAC Walk-in Address respective Special Agents in Charge or Port Directors of the Customs Service Ports at the 185 West ‘‘F’’ Street, Suite 600, San Diego, 8th Floor, 1301 Clay Street, Oakland, CA following locations: CA 92101, Phone (619) 557–6850, FAX 3. Requests for records. Initial (619) 557–5109 Offices of Special Agents in Charge (SACS) determinations under 31 CFR 1.5(h) as to San Francisco—SAC whether to grant requests for records of the Atlanta—SAC 1700 Montgomery Street, Suite 445, San Internal Revenue Service, grant expedited 1691 Phoenix Blvd., Suite 250, Atlanta, processing, grant a fee waiver, or determine Georgia 30349, Phone (770) 994–2230, FAX Francisco, CA 94111, Phone (415) 705– requester category will be made by those (770) 994–2262 40701, FAX (415) 705–4065 officials specified in 26 CFR 601.702. San Juan—SAC 4. Administrative appeal of initial Baltimore—SAC # determination to deny records. Appellate 40 South Gay Street, 3rd Floor, Baltimore, 1, La Puntilla Street, Room 110, San Juan, determinations under 31 CFR 1.5(i) with Maryland 21202, Phone (410) 962–2620, PR 00901, Phone (787) 729–6975, FAX respect to records of the Internal Revenue FAX (410) 962–3469 (787) 729–6646 Service will be made by the Commissioner of Seattle—SAC Internal Revenue or the delegate of such Boston—SAC , officer. Appeals made by mail should be 10 Causeway Street, Room 722, Boston, MA 1000–2nd Avenue, Suite 2300, Seattle, addressed to: Freedom of Information 02222–1054, Phone (617) 565–7400, FAX Washington, 98104, Phone (206) 553–7531, Appeal, Commissioner of Internal Revenue (617) 565–7422 FAX (206) 553–0826 Service, c/o Ben Franklin Station, P. O. Box 929, Washington, D.C. 20044. Buffalo—SAC Tampa—SAC Appeals may be delivered personally to the 111 West Huron Street, 416, Burralo, New 2203 North Lois Avenue, Suite 600, Tampa, Assistant Chief Counsel (Disclosure York 14202, Phone (716) 551–4375, FAX Florida 33607, Phone (813) 348–1881, FAX Litigation) CC:EL:D, Office of the Chief (716) 551–4379 (813) 348–1871
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Tucson—SAC Providence: 49 Pavilion Avenue (202/482–6943) or personally delivered to the 555 East River Road, Tucson, Arizona 85704, Providence, RI 02905. Phone: (401) 941– United States Customs Service, 1300 Phone (520) 670–6026, FAX (520) 670– 6326; FAX: (401) 941–6628. Pennsylvania Avenue, NW., Washington, DC 6233 Denver: 4735 Oakland Street Denver, CO 20229. If possible, a copy of the initial letter 80239. Phone: (303) 361–0715; FAX: (303) of determination should be attached to the Customs Service Ports 361–0722. appeal. Anchorage: 605 West Fourth Avenue San Diego: 610 West Ash Street San Diego, 5. Delivery of process. Service of process Anchorage, AK 99501. Phone: (907) 271– CA 92188. Phone: (619) 557–6758; FAX: will be received by the Chief Counsel, United 2675; FAX: (907) 271–2684. (619) 557–5314. States Customs Service, 1300 Pennsylvania Minneapolis: 110 South Street Detroit: 477 Michigan Avenue Detroit, MI Avenue, NW., Washington, D.C. 20229. Minneapolis, MN 55401. Phone: (612) 348– 48226. Phone: (313) 226–3178; FAX: (313) 226–3179. Appendix D—United States Secret Service 1690; FAX : (612) 348–1630. San Francisco: 555 Battery Avenue San 1. In general. This appendix applies to the Baltimore: 200 St. Paul Place Baltimore, Francisco, CA 94111. Phone: (415) 744–7700; United States Secret Service. MD 21202. Phone: (410) 962–2666; FAX: FAX: (415) 744–7710. 2. Public reading room. The United States (410) 962–9335. Duluth: 515 West 1st Street Duluth, MN Secret Service will provide a room on an ad Mobile: 150 North Royal Street Mobile, AL 55802–1390. Phone: (218) 720–5201; FAX: hoc basis when necessary. Contact the 36602. Phone: (205) 441–5106; FAX: (205) (218) 720–5216. Disclosure Officer, Room 720, 1800 G Street, 441–6061. San Juan: #1 La Puntilla San Juan, PR NW, Washington, DC 20223 to make Blaine: 9901 Pacific Highway Blaine, WA 00901. Phone: (809) 729–6965; FAX: (809) appointments. 98230. Phone: (360) 332–5771; FAX: (360) 729–6978. 3. Requests for records. Initial 332–4701. El Paso: 9400 Viscount Boulevard El Paso, determinations under 31 CFR 1.5(h) as to New Orleans: 423 Canal Street New TX 79925. Phone: (915) 540–5800; FAX: whether to grant requests for records of the Orleans, LA 70130. Phone: (504) 589–6353; (915) 540–3011. United States Secret Service will be made by FAX: (504) 589–7305. Savannah: 1 East Bay Street Savannah, GA the Freedom of Information and Privacy Acts Boston: 10 Causeway Street Boston, MA 31401. Phone: (912) 652–4256; FAX: (912) Officer, United States Secret Service. 02222–1059. Phone: (617) 565–6147; FAX: 652–4435. Requests may be mailed or delivered in (617) 565–6137. Great Falls: 300 2nd Avenue South Great person to: Freedom of Information Act New York: 6 World Trade Center New Falls, MT 59403. Phone: (406) 453–7631; Request, FOIA and Privacy Acts Officer, U.S. York, NY 10048. Phone: (212) 466–4444; FAX: (406) 453–7069. Secret Service, Room 720, 1800 G Street, NW, FAX: (212) 455–2097. Seattle: 1000 2nd Avenue Seattle, WA Washington, D.C. 20223. Buffalo: 111 West Huron Street Buffalo, NY 98104–1049. Phone: (206) 553–0770; FAX: 4. Administrative appeal of initial 14202–22378. Phone: (716) 551–4373; FAX: (206) 553–2970. determination to deny records. Appellate (716) 551–5011. Honolulu: 335 Merchant Street Honolulu, determinations under 31 CFR 1.5(i) with # New York—JFK Area: Building 77 HI 96813. Phone: (808) 522–8060; FAX: (808) respect to records of the United States Secret Jamaica, NY 11430. Phone: (718) 553–1542; 522–8060. Service will be made by the Deputy Director, FAX: (718) 553–0077. St. Albans: P.O. Box 1490 St. Albans, VT United States Secret Service. Appeals should Champlain: 35 West Service Road Rts. 1 & 05478. Phone: (802) 524–7352; FAX: (802) be addressed to: Freedom of Information 9 South Champlain, NY 12919. Phone: (518) 527–1338. Appeal, Deputy Director, U.S. Secret Service, 298–8347; FAX: (518) 298–8314. Houston/Galveston: 1717 East Loop Room 800, 1800 G Street, NW, Washington, New York—NY/Newark Area: Hemisphere Houston, TX 77029 . Phone: (713) 985–6712; D.C. 20223. Center, Newark, NJ 07114. Phone: (201) 645– FAX: (713) 985–6705. 5. Delivery of process. Service of process 3760; FAX: (201) 645–6634. St. Louis: 4477 Woodson Road St. Louis, will be received by the United States Secret Charleston: 200 East Bay Street Charleston, MO 63134–3716. Phone: (314) 428–2662; Service Chief Counsel at the following SC 29401. Phone: (803) 727–4296; FAX : FAX: (314) 428–2889. address: Chief Counsel, U.S. Secret Service, (803) 727–4043. Laredo/Colombia: P.O. Box 3130 Laredo, Room 842, 1800 G Street, NW,Washington, Nogales: 9 North Grand Avenue Nogales, TX 78044. Phone: (210) 726–2267; FAX: D.C. 20223. AZ 85621. Phone: (520) 287–1410; FAX: (210) 726–2948. (520) 287–1421. Tacoma: 2202 Port of Tacoma Road, Appendix E—Bureau of Alcohol, Tobacco Charlotte: 1801–K Cross Beam Drive Tacoma, WA 98421. Phone: (206) 593–6336; and Firearms Charlotte, NC 28217. Phone: (704) 329–6101; FAX: (206) 593–6351. 1. In general. This appendix applies to the FAX: (704) 329–6103. Los Angeles: 300 South Ferry Street Bureau of Alcohol, Tobacco and Firearms. Norfolk: 200 Granby Street Norfolk, VA Terminal Island, CA 90731. Phone: (310) 2. Public reading room. The Bureau of 23510. Phone: (804) 441–3400; FAX: (804) 514–6001; FAX: (310) 514–6769. Alcohol, Tobacco and Firearms will make 441–6630. Tampa: 4430 East Adamo Drive Tampa, FL materials available for review on an ad hoc Charlotte/Amalie: Main Post OFC—Sugar 33605. Phone: (813) 228–2381; FAX: (813) basis when necessary. Contact the Chief, Estate St. Thomas, VI 00801. Phone: (809) 225–7309. Disclosure Division, Bureau of Alcohol, 774–2511; FAX: (809) 776–3489. Miami Airport: 6601 West 25th Street Tobacco, and Firearms, 650 Massachusetts Pembina: P.O. Box 610 Pembina, ND Miami, FL 33102–5280. Phone: (305) 869– Avenue, NW., Washington, DC 20226. 58271. Phone (701) 825–6201; FAX: (701) 2800; FAX: (305) 869–2822. 3. Requests for records. Initial 825–6473. Washington DC: P.O. Box 17423 determinations under 31 CFR 1.5(h) as to Chicago: 610 South Canal Street Chicago, Washington, DC 20041. Phone: (703) 318– whether to grant requests for records of the IL 60607. Phone: (312) 353–6100; FAX: (312) 5900; FAX: (703) 318–6706. Bureau of Alcohol, Tobacco, and Firearms 353–2337. Milwaukee: P.O. Box 37260 Milwaukee, WI will be made by the Chief, Disclosure Philadelphia: 2nd & Chestnut Streets 53237–0260. Phone: (414) 571–2860; FAX: Division, Office of Assistant Director (Liaison Philadelphia, PA 19106. Phone: (215) 597– (414) 762–0253. and Public Information) or the delegate of 4605; FAX: (215) 597–2103. c. All such requests should be such officer. Requests may be mailed or Cleveland: 56 Erieview Plaza Cleveland, conspicuously labeled on the face of the delivered in person to: Freedom of OH 44114. Phone: (216) 891–3804; FAX: envelope, ‘‘Freedom of Information Act Information Act Request, Chief, Disclosure (216) 891–3836. Request’’ or ‘‘FOIA Request’’. Division, Bureau of Alcohol, Tobacco, and Portland, Oregon: 511 NW Broadway 4. Administrative appeal of initial Firearms, 650 Massachusetts Avenue, NW., Portland, OR 97209. Phone: (503) 326–2865; determination to deny records. Appellate Washington, DC 20226. FAX: (503) 326–3511. determinations under 31 CFR 1.5(i) will be 4. Administrative appeal of initial Dallas/Fort Worth: P.O. Box 61905 Dallas/ made by the Assistant Commissioner of determination to deny records. Appellate Fort Worth Airport, TX 75261. Phone: (972) Customs (Office of Regulations and Rulings), determinations under 31 CFR 1.5(i) with 574–2170; FAX: (972) 574-4818. and all such appeals should be mailed, faxed respect to records of the Bureau of Alcohol,
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Tobacco and Firearms will be made by the determinations under 31 CFR 1.5(i) will be Department of the Treasury, 999 E Street, Assistant Director, Liaison and Public made by the Commissioner, Financial N.W., Room 553, Washington, D.C. 20239– Information, Bureau of Alcohol, Tobacco, Management Service. Appeals may be mailed 0001. and Firearms or the delegate of such officer. to: Freedom of Information Appeal (FOIA), 4. Administrative appeal of initial Appeals may be mailed or delivered in Commissioner, Financial Management determination to deny records. Appellate person to: Freedom of Information Appeal, Service, 401 14th Street, SW., Washington, determinations under 31 CFR 1.5(i) with Assistant Director, Liaison and Public D.C. 20227. respect to records of the Bureau of the Public Information, Bureau of Alcohol, Tobacco, Appeals may be delivered personally to the Debt will be made by the Commissioner of and Firearms, 650 Massachusetts Avenue, Office of the Commissioner, Financial the Public Debt. Appeals may be sent to: NW., Washington, DC 20226. Management Service, 401 14th Street, SW., Freedom of Information Appeal, 5. Delivery of process. Service of process Washington, D.C. Commissioner of the Public Debt, will be received by the Director of the Bureau 5. Delivery of process. Service of process Department of the Treasury, 999 E Street, of Alcohol, Tobacco, and Firearms at the will be received by the Commissioner, NW., Room 553, Washington, D.C. 20239– following location: Bureau of Alcohol, Financial Management Service, and shall be 0001. Tobacco, and Firearms, 650 Massachusetts delivered to: Commissioner, Financial 5. Delivery of process. Service of process Avenue, NW., Washington, DC 20226, Management Service, Department of the will be received by the Chief Counsel, Bureau Attention: Chief Counsel. Treasury, 401 14th Street, SW., Washington, of the Public Debt, or the delegate of such D.C. 20227. officer, and shall be delivered to the Appendix F—Bureau of Engraving and following location: Chief Counsel’s Office, Printing Appendix H—United States Mint Bureau of the Public Debt, Room 503, 999 E 1. In general. This appendix applies to the 1. In general. This appendix applies to the Street, NW., Washington, D.C. 20239–0001, Bureau of Engraving and Printing. United States Mint. or Bureau of the Public Debt, Hintgen 2. Public reading room. Contact the 2. Public reading room. The U.S. Mint will Building, Room 119, Parkersburg, WV Disclosure Officer, 14th and C Streets, SW., provide a room on an ad hoc basis when 26106–1328. Washington, DC 20228, to make an necessary. Contact the Freedom of appointment. Appendix J—Office of the Comptroller of the Information/Privacy Act Officer, United 3. Requests for records. Initial Currency States Mint, Judiciary Square Building, 7th determinations under 31 CFR 1.5(h) as to 1. In general. This appendix applies to the floor, 633 3rd Street, N.W., Washington, D.C. whether to grant requests for records of the Office of the Comptroller of the Currency. 20220. Bureau of Engraving and Printing will be 2. Public reading room. The Office of the 3. Requests for records. Initial made by the Assistant to the Director. Comptroller of the Currency will make determinations under 31 CFR 1.5(h) as to Requests may be mailed or delivered in materials available through its Public whether to grant requests for records of the person to: Freedom of Information Act Information Room at 250 E Street, SW., United States Mint will be made by the Request, Disclosure Officer, (Assistant to the Washington, D.C. 20219. Director), Room 112–M, Bureau of Engraving Freedom of Information/Privacy Act Officer, 3. Requests for records. Initial and Printing, Washington, D.C. 20228. United States Mint. Requests may be mailed determinations under 31 CFR 1.5(h) as to 4. Administrative appeal of initial or delivered in person to: Freedom of whether to grant requests for records of the determination to deny records. Appellate Information Act Request, Freedom of Office of the Comptroller of the Currency will determinations under 31 CFR 1.5(i) with Information/Privacy Act Officer, United be made by the Disclosure Officer or the respect to records of the Bureau of Engraving States Mint, Judiciary Square Building, 7th official so designated. Requests may be and Printing will be made by the Director of Floor, 633 3rd Street, NW, Washington, D.C. mailed or delivered in person to: Freedom of the Bureau of Engraving and Printing or the 20220. Information Act Request, Disclosure Officer, delegate of the Director. Appeals may be 4. Administrative appeal of initial Communications Division, 3rd Floor, mailed or delivered in person to: Freedom of determination to deny records. Appellate Comptroller of the Currency, 250 E Street, Information Appeal, Director, Bureau of determinations under 31 CFR 1.5(i) with SW., Washington, D.C. 20219. Engraving and Printing, 14th and C Streets, respect to records of the United States Mint 4. Administrative appeal of initial S.W., Room 119–M, Washington, D.C. 20228. will be made by the Director of the Mint. determination to deny records. Appellate 5. Delivery of process. Service of process Appeals made by mail should be addressed determinations under 31 CFR 1.5(i) with will be received by the Chief Counsel or the to: Freedom of Information Appeal, Director, respect to records of the Office of the delegate of such officer at the following United States Mint, Judiciary Square Comptroller of the Currency will be made by location: Chief Counsel, Bureau of Engraving Building, 7th Floor, 633 3rd Street, NW, the Chief Counsel or delegates of such and Printing, 14th and C Streets, SW, Room Washington, D.C. 20220. person. Appeals made by mail should be 104–24 M, Washington, D.C. 20228. 5. Delivery of process. Service of process addressed to: Communications Division, will be received by the Director of the Mint Comptroller of the Currency, 250 E Street, Appendix G—Financial Management and shall be delivered to: Chief Counsel, SW., Washington, D.C. 20219. Service United States Mint, Judiciary Square Appeals may be delivered personally to the 1. In general. This appendix applies to the Building, 7th Floor, 633 3rd Street, NW, Communications Division, Comptroller of the Financial Management Service. Washington, D.C. 20220. Currency, 250 E Street, SW, Washington, D.C. 2. Public reading room. The public reading Appendix I—Bureau of the Public Debt 5. Delivery of process. Service of process room for the Financial Management Service will be received by the Director, Litigation is maintained at the following location: 1. In general. This appendix applies to the Division, Comptroller of the Currency, and Library, Main Treasury Building, 1500 Bureau of the Public Debt. shall be delivered to such officer at the Pennsylvania Avenue NW, Washington, D.C. 2. Public reading room. The public reading following location: Litigation Division, 20220. For building security purposes, room for the Bureau of the Public Debt is Comptroller of the Currency, 250 E Street, visitors are required to make an appointment maintained at the following location: Library, SW., Washington, D.C. 20219. by calling 202/622–0990. Main Treasury Building, 1500 Pennsylvania 3. Requests for records. Initial Avenue, NW, Washington, D.C. 20220. For Appendix K—Federal Law Enforcement determinations under 31 CFR 1.5(h) whether building security purposes, visitors are Training Center to grant requests for records will be made by required to make an appointment by calling 1. In general. This apppendix applies to the Disclosure Officer, Financial 202/622–0990. the Federal Law Enforcement Training Management Service. Requests may be 3. Requests for records. Initial Center. mailed or delivered in person to: Freedom of determinations under 31 CFR 1.5(h) as to 2. Public reading room. The public reading Information Request, Disclosure Officer, whether to grant requests for records will be room for the Federal Law Enforcement Financial Management Service, 401 14th made by the Disclosure Officer of the Bureau Training Center is maintained at the Street, SW., Washington, D.C. 20227. of the Public Debt. Requests may be sent to: following location: Library, Building 262, 4. Administrative appeal of initial Freedom of Information Act Request, Federal Law Enforcement Training Center, determination to deny records. Appellate Disclosure Officer, Bureau of the Public Debt, Glynco, GA 31524.
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3. Requests for records. Initial Counsel, Federal Law Enforcement Training Requests for records may be delivered in determinations under 31 CFR 1.5(h) as to Center, Department of the Treasury, Building person to: Public Reference Room, Office of whether to grant requests for records will be 94, Glynco, GA 31524. Thrift Supervision 1700 G Street, NW., made by the Chief, Management Analysis Appendix L—Office of Thrift Supervision Washington, DC. Division, Federal Law Enforcement Training 4. Administrative appeal of initial Center. Requests made by mail should be 1. In general. This appendix applies to the determination to deny records. Appellate addressed to: Freedom of Information Act Office of Thrift Supervision (OTS). OTS determinations under 31 CFR 1.5(i) with Request, Freedom of Information Act Officer, regulatory handbooks and other publications respect to records of the Office of Thrift Federal Law Enforcement Training Center, are available for sale. Information may be Supervision will be made by the Director, obtained by calling the OTS Order Department of the Treasury, Building 94, Records Management & Information Policy, Department at 301/645–6264. OTS regulatory Glynco, GA 31524. Office of Thrift Supervision, or their handbooks and other publications may be Requests may be delivered personally to purchased by forwarding a request, along designee. Appeals made by mail should be the Management Analysis Division, Federal with a check to: OTS Order Department, P.O. addressed to: Freedom of Information Law Enforcement Training Center, Building Box 753, Waldorf, MD 20604 or by calling Appeal, Director, Records Management & 94, Glynco, GA. 301/645–6264 to pay by VISA or Information Policy Division, Office of Thrift 4. Administrative appeal of initial MASTERCARD. Supervision, 1700 G Street, NW., determination to deny records. Appellate 2. Public reading room. The public reading Washington, DC 20552. determinations under 31 CFR 1.5(i) with room for the Office of Thrift Supervision is Appeals may be delivered in person to: respect to records of the consolidated Federal maintained at the following location: 1700 G Public Reference Room, Office of Thrift Law Enforcement Training Center will be Street, NW., Washington, DC 20552. Supervision 1700 G Street, NW., Washington, made by the Director, Federal Law 3. Requests for records. Initial DC. Enforcement Training Center. Appeals may determinations under 31 CFR 1.5(h) as to 5. Delivery of process. Service of process be mailed to: Freedom of Information whether to grant requests for records of the will be received by the Corporate Secretary Appeal, Federal Law Enforcement Training Office of Thrift Supervision will be made by of the Office of Thrift Supervision or their Center, Department of the Treasury, Building the Director, OTS Dissemination Branch. designee and shall be delivered to the 94, Glynco, GA 31524. Requests for records should be addressed to: following location: Corporate Secretary, 5. Delivery of process. Service of process Freedom of Information Request, Manager, Office of Thrift Supervision, 1700 G Street, will be received by the Legal Counsel of the Dissemination Branch, Records Management NW., Washington, DC 20552. Federal Law Enforcement Training Center, or & Information Policy Division, Office of his delegate, and shall be delivered to such Thrift Supervision, 1700 G Street, NW., [FR Doc. 99–11126 Filed 5–5–99; 8:45 am] officer at the following location: Legal Washington, DC 20552. BILLING CODE 4810±25±P
VerDate 26-APR-99 12:08 May 05, 1999 Jkt 183247 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.032 pfrm01 PsN: 06MYP2 eDt 6AR9 21 a 5 99Jt134 O000Fm001Ft41 ft41 :F\MA6Y.3 fm1PsN:06MYP3 pfrm01 E:\FR\FM\A06MY2.034 Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt183247 12:11May05, 1999 VerDate 26-APR-99 federal register May 6,1999 Thursday Rule Smoking/No SmokingAreas;Proposed 28 CFRPart551 Bureau ofPrisons Justice Department of Part III 24467 24468 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules
DEPARTMENT OF JUSTICE smoking areas for general use at the smoke detectors are necessary because a institution. total ban on indoor smoking simplifies Bureau of Prisons The commenters, all current inmates enforcement. except one, believe that prohibiting One commenter expressed concern 28 CFR Part 551 smoking within Bureau facilities will that tobacco use not be restricted for have little impact on reducing smoking religious purposes. The supplemental [BOP±1084±P] and improving the air quality. notice includes a revision to clarify that RIN 1120±AA79 Specifically, four commenters stressed smoking as part of an authorized that the current restrictions on smoking religious activity is to be allowed. Smoking/No Smoking Areas are rarely enforced. One commenter One commenter addressed the lack of alleging that most staff are smokers health services support to those wishing AGENCY: Bureau of Prisons, Justice. believes the proposed regulations are to quit smoking. He feels health services ACTION: Supplemental notice of not clear whether staff must also adhere should offer nicotine patches and proposed rule. to the ban on indoor smoking. This nicorette gum. The Bureau understands commenter included statements from that quitting smoking, under the best of SUMMARY: In this document, the Bureau four individuals concurring with the circumstances, is a difficult task. That is of Prisons is proposing a supplemental above-noted conclusions. In response, why the Bureau will offer smoking notice of proposed rule pertaining to the Bureau notes that staff are cessations programs and nicotine smoking/no smoking areas in Bureau of responsible for ensuring that Bureau patches will be available at inmate Prisons facilities. The supplemental rules are followed. Maintaining a expense. These programs are available notice retains the requirement to have a smoke-free environment necessarily through normal health care programs designated area for smoking as part of means that staff will be bound by the offered to inmates. an authorized religious activity. The restrictions. The Bureau is committed to Four commenters are against supplemental notice makes clear that investigate reported violations of the eliminating the Warden’s authority to the Warden may designate only outdoor smoking policy whether by staff or designate indoor smoking areas that smoking areas for general use and that inmates. As a further instance of the provide smokers protection from these areas must be clearly identified. seriousness of the Bureau’s adverse weather. They also expressed The supplemental notice also requires commitment, the Bureau published a concern that the proposed rule does not the concurrence of the Regional Director proposed amendment to its discipline provide for erection of a protective if the Warden chooses not to designate policy which elevated violations of the environment from adverse weather. The smoking areas for general use. Once this smoking policy from a low category Bureau’s primary goal is to protect occurs, the Regional Director’s prohibited act to a moderate category inmates and staff from the hazards of concurrence is also required if the prohibited act on February 25, 1999 (64 tobacco smoke. The proposed Warden later chooses to designate FR 9432). regulations do not preclude the Warden smoking areas for general use at the As a practical alternative, three from making some provision to institution. The notice is intended to commenters support non-smoking units accommodate outdoor smokers in promote a clean air environment and to instead of a total prohibition against adverse weather conditions. protect the health and safety of staff and indoor smoking. The Bureau has an Interested persons may participate in inmates. obligation to its employees and to the this proposed rulemaking by submitting DATES: Comments due by July 6, 1999. inmates in its custody to provide the data, views, or arguments in writing to ADDRESSES: Rules Unit, Office of safest and healthiest environment the Rules Unit, Office of General General Counsel, Bureau of Prisons, possible. That is why the Bureau is Counsel, Bureau of Prisons, 320 First HOLC Room 754, 320 First Street, NW., proposing that the Warden be permitted, Street, NW., HOLC Room 754, Washington, DC 20534. with the Regional Director’s Washington, DC 20534. Comments concurrence, to choose not to designate FOR FURTHER INFORMATION CONTACT: received during the comment period Roy smoking areas for general use, or in the Nanovic, Office of General Counsel, will be considered before final action is alternative, restricting smoking to only taken. Comments received after the Bureau of Prisons, phone (202) 514– visibly designated outdoor locations 6655. expiration of the comment period will with the exception that an indoor be considered to the extent practicable. SUPPLEMENTARY INFORMATION: The smoking area may be designated to be All comments received remain on file Bureau of Prisons is proposing a used exclusively for authorized for public inspection at the above supplemental notice of its proposed rule religious activities. Dividing the living address. The proposed rule may be on smoking (28 CFR part 551, subpart units between smoking and non changed in light of the comments N). The proposed rule previously smoking will not eliminate the health received. No oral hearings are published on this subject on November risks associated with passive inhalation contemplated. 25, 1998 (63 FR 65502) eliminated of second-hand smoke. Two indoor smoking in all institutions commenters suggest that all tobacco Executive Order 12866 except when smoking is part of an products be banned and no tobacco This rule falls within a category of authorized religious activity. The products be sold in federal prisons. The actions that the Office of Management Bureau received comment from nine supplemental notice will assist the and Budget (OMB) has determined not respondents. As part of the Bureau’s Bureau in evaluating the merit of these to constitute ‘‘significant regulatory response to comment, this supplemental comments. The commissary at smoke- actions’’ under section 3(f) of Executive notice of proposed rule making allows free institutions will not offer tobacco Order 12866 and, accordingly, it was the Warden, with the Regional products for purchase. not reviewed by OMB. Director’s concurrence, to choose not to One commenter suggests installing designate any smoking areas for general smoke detectors in all cells. The Bureau Executive Order 12612 use. Once this occurs, the Regional is in compliance with fire safety codes This regulation will not have Director’s concurrence is required if the on smoke detectors in its housing units. substantial direct effects on the States, Warden later chooses to designate The Bureau does not believe additional on the relationship between the national
VerDate 26-APR-99 12:11 May 05, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.034 pfrm01 PsN: 06MYP3 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24469 government and the States, or on effects on competition, employment, Subpart NÐSmoking/No Smoking distribution of power and investment, productivity, innovation, or Areas responsibilities among the various on the ability of United States-based levels of government. Therefore, in companies to compete with foreign- Sec. accordance with Executive Order 12612, based companies in domestic and 551.160 Purpose and scope. it is determined that this rule does not export markets. 551.161 Definitions. 551.162 Designated smoking areas. have sufficient federalism implications Plain Language Instructions to warrant the preparation of a Federalism Assessment. We try to write clearly. If you can Subpart NÐSmoking/No Smoking suggest how to improve the clarity of Areas Regulatory Flexibility Act these regulations, call or write Roy § 551.160 Purpose and scope. The Director of the Bureau of Prisons, Nanovic, Rules Unit, Office of General in accordance with the Regulatory Counsel, Bureau of Prisons, 320 First To promote a clean air environment Flexibility Act (5 U.S.C. 605(b)), has St., Washington, DC 20534; telephone and to protect the health and safety of reviewed this regulation and by (202) 514–6655. staff and inmates, the Bureau of Prisons approving it certifies that this regulation List of Subjects in 28 CFR Part 551 prohibits smoking in its institutions will not have a significant economic unless the Warden authorizes smoking impact upon a substantial number of Prisoners. in a designated smoking area. small entities for the following reasons: Kathleen Hawk Sawyer, This rule pertains to the correctional Director, Bureau of Prisons. § 551.161 Definitions. management of offenders committed to Accordingly, pursuant to the For purpose of this subpart, smoking the custody of the Attorney General or rulemaking authority vested in the is defined as carrying or inhaling a the Director of the Bureau of Prisons, Attorney General in 5 U.S.C. 552(a) and lighted cigar, cigarette, pipe, or other and its economic impact is limited to delegated to the Director, Bureau of lighted tobacco products. the Bureau’s appropriated funds. Prisons in 28 CFR 0.96(p), part 551 in subchapter C of 28 CFR, chapter V is § 551.162 Designated smoking areas. Unfunded Mandates Reform Act of proposed to be amended as set forth (a) The Warden must designate a 1995 below. smoking area for use in instances where This rule will not result in the SUBCHAPTER C—INSTITUTIONAL smoking is to be part of an authorized expenditure by State, local and tribal MANAGEMENT governments, in the aggregate, or by the religious activity. private sector, of $100,000,000 or more PART 551ÐMISCELLANEOUS (b)(1) The Warden may designate only in any one year, and it will not outdoor smoking areas for general use significantly or uniquely affect small 1. The authority citation for 28 CFR (that is, for smoking which is not part governments. Therefore, no actions were part 551 is revised to read as follows: of an authorized religious activity). deemed necessary under the provisions Authority: 5 U.S.C. 301; 18 U.S.C. 1512, These smoking areas must be clearly of the Unfunded Mandates Reform Act 3621, 3622, 3624, 4001, 4005, 4042, 4081, identified. of 1995. 4082 (Repealed in part as to offenses committed on or after November 1, 1987), (2) The Warden, with the Regional Small Business Regulatory Enforcement 4161–4166 (Repealed as to offenses Director’s concurrence, may choose not Fairness Act of 1996 committed on or after November 1, 1987), to designate smoking areas for general 5006–5024 (Repealed October 12, 1984 as to use. Once this occurs, the Regional This rule is not a major rule as offenses committed after that date), 5039; 28 Director’s concurrence is required if the defined by § 804 of the Small Business U.S.C. 509, 510; Pub. L. 99–500 (sec. 209); 28 Warden later chooses to designate Regulatory Enforcement Fairness Act of CFR 0.95–0.99; Attorney General’s May 1, 1995 Guidelines for Victim and Witness smoking areas for general use at the 1996. This rule will not result in an institution. annual effect on the economy of Assistance. $100,000,000 or more; a major increase 2. Subpart N is revised to read as [FR Doc. 99–11332 Filed 5–5–99; 8:45 am] in costs or prices; or significant adverse follows: BILLING CODE 4410±05±P
VerDate 26-APR-99 12:11 May 05, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.036 pfrm01 PsN: 06MYP3 eDt 6AR9 21 a 5 99Jt134 O000Fm001Ft41 ft41 :F\MA6Y.3 fm1PsN:06MYP4 pfrm01 E:\FR\FM\A06MY2.038 Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt183247 12:16May05, 1999 VerDate 26-APR-99 federal register May 6,1999 Thursday Proposed Rule Award FeeDeterminations(Burnside-Ott); Federal AcquisitionRegulation;Review of 48 CFRParts16,48,and52 Space Administration National Aeronauticsand Administration General Services Department ofDefense Part IV 24471 24472 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules
DEPARTMENT OF DEFENSE (Fed. Cir. 1997) and of the United States Dated: April 30, 1999. Court of Federal Claims in Rig Masters, Edward C. Loeb, GENERAL SERVICES Inc. v. The United States, 1998 WL Director, Federal Acquisition Policy Division. ADMINISTRATION 835097 (Fed. Cl.). The rulings are that Therefore, it is proposed that 48 CFR the Contract Disputes Act applies to all parts 16, 48, and 52 be amended as set NATIONAL AERONAUTICS AND disputes arising under Government forth below: SPACE ADMINISTRATION contracts unless a more specific statute 1. The authority citation for 48 CFR provides for remedies arising from a parts 16, 48, and 52 continues to read 48 CFR Parts 16, 48, and 52 contract dispute. FAR 16.405–2(a) is as follows: amended by deleting the statement that [FAR Case 98±017] Authority: 40 U.S.C. 486(c); 10 U.S.C. award-fee determinations are not subject chapter 137; and 42 U.S.C. 2473(c). RIN 9000±AI35 to the disputes clause of the contract and inserting a statement that the PART 16ÐTYPES OF CONTRACTS Federal Acquisition Regulation; determination and the methodology for 2. Section 16.405–2 is amended by Review of Award Fee Determinations determining the award fee are unilateral revising the last sentence of paragraph (Burnside-Ott) decisions made solely at the discretion of the Government. FAR 16.406 is (a) to read as follows: AGENCIES: Department of Defense (DoD), amended to conform with the newly 16.405±2 Cost-plus-award-fee contracts. General Services Administration (GSA), revised 16.405–2(a). FAR part 48 is (a) * * * This determination and the and National Aeronautics and Space amended to remove references to the Administration (NASA). methodology for determining the award Contract Disputes Act and state that fee are unilateral decisions made solely ACTION: Proposed rule. certain unilateral decisions are made at the discretion of the Government. solely at the discretion of the SUMMARY: The Civilian Agency * * * * * Government. The clauses at 52.248–1 3. Section 16.406 is amended by Acquisition Council and the Defense and 52.248–3 are amended to conform Acquisition Regulations Council are revising paragraph (e)(3) to read as with the newly revised part 48. The follows: proposing to amend the Federal clauses at 52.219–10, 52.219–26 and Acquisition Regulation (FAR). The 52.226–1 are amended to remove 16.406 Contract clauses. amendment implements rulings of the exemptions to the Contract Disputes * * * * * United States Court of Appeals and the Act. (e) * * * United States Court of Federal Claims. This regulatory action was not subject (3) Expressly provides that the award The rulings are that the Contract to Office of Management and Budget amount and the award-fee Disputes Act applies to all disputes review under Executive Order 12866, determination methodology are arising under Government contracts dated September 30, 1993, and is not a unilateral decisions made solely at the unless a more specific statute provides major rule under 5 U.S.C. 804. discretion of the Government. for other remedies arising from a contract dispute. B. Regulatory Flexibility Act PART 48ÐVALUE ENGINEERING DATES: Comments should be submitted This proposed rule is not expected to 4. Section 48.103 is amended by on or before July 6, 1999 to be have a significant economic impact on revising the introductory text of considered in the formulation of a final a substantial number of small entities paragraph (c) to read as follows: rule. within the meaning of the Regulatory ADDRESSES: Interested parties should Flexibility Act, 5 U.S.C. 601, et seq. 48.103 Processing value engineering submit written comments to: General because the rule implements court change proposals. Services Administration FAR Secretariat rulings relating to a statute that has been * * * * * (MVR), Attn: Laurie Duarte 1800 F in effect since 1979. The proposed rule (c) The following Government Street, NW, Room 4035, Washington, retains the government’s unilateral decisions are unilateral decisions made DC 20405. E-mail comments submitted decision authority in these matters. solely at the discretion of the over Internet should be addressed to: Therefore, we do not believe that the Government: farcase.98–[email protected]. Please cite FAR proposed rule will have an impact on * * * * * case 98–017 in all correspondence small entities. Comments are invited related to this case. from small businesses and other PART 52ÐSOLICITATION PROVISIONS interested parties. Comments from small AND CONTACT CLAUSES FOR FURTHER INFORMATION CONTACT: The entities concerning the affected FAR FAR Secretariat, Room 4035, GS subparts also will be considered in 5. Section 52.219–10 is amended by Building, Washington, DC 20405, (202) accordance with 5 U.S.C. 601, et seq. revising the date of the clause and the 501–4755, for information pertaining to (FAR Case 98–017), in correspondence last sentence of paragraph (b) to read as status or publication schedules. For follows: clarification of content, contact Mr. C. Paperwork Reduction Act Ralph DeStefano, Procurement Analyst, 52.219±10 Incentive Subcontracting The Paperwork Reduction Act does Program. at (202) 501–1758. Please cite FAR case not apply because the changes to the * * * * * 98–017. FAR do not impose information SUPPLEMENTARY INFORMATION: collection requirements that require the Incentive Subcontracting Program (Date) A. Background approval of the Office of Management * * * * * and Budget under 44 U.S.C. 3501, et (b) * * * Determinations under this This proposed rule amends the FAR seq. paragraph are unilateral decisions made to implement the rulings of the United solely at the discretion of the Government. States Court of Appeals in Burnside-Ott List of Subjects in 48 CFR Parts 16, 48, * * * * * Aviation Training Center v. Dalton, and 52 6. Section 52.219–26 is amended by Secretary of the Navy, 107 F.3d 854 Government procurement. revising the date of the clause and the
VerDate 26-APR-99 12:16 May 05, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.038 pfrm01 PsN: 06MYP4 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24473 last sentence of paragraph (b) to read as 8. Section 52.248–1 is amended by (a) * * * The decision on which rate follows: revising the date of the clause; by applies is a unilateral decision made solely revising the last sentences in paragraphs at the discretion of the Government. 52.219±26 Small Disadvantaged Business (e)(3) and (j), by revising the date of * * * * * Participation ProgramÐIncentive 9. Section 52.248–3 is amended by Subcontracting. Alternate II and inserting a sentence at revising the date of the clause and the * * * * * the end of paragraph (a) to read as follows: last sentences in paragraphs (e)(3) and Small Disadvantaged Business Participation (g) to read as follows: Program—Incentive Subcontracting (Date) 52.248±1 Value Engineering. 52.248±3 Value EngineeringÐ * * * * * * * * * * Construction. (b) * * * Determinations under this paragraph are unilateral decisions made Value Engineering (Date) * * * * * solely at the discretion of the Government. * * * * * Value Engineering—Construction (Date) * * * * * (e) * * * * * * * * 7. Section 52.226–1 is amended by (3) * * * The decision to accept or reject (e) * * * revising the date of the clause and all or part of any VECP is a unilateral (3) * * * The decision to accept or reject removing the last sentence in paragraph decision made solely at the discretion of the all or part of any VECP is a unilateral (d). Contracting Officer. decision made solely at the discretion of the * * * * * Contracting Officer. 52.226±1 Utilization of Indian * * * * * Organizations and Indian-Owned Economic (j) * * * The Contracting Officer shall be (g) * * * The Contracting Officer shall be Enterprises. the sole determiner of the amount of collateral savings. the sole determiner of the amount of * * * * * collateral savings. * * * * * Utilization of Indian Organizations and * * * * * Alternate II (Date) *** Indian-Owned Economic Enterprises (Date) [FR Doc. 99–11324 Filed 5–5–99; 8:45 am] * * * * * BILLING CODE 6820±EP±P
VerDate 26-APR-99 12:16 May 05, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.039 pfrm01 PsN: 06MYP4 eDt 6AR9 23 a 5 99Jt134 O000Fm001Ft41 ft41 :F\MA6Y.0 fm1PsN:06MYR2 pfrm01 E:\FR\FM\A06MY0.001 Sfmt4717 Fmt4717 Frm00001 PO00000 Jkt183247 12:32May05, 1999 VerDate 26-APR-99 federal register May 6,1999 Thursday Grants forOff-farm Housing; Notice and Section516Farm LaborHousing Section 514FarmLaborHousingLoans Notice ofFundsAvailability(NOFA)for Rule Housing (LH)LoansandGrants;Final Processing RequestsforFarmLabor 7 CFRParts1940and1944 Farm ServiceAgency Rural UtilitiesService Rural Business-CooperativeService Rural HousingService Agriculture Department of Part V 24475 24476 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations
DEPARTMENT OF AGRICULTURE of 44 U.S.C. chapter 35 and have been National Performance Review assigned OMB control number 0575- This regulatory action is being taken Rural Housing Service 0045, in accordance with the Paperwork in part as a result of the National Reduction Act of 1995. Under the Rural Business-Cooperative Service Performance Review program to Paperwork Reduction Act of 1995, no eliminate unnecessary regulations and Rural Utilities Service persons are required to respond to a improve those that remain in force. collection of information unless it Farm Service Agency displays a valid OMB number. The valid Programs Affected OMB control number assigned to the 7 CFR Parts 1940 and 1944 The affected program is listed in the collection of information in these final Catalog of Federal Domestic Assistance RIN 0575±AC19 regulations is displayed at the end of the under Number 10.405, Farm Labor affected section of the regulation. This Housing Loans and Grants. Processing Requests for Farm Labor rule does not impose any additional Housing (LH) Loans and Grants burden on the public. Intergovernmental Consultation The new competitive application For the reasons set forth in the Final AGENCIES: Rural Housing Service, Rural process should increase the number of Business-Cooperative Service, Rural Rule related Notice to 7 CFR part 3015, applications each year, and only those subpart V, this program is subject to Utilities Service, and Farm Service applicants selected for further Executive Order 12372 which requires Agency, USDA. processing for funding within the fiscal intergovernmental consultation with ACTION: Final rule. year will need to submit a full State and local officials. RHS has SUMMARY: The Rural Housing Service application. The net effect is no new conducted intergovernmental (RHS), formerly Rural Housing and information collection requirements consultation in the manner delineated Community Development Service from those approved by OMB. in RD Instruction 1940–J. (RHCDS), a successor Agency to the Civil Justice Reform Environmental Impact Statement Farmers Home Administration (FmHA), This rule has been reviewed under This document has been reviewed in amends its regulations for the Farm Executive Order 12988, Civil Justice accordance with 7 CFR part 1940, Labor Housing (LH) program. This Reform. In accordance with this rule: (1) subpart G, ‘‘Environmental Program.’’ It action is taken to implement an annual All state and local laws and regulations is the determination of RHS that this competitive funding cycle for off-farm that are in conflict with this rule will be action does not constitute a major proposals that will be announced preempted; (2) except as specifically Federal action significantly affecting the elsewhere in this Federal Register. The provided, no retroactive effect will be quality of the human environment and intended outcome is to improve the given to this rule; and (3) administrative in accordance with the National effectiveness and efficiency of the proceedings in accordance with 7 CFR Environmental Policy Act of 1969, application process and enable the part 11 must be exhausted before Public Law 91–190, an Environmental Agency to process applications in a bringing suit in court challenging action Impact Statement is not required. more efficient and timely manner. This taken under this rule. rule also implements the provision of Regulatory Flexibility Act Public Law 105–276, enacted October Unfunded Mandates Reform Act This rule has been reviewed with 21, 1998, that permits as an eligible LH Title II of the Unfunded Mandates regard to the requirements of the borrower entity a limited partnership Reform Act of 1995 (UMRA), establishes Regulatory Flexibility Act (5 U.S.C. with a nonprofit general partner. requirements for Federal agencies to 601–612). The undersigned has EFFECTIVE DATE: June 7, 1999. assess the effects of their regulatory determined and certified by signature of FOR FURTHER INFORMATION CONTACT: actions on State, local, and tribal this document that this rule will not Linda Armour, Senior Loan Specialist, governments and the private sector. have a significant economic impact on Multi-Family Housing Processing Under section 202 of the UMRA, RHS a substantial number of small entities Division, Rural Housing Service, U.S. generally must prepare a written since this rulemaking action does not Department of Agriculture, Room statement, including a cost-benefit involve a new or expanded program nor 5349—South Building, Stop 0781, 1400 analysis, for proposed and final rules does it require any more action on the Independence Avenue, SW, with ‘‘Federal mandates’’ that may part of a small business than required of Washington, DC 20250–0781, telephone result in expenditures to State, local, or a large entity. (202) 720–1604 (voice) or (800) 877– tribal governments, in the aggregate, or Background 8339 (TDD-Federal Information Relay to the private sector, of $100 million or Service). more in any 1 year. When such a The farm labor housing program has SUPPLEMENTARY INFORMATION: statement is needed for a rule, section two authorities in Title V of the Housing 205 of the UMRA generally requires Act of 1949: section 514 (42 U.S.C. Classification RHS to identify and consider a 1484) for loans and section 516 (42 This rule has been determined to be reasonable number of regulatory U.S.C. 1486) for grants. As provided by not significant for purposes of Executive alternatives and adopt the least costly, the authorizing statute, section 514 Order 12866 and therefore has not been more cost-effective or least burdensome loans are subsidized to borrowers to a reviewed by the Office of Management alternative that achieves the objectives one percent interest rate. The program and Budget. of the rule. also has tenant subsidies (rental This rule contains no Federal assistance, or RA) available through Paperwork Reduction Act mandates (under the regulatory section 521 (42 U.S.C. 1490a). Both ‘‘on- The information collection provisions of title II of the UMRA) for farm’’ and ‘‘off-farm’’ housing are requirements contained in this State, local, and tribal governments or financed by the LH program. Occupancy regulation have been previously the private sector. Therefore, this rule is in both is restricted to United States approved by the Office of Management not subject to the requirements of citizens or aliens legally admitted for and Budget (OMB) under the provisions sections 202 and 205 of the UMRA. permanent residence.
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On-farm housing is financed with suggested that the Agency issue the Description of Proposed Financing section 514 loans to a farmer or farm notice of funding earlier in the year, Three respondents commented on the entity. Housing built is typically a single based on preliminary appropriations provisions of § 1944.170(a)(2)(ii), family dwelling unit, and occupancy is estimates, before funds actually become ‘‘Description of proposed financing.’’ restricted to farmworkers or a available. The notice would specify that One questioned whether the farmworker family with at least one funds were subject to the amount of the requirement that leveraged funds not member of the household employed by final appropriations. The second exceed the cost of 100 percent LH loan the farm. No tenant subsidies are commentor suggested that the Agency financing was realistic. Based on our available. accept applications and issue letters of experience with the section 515 Rural Off-farm housing proposals, which commitment in FY 1999 for FY 2000 Rental Housing program, we have found may be financed with both section 514 funds; FY 1999 funds could then be this to be a realistic requirement, with loans and section 516 grants, are used to fund applications on hand for many applicants obtaining grants, typically designed like conventional which the Agency has already issued an deferred loans, or 1 percent loans. We apartment complexes; however, AD–622, ‘‘Notice of Preapplication have modified this provision, however, occupancy is restricted to farmworker Review Action’’, inviting a formal to indicate that this condition applies households. Rental assistance is application. A third commentor on this only if RHS Rental Assistance is being typically available to occupants to issue offered an opposing opinion, provided. Regarding the provisions for assure unit affordability. stating that the Agency should not donated land, one commentor felt that On October 29, 1998, the Agency announce the availability of funds prior the requirement that site costs cannot published a proposed rule in the to the appropriation of funds because exceed the cost of purchasing and Federal Register (63 FR 57932) to funding levels can vary from year to developing an alternative site was too change to an annual competitive year. inflexible, citing instances where no funding cycle from the current system of The Agency feels that the funding other site is available or the site is accepting and processing off-farm labor announcement can be made as soon as mandated by local conditions. The housing proposals on a first-come, first- there is reasonable assurance of funding Agency agrees there may be exceptional served basis. These regulation changes cases; however, these will be handled do not affect on-farm housing loan levels. The funding notice will be published in the Federal Register as on a case-by-case exception basis. A requests, which will continue to be third commentor objected to the accepted and processed on a first-come, quickly as possible thereafter to allow the maximum application period. requirement that the funding dates of first-served basis. leveraged funds permit funding within Several commentors stated that a the current funding cycle, noting that Discussion of Comments minimum of 90 days should be allowed this was not appropriate for on-going Fifteen commentors responded during for the application cycle to allow operating subsidies. The same the comment period, three of whom smaller or inexperienced applicants commentor also noted that, for many submitted duplicate letters. An time to complete their applications. We leveraged sources, the funds may be additional comment was received after agree that a 90-day Notice of Funds committed but not actually received in the comment period had closed, Availability (NOFA) is preferable and the funding cycle. The Agency feels expressing support of another will make every effort to accommodate there is merit to these criticisms and has commentor’s letter, making a total of this recommendation by publishing modified the language for this sixteen responses. Commentors NOFA as soon as funding levels are requirement accordingly. included State agencies, farm labor known. The Agency will also attempt to housing technical assistance providers, ensure, through outreach efforts, that Environmental Review nonprofit groups, developers, and RHS potential applicants are aware of the Two commentors recommended that field staff. The Agency wishes to thank program’s annual funding cycle so that the Agency require Form RD 1940–20, all respondents for their thorough and preliminary groundwork can be done ‘‘Request for Environmental constructive comments and suggestions. prior to the Agency’s funding Information,’’ at the initial application We have carefully considered all announcement. stage and consider requiring a Phase I comments in developing this final rule. Three-Stage Application Process Environmental Review at this stage. The The comments we received are Agency agrees that the environmental summarized and discussed below by The Agency proposed adopting a process should begin with the initial topic. three-stage application process with a loan request. Form RD 1940–20 is preliminary proposal stage. The required with the preapplication Annual Competitive Funding Cycle majority of commentors were opposed submission, and Agency staff will be The majority of commentors agreed to this and recommended retaining the required to conduct a site visit to with the Agency’s proposal to adopt an current two-stage process. They noted establish preliminary site eligibility and annual competitive funding cycle, with that the preliminary stage was nearly as to identify potential environmental only two commentors opposing this extensive as the Agency’s current first concerns. In coordination with the alternative to the current first-come, stage (preapplication) requirements and environmental site review, Agency staff first-served application process. The unnecessarily complicated the process. will be required to conduct a civil rights Agency is implementing the annual Two commentors also noted that, if the impact analysis in accordance with RD competitive funding cycle as proposed. applicant is applying for other funds to Instruction 2006-P. Two commentors, while agreeing with leverage with RHS funds, the the annual competitive process, felt that information required in the Agency’s Appraisal Requirements the proposed 60-to 90-day application current preapplication stage is generally One commentor noted that period was too short, and offered required by the other lenders. Based on § 1944.169(a)(1) requires appraisals to suggestions for ways to give applicants these comments, the Agency has be performed by RHS employees and more time to complete and submit their decided to retain the current two-stage questioned whether this precluded loan requests. The first commentor application process. contract appraisals. We agree that the
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Agency may wish to use contract zero to twenty points for an optional difficulty in projecting future occupancy appraisers in some instances and have Agency initiative announced in NOFA. and the lack of reliable data. One of the changed the wording in this section to One commentor suggested that the commentors further noted that this remove the reference to RHS employees. Agency announce any initiative well in factor is more appropriate as a advance of NOFA and keep the same preliminary eligibility assessment. The Loan Selection Criteria initiative for more than one year. Three Agency feels these are valid criticisms The Agency proposed awarding commentors noted that, since applicants and, therefore, has not adopted this points in nine different loan selection would not be able to plan ahead for the factor in the final rule. categories: (1) the presence and extent of initiative, twenty points gave it too Market areas not previously served by leveraged assistance; (2) units to be built much weight. Another commentor LH projects. We received two comments in communities with a high need for objected to the range of scores, feeling on this loan scoring factor. Both farmworker housing; (3) proposals in that the proposal would either comply recommended that the Agency modify support of an Agency initiative with the initiative or not. The Agency this category to reflect the degree of announced in Notice of Funds appreciates these comments and need for farmworker housing in the Availability (NOFA); (4) proposals with concerns and will take them into market area based on the number of support services; (5) proposals with a consideration in developing any Agency farmworker households and available minimum ten percent private initiatives. In addition, we have housing units. We considered this agriculture producer leveraged funds; modified the point score for this factor suggestion but decided against adopting (6) projects whose occupants will derive so that ten points will be awarded to it because of the difficulty in obtaining the highest percentage of income from proposals that support the Agency accurate data on farmworker housing on-farm agriculture work; (7) proposals initiative and zero points for those that needs. We agree, however, that housing in market areas not previously served by do not. should go to areas of greatest need based LH projects; (8) seasonal, temporary, or Supportive services. Commentors on the market analysis, which may or migrant housing; and (9) for FY 1999 expressed a variety of opinions on the may not have existing LH units. and FY 2000, proposals that were issued proposal to award five points for one Therefore, we have not adopted this an AD–622, ‘‘Notice of Preapplication supportive service and ten points for factor in the final rule. Review Action,‘‘ inviting a formal two or more. One commentor supported Seasonal, temporary, or migrant application, or had been reviewed and this factor as proposed, while two others housing. The proposed rule provided authorized by the National Office prior felt the Agency needed to better define that five points would be awarded for to October 29, 1998 (the date the supportive services and should proposals with up to 50 percent of its proposed rule was published in the differentiate between simple and more units serving seasonal, temporary, or Federal Register). The comments on complex services. One suggested using migrant farmworkers, and ten points for each category are discussed below: a range of points for each service based 51 percent or more. Three commentors The presence and extent of leveraged on the financial investment or value. felt that more weight should be given to assistance, and proposals with a One commentor noted that a services this factor, with one noting that this minimum ten percent private package should be required of all multi- factor should be on a par with leveraged agriculture producer leveraged funds. family housing and updated every few assistance to help accomplish a The majority of commentors felt that the years. Another commented that services balanced program. Two of these two criteria dealing with leveraged should not be required on-site if they commentors suggested a point range of assistance should be combined into one, are available in close proximity to the zero to twenty points, based on the both to simplify the process and to housing and the service providers have percentage of units serving seasonal, preclude giving too much weight to committed that the services are temporary, or migrant farmworkers. As leveraged assistance. In addition, available, accessible, and affordable to mentioned above (under the heading commentors felt that the Agency should farmworkers and their families. Still ‘‘The presence and extent of leveraged establish point ranges for percentages of another commentor suggested a change assistance and proposals with a leveraging, rather than the proposed in regulations to make the provision of minimum 10 percent private agriculture method of comparing applications to services an eligible operating expense. producer leveraged funds’’), the two each other. The Agency agrees with both Although the suggestions varied, all proposed leveraging factors have been of these suggestions and has adopted commentors agreed that a supportive combined into one, reducing the them in this rule. services package is critical to the maximum points for leveraging from High-need areas for farmworker successful operation of multi-family forty to twenty. Few applications will housing. Seven commentors objected to housing. Based on this and the lack of receive the maximum twenty points, so the proposed loan score factor for consensus on a fair way to distinguish we do not believe leveraging will projects that would be located in high between services in awarding points, arbitrarily outweigh other factors. With need areas for farmworker housing as the Agency has decided not to use this limited program funds, we have identified in the state Consolidated Plan as a loan scoring factor but, instead, will attempted to balance the need for or state needs assessment. It was noted require a supportive services plan as leveraging with other Agency objectives. that many states do not identify part of the application. Services may be Therefore, we have retained the points farmworker housing needs at all, or do provided on-site or through cooperative for seasonal, temporary, or migrant not give these needs any special agreements with service providers in the housing as proposed. priority. Several commentors noted that community. At the initial application Loan requests that have been issued the Agency should rely on the market stage, letters of intent from service an AD–622. The proposed rule provided analysis to determine need and demand. providers will be acceptable that, for Fiscal Years 1999 and 2000, ten Because of the strong opposition by documentation. points would be awarded to commentors, and in the absence of Highest percentage of income from applications or loan requests that had uniformly available data or state plans, on-farm agricultural work. Five been issued an AD–622, ‘‘Notice of the Agency is not adopting this factor. respondents commented on this factor. Preapplication Review Action,’’ inviting Agency initiative. Five comments All five objected to its inclusion in the a formal application, or had been were received on the proposal to award loan selection criteria, pointing out the authorized by the National Office prior
VerDate 26-APR-99 12:32 May 05, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\A06MY0.003 pfrm01 PsN: 06MYR2 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Rules and Regulations 24479 to October 29, 1998 (the date the between requests from different States. financed under section 514 or section proposed rule was published). Five With regard to the ‘‘most supportive 516. This provision is not included in respondents commented on this issue. services’’, we are not adopting this loan this rule because of the need to make Two agreed with this provision, with scoring factor in the final rule, so it is changes to the Agency’s project one stressing support for the two-year no longer appropriate as a tie breaker management regulations and automated limitation. One commentor disagreed (see discussion above under ‘‘Loan systems but will be included in the with this provision, stating that each Selection Criteria’’). With regard to the Agency’s reinvented regulation, which proposal should compete on its own suggested tie breakers, we believe it is scheduled to be published as a merits. Another commentor felt that would be difficult to obtain reliable and proposed rule in fall of 1999. proposals with an AD–622 should not objective data to establish ‘‘most cost have to compete with other proposals, effective’’ and ‘‘greatest market need’’. Implementation Proposal since they were developed under the We agree, however, that there is merit Under the annual competitive system previous regulations. The fifth to using the actual percentage of that is being implemented with this commentor suggested funding only leveraged assistance as a tie-breaker. In rule, the amount of available funds and those proposals with AD–622s in fiscal addition, the Agency believes there is application deadlines will be year 1999 and implementing the new merit to giving a preference to announced each funding cycle in the process in fiscal year 2000. applications to develop units in states Federal Register through a NOFA. Loan Commentors were divided on this that have no existing RHS-financed off- requests received by the application issue and, after considering the farm LH units. Therefore, the actual deadline will be reviewed and selected comments and arguments on both sides, percentage of leveraged assistance will based on objective criteria in accordance the Agency has decided to implement be used as a tie-breaker for point-score with the revised regulations. Loan this measure as proposed, i.e., to give ties within the State; in the case of requests not selected for funding will be preference to loan requests that were point-score ties in the National ranking, returned to the applicant. issued an AD–622 or authorized by the preference will be given to applications Applications on hand are subject to National Office by awarding points for in States that have no existing RHS- the new competitive process. In fiscal two funding cycles. However, to address financed off-farm LH units. In the event years 1999 and 2000, points will be the concerns of commentors who felt of further point-score ties at the awarded to applications on hand that AD–622s should be given more National level, preference will be given were issued an AD–622 inviting a consideration, we have increased the to States that have not been selected in formal application or that had been number of points from ten to fifteen. the current cycle. reviewed and authorized by the Other Suggested Loan Selection Criteria Geographic Diversity National Office as of October 29, 1998 (the publication date of the proposed Several commentors suggested other The proposed rule provided that the rule). A new proposal that ranks higher loan selection criteria for the Agency’s Agency could select a lower scoring under the selection criteria than an consideration. Two commentors loan request over one with a higher existing application will take priority suggested project readiness and score in order to achieve geographic over the existing one. development team experience; others diversity. Five commentors strongly Agency staff were directed by the suggested cost effectiveness and objected to this provision, stating that it proposed rule to return proposals on construction quality. The Agency undermined the objectivity of the point hand that had not been issued an AD– considered these and similar criteria in system. We agree that the selection 622 or reviewed and authorized by the drafting the proposed rule; however, we process should be fair and objective National Office as of October 29, 1998 found it impossible to develop and, therefore, we have not adopted this (the publication date of the proposed standards for factors that require provision in the final rule. rule). Loan requests thus returned may, subjective judgments, such as an Statutory Amendments of course, be submitted for assessment of quality or experience. In Public Law 105–276, enacted October consideration during the application addition, we were concerned that the period announced in NOFA. readiness to proceed factor could result 21, 1998, included two amendments to in delays or obstacles by communities the Farm Labor Housing (LH) program. List of Subjects The first extends eligibility for low- that oppose the development of farm 7 CFR Part 1940 labor housing. Therefore, we have not income housing tax credit financing to adopted these suggestions. the LH program by adding as eligible Administrative practice and borrowers for section 514 loans ‘‘any procedure, Agriculture, Grant Point-score Ties nonprofit limited partnership in which programs—housing and community The proposed rule provided that, in the general partner is a nonprofit development, Loan programs— case of point-score ties for requests from entity’’. This wording is interpreted by agriculture, Reporting and the same State, the proposal with the the Agency to mean ‘‘any limited recordkeeping requirements, Rural most supportive services would be partnership in which the general partner areas. given priority, with further same-State is a nonprofit entity.’’ We have included 7 CFR Part 1944 ties determined by lottery. One this provision in the final rule and will commentor objected to these tie interpret ‘‘nonprofit limited Grant programs—housing and breakers, proposing instead that, with partnership’’ to mean ‘‘any limited community development, Loan limited funds and the emphasis on partnership in which the general partner programs—housing and community leveraging, primary priority be given to is a nonprofit entity.’’ This will be development, Migrant labor, Nonprofit requests that are the most cost effective consistent with the wording found in organizations, Public housing, Rent and have the most leveraged assistance, section 515(w) (42 U.S.C. 1485(w)). The subsidies, Reporting and recordkeeping with secondary priority to requests with second LH legislative amendment requirements. the greatest market need for LH units. provides that rental assistance payments Therefore, chapter XVIII, title 7, Code The same commentor felt the regulation may be used for project operating costs of Federal Regulations is amended to should also address point-score ties in housing for migrant farmworkers read as follows:
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PART 1940ÐGENERAL ordinarily treated as part of the farm in (b) For all applicants, including its the local community. members, not receiving any benefits 1. The authority citation for part 1940 from LIHTC, who are nonprofit entities is revised to read as follows: * * * * * HUD. The U.S. Department of or State or local public agencies, the Authority: 5 U.S.C. 301; 7 U.S.C. 1989; and Housing and Urban Development. amount of the RHS loan will be limited 42 U.S.C. 1480. * * * * * to the total development cost or the security value, whichever is less, plus Subpart LÐMethodology and LH. Farm Labor Housing. the 2 percent initial operating capital. Formulas for Allocation of Loan and * * * * * (c) For all other applicants, including Grant Program Funds MFH. Multi-Family Housing. its members, not receiving any benefits 2. Revise section 1940.579 to read as * * * * * from LIHTC, the amount of the RHS follows: NOFA. Notice of Funds Availability. loan will be limited to no more than 97 * * * * * percent of the development cost or the § 1940.579 Multiple Family Housing Off-Farm Labor Housing. Housing for security value, whichever is less. appropriations not allocated by State. farm laborers regardless of the farm 7. Amend section 1944.164 in the Funds are not allocated to States. The where they work. introductory text of paragraph (d) in the following program funds are kept in a On-Farm Labor Housing. Housing for first sentence to revise the words National Office reserve and are available farm laborers specific to the farm where ‘‘District Director’’ to read ‘‘Loan as determined administratively: they work. Official’’ and the words ‘‘FmHA or its (a) Section 514 Farm Labor Housing * * * * * successor agency under Public Law Loans. RHS. Rural Housing Service. 103–354’’ to read ‘‘RHS’’; in paragraph (b) Section 516 Farm Labor Housing (d)(1)(i) by revising the words ‘‘FmHA Grants. * * * * * 5. Amend section 1944.157 to revise or its successor agency under Public PART 1944ÐHOUSING paragraphs (a)(1) and (a)(3) to read as Law 103–354’’ to read ‘‘RHS’’; and to follows: revise paragraph (b) to read as follows: 3. The authority citation for part 1944 § 1944.164 Limitations and conditions. continues to read as follows: § 1944.157 Eligibility requirements. (a) * * * * * * * * Authority: 5 U.S.C. 301; 42 U.S.C. 1480. (b) Maximum amount of grant. The (1) Be a farmowner, family farm amount of any grant may not exceed the Subpart DÐFarm Labor Housing Loan partnership, family farm corporation, or lesser of: and Grant Policies, Procedures, and an association of farmers whose farming Authorizations (1) Ninety percent of the total operations demonstrate a need for farm development cost; or 4. Amend section 1944.153 in the labor housing, or an organization, as (2) That portion of the total cash definition of ‘‘Domestic farm laborer’’ by these terms are defined in § 1944.153, development cost which exceeds the revising the words ‘‘FmHA or its which will own the housing and operate sum of any amount the applicant can successor agency under Public Law it on a nonprofit basis; or a nonprofit provide from its own resources plus the 103–354’’ to read ‘‘Rural Housing limited partnership in which the general amount of a loan which the applicant Service’’; in the definition of ‘‘Farm partner is a nonprofit entity. will be able to repay, with interest, from owner’’ by revising the words ‘‘subpart * * * * * income from rentals which low-income A of part 1944 of this chapter’’ to read (3) Provide from its own resources the farmworker families can be reasonably ‘‘this section’’; in the definition of ‘‘Self- borrower contribution required by expected to be able to pay. The employed’’ by revising the words § 1944.160 and have sufficient initial availability of rental assistance and ‘‘FmHA or its successor agency under operating capital to pay costs such as HUD section 8 subsidies will be Public Law 103–354’’ to read ‘‘Rural property and liability insurance considered in determining the rentals Housing Service’’ and the words premiums, fidelity bond premiums if that farmworkers will pay. ‘‘District or State Director’’ to read required, utility hookup deposits, * * * * * ‘‘Loan Official or State Director’’; and by maintenance equipment, movable 8. Amend section 1944.169 to revise adding in alphabetical order definitions furnishings and equipment, printing paragraph (a)(1) to read as follows: to read as follows: lease forms, and other initial expenses. LH loans made to nonprofit § 1944.169 Technical, legal, and other § 1944.153 Definitions. organizations and to State or local services. Agency. The Rural Housing Service, public agencies or political subdivisions (a) * * * an agency of the U.S. Department of thereof may include up to 2 percent of (1) An appraisal is required when real Agriculture which administers section the development cost for initial estate is taken as security. The appraisal 514 loans and section 516 grants. operating expenses. must be made in accordance with the * * * * * * * * * * Uniform Standards of Professional Farm. A tract or tracts of land, 6. Add section 1944.160 to read as Appraisal Practices (available in any improvements, and other appurtenances follows: Rural Development office). considered to be farm property which is * * * * * used or will be used in the production § 1944.160 Off-farm loan limits. 9. Amend section 1944.170 to of crops or livestock, including the (a) For all applicants, including its redesignate paragraph (c) as paragraph production of fish under controlled members, who will be receiving any (f); in newly redesignated paragraph conditions, for sale in sufficient benefits from Low-Income Housing Tax (f)(5)(i) to revise the reference quantities so that the property is Credits (LIHTC), the amount of the RHS ‘‘§ 1944.164(b)(2)’’ to read recognized as a farm rather than a rural loan will be limited to no more than 95 ‘‘§ 1944.164(b)’’, in newly redesignated residence. It may also include a percent of the total development cost or paragraph (f)(5)(ii)(B) to revise the residence which, although physically 95 percent of the security value, words ‘‘an LH loan’’ to read ‘‘a LH separate from the farm acreage, is whichever is less. loan’’; in newly redesignated paragraph
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(f)(5)(ii)(C) to revise the reference (3) The applicant is an eligible entity Percentage Points ‘‘paragraph (c)(5)(ii)(A)’’ to read and is not currently debarred, ‘‘paragraph (f)(5)(ii)(A)’’; to remove suspended, or delinquent on any 50±59 ...... 16 newly redesignated paragraph (f)(7); to Federal debt; and 40±49 ...... 12 revise the section heading, the (4) The proposal is for authorized 30±39 ...... 10 introductory text, and paragraphs (a) purposes. 20±29 ...... 8 (c) Scoring and ranking off-farm 10±19 ...... 5 and (b); and to add new paragraphs (c) 0±9 ...... 0 through (e) to read as follows: preapplications. The Agency will score Donated land in proposals with and rank off-farm preapplications for less than ten percent total le- § 1944.170 Preapplication requirements new units that meet the criteria of and processing. veraged assistance ...... 2 paragraph (b) of this section. A two-stage application process is (1) The following criteria will be used (ii) The loan request is in support of used. In stage one, applicants submit a to score project proposals: an Agency initiative announced in preapplication, which is used to (i) The presence and extent of NOFA. (10 points) determine preliminary eligibility and leveraged assistance, including donated (iii) Seasonal, temporary, or migrant feasibility. Preapplications selected for land, for the units that will serve housing. (5 points for up to and further processing will be invited to program-eligible tenants, calculated as a including 50 percent of the units; 10 submit an application. The percentage of the RHS total points for 51 percent or more) preapplication consists of SF–424.2, development cost (TDC). RHS TDC (iv) For Fiscal Year 1999 and Fiscal ‘‘Application for Federal Assistance (For excludes non-RHS eligible costs such as Year 2000 funding cycles, outstanding Construction)’’ and the information a developer’s fee. Leveraged assistance applications or requests that were listed in exhibit A–1 or A–2 of this includes, but is not limited to, funds for issued an AD–622, ‘‘Notice of subpart, as applicable. Preapplications hard construction costs, Section 8 or Preapplication Review Action,’’ inviting for off-farm new construction loans and other non-RHS tenant subsidies, and a formal application, or had been grants will be accepted and processed in state or federal funds. A minimum of reviewed and authorized by the accordance with this section when ten percent leveraged assistance is National Office prior to October 29, NOFA is announced in the Federal required to earn points. (0 to 20 points) 1998. (15 points) Register. Applicants are advised to read (A) To count as leveraged funds for (2) The Agency will rank the notice carefully for any restrictions purpose of the selection criteria: preapplications by point score. For on loan or grant amounts. (1) A commitment of funds must be point-score ties within the State, rank Preapplications for repair and received within a timeframe that order will be determined by giving first rehabilitation of existing off-farm LH permits processing of the loan request preference to the application with the units and new units of on-farm housing within the current funding cycle (the greatest actual percentage of leveraged may be submitted any time during the latest commitment date for leveraged assistance. In case of further same-State year and will be processed on a first- funds will be announced in NOFA); and ties, rank order will be determined by come, first-served basis in accordance (2) If RHS RA is being provided, the lottery. with subpart L of part 1940 of this interest cost to the project using (d) Selection of preapplications for chapter. leveraged loan funds may not exceed further processing. (1) States will make (a) Preapplications for new units in the cost of 100 percent LH loan a preliminary eligibility and feasibility off-farm facilities. (1) The Agency will financing. assessment, score and rank the publish NOFA annually in the Federal (B) For donated land to be scored as preapplications, and provide this Register with deadlines for submitting leveraged assistance, all of the following information to the National Office with preapplications. The notice will include conditions must be met. their review comments. the amount of funds available, any limit (1) Based on a preliminary review, the (2) The National Office will rank the on the amount of individual loan and land is suitable and meets Agency preapplications nationwide. In case of grant requests, any limit on the amount requirements. Final site acceptance is point-score ties in the National ranking, of funds that any one State may receive, subject to a completed environmental first preference will be given to a and the loan scoring criteria. review. preapplication to develop units in a (2) The preapplication must be (2) Site development costs do not state that does not have existing RHS- submitted in accordance with NOFA exceed what they would be to purchase financed off-farm LH units; second and consists of SF–424.2, ‘‘Application and develop an alternative site. preference to a preapplication from a (3) The overall cost of the project is for Federal Assistance (For State that has not yet been selected in reduced by the donation of the land. Construction)’’, and the information the current funding cycle. In the event (C) Points for leveraged assistance required by exhibit A–1 of this subpart. there are multiple preapplications in will be awarded in accordance with the The preapplication will be used by the either category, one preapplication from following table. Percentages will be Agency to determine preliminary each State (the highest State-ranked) rounded to the nearest whole number, eligibility and to score and rank will compete by computer-based rounding up at .50 and above and down proposals. random lottery. If necessary, the process at .49 and below. For example, 25.50 (b) Preliminary eligibility assessment will be completed until all same- becomes 26; 25.49 becomes 25. If the of preapplications received in response pointed preapplications are selected or total percentage of leveraged assistance to NOFA. The Agency will make a funds are exhausted. is less than ten percent, and it includes preliminary eligibility assessment using (3) The Agency will not select a donated land, two points will be the following criteria: preapplication for a new LH loan in an awarded for the donated land. (1) The preapplication was received area with competing or problem projects by the submission deadline specified in Percentage Points when: NOFA; (i) The Agency has selected another (2) The preapplication is complete as 75 or more ...... 20 LH proposal in the same market area for specified in NOFA; 60±74 ...... 18 further processing;
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(ii) A previously authorized or and announced in the NOFA. Applications The market survey should address or include approved Agency, HUD, or similar for on-farm facilities are accepted any time the following items: assisted MFH project in the same market during the year and are funded on a first- * * * * * area serving farmworkers has not been come, first-served basis, based on the 3. General information concerning the type availability of funds. completed or reached its projected of labor intensive crops grown in the area occupancy level; or * * * * * and prospects for continued demand for farm (iii) An existing Agency, HUD, or 11. Exhibit A–1 to subpart D is laborers (i.e., prospects for mechanization, similar assisted MFH project in the amended by revising paragraphs I.A.1 etc.). Information may be available from the same market area serving farmworkers is and I.A.3, the introductory text of local U.S. Department of Agriculture (USDA) Cooperative, State, Research, Education and experiencing high vacancy levels, paragraph I.B., paragraph I.B.3, the text of paragraph I.B.6 preceding the note, Extension Service office or from the Farm unless such vacancy is planned as part Service Agency. of the occupancy cycle of a seasonally- paragraph I.C., and paragraph I.E. to operated migrant farmworker facility. read as follows: * * * * * 6. A description of the units proposed, (4) If any selected preapplications Exhibit A–1 to Subpart D—Information To including number, type, size, rental rates, cannot meet the processing deadlines Be Submitted by Organizations and amenities such as carpets and drapes, related established by the Agency to enable Associations of Farmers for Labor Housing facilities such as a laundry room or Loan or Grant processing and fund obligation within community room and other facilities the current funding cycle, or if I. Information to be submitted with SF providing supportive services in connection requested leveraged funds are not 424.2 (for preapplication submission). with the housing and the needs of the committed within the timeframe A. * * * prospective tenants such as a health clinic or established in NOFA, the Agency will 1. Financial Statement—A current, dated, day care facility; estimated development and signed financial statement showing select the next ranked preapplication for timeline; estimated total development cost assets and liabilities with information on the and applicant contribution. If the application processing. repayment schedule and status of all debts. (e) Notification to applicants. States includes leveraged funds, include If the applicant is an association of farmers, documentation of the dollar amount, source, will notify all applicants of the results a current financial statement will also be and commitment status. of the selection process. required from each member who holds an (1) Applicants selected for further interest in the association in excess of 10 * * * * * processing will be notified and percent. If the applicant is a limited C. Environmental Information partnership, financial statements are required processed in accordance with this The applicant will complete Form RD section and § 1944.171. from each general partner who holds an interest in the organization, and from each 1940–20, ‘‘Request for Environmental (2) Project proposals not selected for limited partner who will have 10 percent or Information,’’ along with a description of further processing, including more ownership. The financial statement anticipated environmental issues or incomplete proposals or those that must reflect sufficient financial capacity to concerns. failed to meet NOFA requirements, or meet the initial operating capital * * * * * those that could not be reached because requirements. Loan or grant funds may be E. Additional Information of insufficient funds, will be returned to used to provide the required initial operating the applicant with the reason they were capital for nonprofit entities and State or 1. Evidence of site control such as an not selected. local public agencies. If the applicant is a option or sales contract; a map and limited partnership, the financial statement description of the proposed site, including * * * * * must also demonstrate sufficient capacity to the availability of water, sewer, and utilities, 10. Exhibit A to subpart D is amended meet the applicant’s equity contribution. and proximity to community facilities and by revising the first paragraph to read as * * * * * services such as shopping, schools, follows: 3. If a Labor Housing (LH) grant is transportation, doctors, dentists, and hospitals. Exhibit A to Subpart D—Labor Housing Loan requested, the applicant should provide a 2. Preliminary plans and specifications, and Grant Application Handbook statement on their projected use of Rental Assistance (RA) and their need for a LH including plot plans, building layouts, and Introduction grant. This statement should include type of construction and materials. The section 514 Labor Housing loan and preliminary estimates of the rents required 3. A supportive services plan describing section 516 Labor Housing grant programs with and without a grant and the relative services that will be provided on-site or made are administered by the Rural Development’s need for a grant if RA is provided to available to tenants through cooperative Rural Housing Service (RHS), herein referred supplement market rents for eligible agreements with service providers in the to as the Agency. Interested parties are farmworkers. [LH grants and RA are not community, such as a health clinic or day advised to contact any Rural Development available to associations of farmers; LH grants care facility. Off-site services must be office processing Labor Housing (LH) loans are not available to limited partnerships.] accessible and affordable to farmworkers and and grants to obtain information on program * * * * * their families. Letters of intent from service and application requirements prior to B. * * * providers are acceptable documentation at developing an application. Notice of Funds A preliminary survey should be conducted the preapplication stage. Availability (NOFA) for off-farm facilities to identify the supply and demand for LH in * * * * * will be announced annually in the Federal the market area. The market area must be Dated: April 29, 1999. Register, along with application requirements clearly identified and may include only the Jill Long Thompson, and the deadline for applying. Requests area from which tenants can reasonably be Under Secretary, Rural Development. received during the application period will drawn for the proposed project. The be selected competitively, based on the applicant must provide documentation to [FR Doc. 99–11256 Filed 5–5–99; 8:45 am] objective selection criteria in the regulation justify need within the intended market area. BILLING CODE 3410±XV±U
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DEPARTMENT OF AGRICULTURE Arkansas State Office, 700 W. Capitol Ave., MS 39269, (601) 965–4325, TDD (601) 965– Rm. 3416, Little Rock, AR 72201–3225, 5850, Danny Ivy Rural Housing Service (501) 301–3250, TDD (501) 301–3279, Missouri State Office, 601 Business Loop 70 Cathy Jones West, Parkade Center, Suite 235, Columbia, Notice of Funds Availability (NOFA) for California State Office, 430 G Street, Agency MO 65203, (573) 876–0990, TDD (573) Section 514 Farm Labor Housing 4169, Davis, CA 95616–4169, (530) 792– 876–9480, Gary Frisch Montana State Office, Unit 1, Suite B, 900 Loans and Section 516 Farm Labor 5800, Robert P. Anderson Colorado State Office, 655 Parfet Street, Technology Blvd., Bozeman, MT 59715, Housing Grants for Off-farm Housing Room E100, Lakewood, CO 80215, (303) (406) 585–2515, TDD (406) 586–0819, 236–2801 (ext. 122), TDD (303) 236–1590, MaryLou Falconer AGENCY: Rural Housing Service (RHS), ‘‘Sam’’ Mitchell Nebraska State Office, Federal Building, USDA. Connecticut—Served by Massachusetts State room 152, 100 Centennial Mall N, Lincoln, ACTION: Notice. Office NE 68508, (402) 437–5567, TDD (402) 437– Delaware/Maryland State Office, 5201 South 5093, Byron Fischer SUMMARY: This NOFA announces the Dupont Highway, PO Box 400, Camden, DE Nevada State Office, 1390 South Curry Street, timeframe to submit applications for 19934–9998, (302) 697–4314, TDD (302) Carson City, NV 89703–9910, (702) 887– section 514 Farm Labor Housing loan 697–4303, W. Arthur Greenwood 1222, TDD (702) 885–0633 (ext. 13), William L. Brewer funds and section 516 Farm Labor Florida & Virgin Islands State Office, 4440 N.W. 25th Place, PO Box 147010, New Hampshire—Served by Vermont State Housing grant funds for new Gainesville, FL 32614–7010, (352) 338– Office construction of off-farm units for 3465, TDD (352) 338–3499, Joseph P. Fritz New Jersey State Office, Tarnsfield Plaza, farmworker households. Applications Georgia State Office, Stephens Federal Suite 22, 790 Woodland Road, Mt. Holly, may also include requests for section Building, 355 E. Hancock Avenue, Athens, NJ 08060, (609) 265–3630, George Hyatt, Jr. 521 rental assistance (RA). This GA 30601–2768, (706) 546–2164, TDD New Mexico State Office, 6200 Jefferson St., document describes the method used to (706) 546–2034, Wayne Rogers NE, Room 255, Albuquerque, NM 87109, Guam—Served by Hawaii State Office (505) 761–4944, TDD (505) 761–4938, distribute funds, the application Carmen N. Lopez process, and submission requirements. Hawaii, Guam, and Western Pacific Territories State Office, Room 311, Federal New York State Office, The Galleries of DATES: The closing deadline for receipt Building, 154 Waianuenue Avenue, Hilo, Syracuse, 441 S. Salina Street, Suite 357, of all applications in response to this HI 96720, (808) 933–3000, TDD (808) 933– Syracuse, NY 13202, (315) 477–6419, TDD NOFA is 5:00 p.m., local time for each 6902, Abraham Kubo (315) 477–6447, George N. Von Pless North Carolina State Office, 4405 Bland Idaho State Office, Suite A1, 9173 West Rural Development State office on July Road, Suite 260, Raleigh, NC 27609, (919) Barnes Dr., Boise, ID 83709, (208) 378– 15, 1999. The application closing 873–2062, TDD (919) 873–2003, Eileen 5627, TDD (208) 378–5644, Roni Atkins deadline is firm as to date and hour. Nowlin Illinois State Office, Illini Plaza, Suite 103, RHS will not consider any application North Dakota State Office, Federal Building, 1817 South Neil Street, Champaign, IL that is received after the closing Room 208, 220 East Rosser, PO Box 1737, 61820, (217) 398–5412 (ext. 256), TDD deadline. Applicants intending to mail Bismarck, ND 58502, (701) 250–4771, TDD (217) 398–5396, Barry L. Ramsey (701) 250–4794, Kathy Lake applications must provide sufficient Indiana State Office, 5975 Lakeside time to permit delivery on or before the Ohio State Office, Federal Building, Room Boulevard, Indianapolis, IN 46278, (317) 507, 200 North High Street, Columbus, OH closing deadline date and time. 290–3117, TDD (317) 290–3343, John 43215–2477, (614) 469–5165, TDD (614) Acceptance by a post office or private Young 469–5757, Gerald Arnott mailer does not constitute delivery. Iowa State Office, 873 Federal Building, 210 Oklahoma State Office, 100 USDA, Suite 108, Facsimile (FAX), COD, and postage due Walnut Street, Des Moines, IA 50309, (515) Stillwater, OK 74074–2654, (405) 742– applications will not be accepted. 284–4493, TDD (515) 284–4858, Bruce 1070, TDD (405) 742–1007, Patsy McGuire Graumann ADDRESSES: Applicants wishing to apply Kansas State Office, 1200 SW Executive Oregon State Office, 101 SW Main, Suite for assistance must contact the Rural Drive, PO Box 4653, Topeka, KS 66604, 1410, Portland, OR 97204–3222, (503) 414– Development State office serving the (785) 271–2721, TDD (785) 271–2767, Gary 3350, TDD (503) 414–3387, Jillene Davis place in which they desire to submit an Shumaker Pennsylvania State Office, One Credit Union application for off-farm labor housing to Kentucky State Office, 771 Corporate Drive, Place, Suite 330, Harrisburg, PA 17110– receive further information and copies Suite 200, Lexington, KY 40503, (606) 224– 2996, (717) 237–2187, TDD (717) 237– of the application package. Rural 7325, TDD (606) 224–7422, Paul Higgins 2187, Gary Rothrock Louisiana State Office, 3727 Government Puerto Rico State Office, New San Juan Office Development will date and time stamp Street, Alexandria, LA 71302, (318) 473– incoming applications to evidence Bldg., Room 501, 159 Carlos E. Chardon 7962, TDD (318) 473–7655, Yvonne R. Street, Hato Rey, PR 00918–5481, (787) timely receipt, and, upon request, will Emerson 766–5095, Ext. 254, TDD 1–800–274–1572, provide the applicant with a written Maine State Office, 444 Stillwater Ave., Suite Lourdes Colon acknowledgment of receipt. A listing of 2, PO Box 405, Bangor, ME 04402–0405, Rhode Island—Served by Massachusetts Rural Development State offices, their (207) 990–9115, TDD (207) 942–7331, Dale State Office addresses, telephone numbers, and D. Holmes South Carolina State Office, Strom person to contact follows: Maryland—Served by Delaware State Office Thurmond Federal Building, 1835 Massachusetts, Connecticut, and Rhode Assembly Street, Room 1007, Columbia, SC Note: Telephone numbers listed are not Island State Office, 451 West Street, 29201, (803) 765–5690, TDD (803) 765– toll-free. Amherst, MA 01002, (413) 253–4333, 5697, Larry D. Floyd Alabama State Office, Suite 601, Sterling Donald Colburn South Dakota State Office, Federal Building, Centre, 4121 Carmichael Road, Michigan State Office, 3001 Coolidge Road, Room 210, 200 Fourth Street, SW, Huron, Montgomery, AL 36106–3683, (334) 279– Suite 200, East Lansing, MI 48823, (517) SD 57350, (605) 352–1132, TDD (605) 352– 3455, TDD (334) 279–3495, James B. Harris 337–6635 (ext. 1609), TDD (517) 337–6795, 1147, Dwight Wullweber Alaska State Office, 800 West Evergreen, Philip Wolak Tennessee State Office, Suite 300, 3322 West Suite 201, Palmer, AK 99645, (907) 745– Minnesota State Office, 410 AgriBank End Avenue, Nashville, TN 37203–1084, 2176, TDD (907) 745–6494, Ron Abbott Building, 375 Jackson Street, St. Paul, MN (615) 783–1375, G. Benson Lasater Arizona State Office, Phoenix Corporate 55101–1853, (651) 602–7823, TDD (651) Texas State Office, Federal Building, Suite Center, 3003 N. Central Ave., Suite 900, 602–3799, Mary Ann Erickson 102, 101 South Main, Temple, TX 76501, Phoenix, AZ 85012–2906, (602) 280–8755, Mississippi State Office, Federal Building, (254) 742–9760, TDD (254) 742–9712, TDD (602) 280–8701, Steve Langstaff Suite 831, 100 W. Capitol Street, Jackson, Eugene G. Pavlat
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Utah State Office, Wallace F. Bennett Federal feasibility review and perform site visit; Section 514 new construction loan Building, 125 S. State Street, Room 4311, begin environmental review. funds and section 516 new construction Salt Lake City, UT 84147–0350, (801) 524– August 2, 1999: Based on the grant funds will be distributed to States 4323, TDD (801) 524–3309, Robert L. preliminary eligibility and feasibility Milianta based on a national competition, as Vermont and New Hampshire State Office, review, State Offices provide final list of follows: City Center, 3rd Floor, 89 Main Street, scored and ranked preapplications to 1. States will accept, review, score, Montpelier, VT 05602, (802) 828–6020, the National Office with review and rank requests in accordance with 7 TDD (802) 223–6365, Russell Higgins comments. CFR part 1944, subpart D. The scoring Virgin Islands—Served by Florida State August 2–6, 1999: National Office criteria includes an optional Agency Office ranks preapplications nation-wide. As initiative, which will not be used this Virginia State Office, Culpeper Building, soon as possible thereafter, National fiscal year. Suite 238, 1606 Santa Rosa Road, Office notifies States of requests Richmond, VA 23229, (804) 287–1582, 2. The National office will rank all TDD (804) 287–1753, Carlton Jarratt selected for further processing. requests nationwide and distribute Washington State Office, 1835 Black Lake August, 1999: Upon National Office funds to States in rank order, within Blvd. SW., Suite B, Olympia, WA 98512– notification, States immediately notify funding and RA limits. If insufficient 5715, (360) 704–7707, TDD (360) 704– selected applicants to submit a formal funds or RA remain for the next ranked 7760, Deborah Davis application within 30 days. Applicants proposal, the Agency will select the Western Pacific Territories—Served by should submit organizational next ranked proposal that falls within Hawaii State Office documents immediately to allow time the remaining levels. West Virginia State Office, Federal Building, for review by Office of General Counsel 75 High Street, Room 320, Morgantown, (OGC). II. Funding Limits WV 26505–7500, (304) 291–4793, TDD August-September, 1999: States (304) 284–5941, Sue Snodgrass A. Individual requests may not exceed Wisconsin State Office, 4949 Kirschiling complete the environmental review and $2.5 million (total loan and grant). appraisal. Satisfactory completion of the Court, Stevens Point, WI 54481, (715) 345– B. No State may receive more than 30 environmental review must occur prior 7620, TDD (715) 345–7614, Sherry Engel percent of the total available funds. Wyoming State Office, 100 East B, Federal to issuance of the letter of conditions. Building, Room 1005, PO Box 820, Casper, September 15, 1999: Deadline for C. New construction RA will be held WY 82602, (307) 261–6315, TDD (307) receipt of formal application. Deadline in the National Office for use with 261–6333, Charles E. Huff for commitment of leveraged funds. section 514 loans and section 516 grants. FOR FURTHER INFORMATION CONTACT: For September 24, 1999: Deadline for general information, applicants may issuing letter of conditions and III. Application Process contact Linda Armour, Mary Fox, or acceptance by borrower. The Rural Housing Service has Tracee Lilly, Senior Loan Officers, September 27, 1999: Deadline for loan published elsewhere in this Federal Multi-Family Housing Processing or grant approval and obligation of Register a final rule entitled ‘‘Processing Division, Rural Housing Service, United funds. Requests for Farm Labor Housing (LH) States Department of Agriculture, Stop Discussion of Notice Loans and Grants’’. Loan requests filed 0781, 1400 Independence Avenue, SW, in response to this NOFA are subject to Washington, DC, 20250, telephone (202) I. Authority and Distribution the regulatory provisions with respect to 720–1604 (voice) (this is not a toll free Methodology this final rule. All applications for number) or (800) 877–8339 (TDD- A. Authority sections 514 and 516 new construction Federal Information Relay Service). The farm labor housing program is funds must be filed with the appropriate SUPPLEMENTARY INFORMATION: under the Housing Act of 1949: section Rural Development State office and Programs Affected 514 (42 U.S.C. 1484) for loans and must meet the requirements of 7 CFR The Farm Labor Housing Program is section 516 (42 U.S.C. 1486) for grants. part 1944, subpart D, and section IV of listed in the Catalog of Federal Domestic Tenant subsidies (rental assistance, or this NOFA. Incomplete applications Assistance under Number 10.405, Farm RA) are available through section 521 will not be reviewed and will be Labor Housing Loans and Grants. Rental (42 U.S.C. 1490a). Sections 514 and 516 returned to the applicant. No Assistance is listed in the Catalog under provide RHS the authority to make application will be accepted after 5:00 Number 10.427, Rural Rental Assistance loans and grants for financing off-farm p.m., local time, on the application Payments. housing to broad-based nonprofit deadline previously mentioned unless organizations, nonprofit organizations of that date and time is extended by NOFA Application and Processing farmworkers, federally recognized another Notice published in the Federal Deadlines Indian tribes, agencies or political Register. subdivisions of State or local The NOFA application period closes IV. Application Submission government, and public agencies (such July 15, 1999. Because of the relatively Requirements short timeframe for processing selected as local housing authorities). In loan requests to permit obligation of addition, RHS is authorized under A. Each application shall include all funds by September 30, 1999, we have section 514 to make loans to finance off- of the information, materials, forms and established the following processing farm housing to limited partnerships in exhibits required by 7 CFR part 1944, deadlines: which the general partner is a nonprofit subpart D, as well as comply with the July 15, 1999: NOFA application entity. provisions of this NOFA. Applicants are encouraged, but not required, to include period closes. B. Distribution Methodology July 16–20, 1999: State Offices review a checklist and to have their applications for completeness; score and The amounts available for fiscal year applications indexed and tabbed to rank; and provide list of all applications (FY) 1999 for off-farm new construction facilitate the review process. The Rural received to National Office. are: Development State office will base its July 21–30, 1999: State Offices Section 514 loans...... $ 15,500,000 determination of completeness of the complete preliminary eligibility and Section 516 grants...... $ 9,737,493 application and the eligibility of each
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SECURITIES AND EXCHANGE The proposed amendments and new Management, Securities and Exchange COMMISSION rule would establish new standards Commission, 450 5th Street NW, governing the maintenance of an Washington DC 20549–0506. 17 CFR Part 270 investment company’s assets with a SUPPLEMENTARY INFORMATION: The foreign securities depository. [Release Nos. IC±23814, IS±1193; File No. Commission is extending the S7±23±95] DATES: The effective date of the rule compliance date for certain RIN 3235±AE98 amendments published on May 16, 1997 amendments to rule 17f–5 (17 CFR (62 FR 26923) remains June 16, 1997. 270.17f–5) under the Investment Custody of Investment Company Effective May 1, 1999, the compliance Company Act of 1940 (15 U.S.C. 80a) Assets Outside the United States; date for those rule amendments, except (the ‘‘Investment Company Act’’). In a Extension of Compliance Date for the amended definition of an companion release, the Commission is ‘‘eligible foreign custodian,’’ is extended proposing amendments to rule 17f–5, a AGENCY: Securities and Exchange from May 1, 1999 until May 1, 2000, or new rule 17f–7, and conforming Commission. until a date to be announced by the amendments to rule 7d–1 (17 CFR ACTION: Final rule; extension of Commission when it takes further action 270.7d–1) and rule 17f–4 (17 CFR compliance date. on the amendments proposed in the 270.17f–4) under the Investment companion release. The compliance SUMMARY: The Commission is extending Company Act. See Investment Company the compliance date for certain date for the amended definition of an Act Release No. 23815 (Apr. 29, 1999). amendments to the rule under the ‘‘eligible foreign custodian’’ was June 16, 1998. Dated: April 29, 1999. Investment Company Act that governs By the Commission. the custody of investment company FOR FURTHER INFORMATION CONTACT: Margaret H. McFarland, assets outside the United States. In a Thomas M.J. Kerwin, Senior Counsel, or companion release, the Commission is C. Hunter Jones, Assistant Director, Deputy Secretary. proposing amendments to that rule, and Office of Regulatory Policy, at (202) [FR Doc. 99–11356 Filed 5–5–99; 8:45 am] is proposing a new rule under the Act. 942–0690, in the Division of Investment BILLING CODE 8010±01±P
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SECURITIES AND EXCHANGE 17f–7, and conforming amendments to regarding the delegation of authority COMMISSION rule 7d–1 (17 CFR 270.7d–1) and rule under the rule. Decisions to maintain 17f–4 (17 CFR 270.17f–4) under the assets with the depository should be 17 CFR Part 270 Investment Company Act of 1940 (15 made by the adviser, subject to the U.S.C. 80a) (the ‘‘Investment Company oversight of the fund board, based upon [Release Nos. IC±23815, IS±1194; File No. Act’’). In a companion release, the information provided by the global S7±15±99] Commission also is extending the custodian. The adviser and board, in RIN 3235±AH55 compliance date for previous making these decisions, would be amendments to rule 17f–5 (except for subject to the standards of care that are Custody of Investment Company the amended definition of an ‘‘eligible generally applicable to fund advisers Assets Outside the United States foreign custodian’’) that were published and directors. on May 16, 1997 (62 FR 26923). The AGENCY: Securities and Exchange I. Introduction Commission. compliance date is extended from May 1, 1999 until May 1, 2000, or until a Rule 17f–5 was initially adopted in ACTION: Proposed rule. date to be announced by the 1984,2 and extensively revised in 1997 SUMMARY: The Commission is proposing Commission when it takes further action (‘‘1997 Amendments’’) to reflect rule amendments and a new rule under on the amendments proposed in this significant developments in foreign the Investment Company Act to address Release. See Investment Company Act investment by U.S. funds and the the custody of investment company Release No. 23814 (Apr. 29, 1999). Commission’s greater experience with foreign custodial arrangements.3 The assets outside the United States. The I. Executive Summary amendments and new rule would 1997 Amendments expanded the types establish new standards governing the Rule 17f–5 under the Investment of foreign banks and securities maintenance of an investment Company Act governs the custody of the depositories that may serve as company’s assets with a foreign assets of registered management custodians of fund assets by eliminating investment companies (‘‘funds’’) with capital requirements and other securities depository. The proposals are custodians outside the United States. restrictions that in some cases had designed to provide a workable We amended the rule in 1997 to precluded funds from using otherwise framework under which an investment modernize its conditions, but later suitable custodians.4 Instead, the 1997 company can protect its assets while suspended the compliance date for Amendments require that the selection maintaining them with a foreign some of the amendments after learning of a foreign custodian be based on securities depository. that they presented problems for the use whether the fund’s assets will be subject DATES: Comments must be received on of foreign securities depositories. to reasonable care if maintained with or before July 15, 1999. Depositories are systems for the central that custodian, after consideration of all ADDRESSES: Comments should be handling of securities in which factors relevant to the safekeeping of submitted in triplicate to Jonathan G. transactions in securities are processed fund assets.5 Katz, Secretary, Securities and Exchange through adjustment of electronic The 1997 Amendments also Commission, 450 5th Street, NW, account records rather than delivery of eliminated from rule 17f–5 the Washington, DC 20549–0609. certificates. consideration of ‘‘prevailing country Comments also may be submitted The Commission is proposing risks,’’ i.e., risks associated with electronically to the following E-mail amendments to rule 17f–5 and a new investing in a particular country rather address: [email protected]. All rule 17f–7, which together would permit than placing assets with a particular comment letters should refer to File No. funds to maintain their assets in foreign custodian, as well as the consideration S7–15–99; this file number should be securities depositories based on of other investment risks.6 We made included on the subject line if E-mail is conditions that reflect the operations these changes after concluding that used. Comment letters will be available and role of these depositories. The prevailing country risks were akin to for public inspection and copying in the amendments would eliminate for investment risks, and that both should Commission’s Public Reference Room, foreign depository arrangements the be considered by a fund’s board or 450 5th Street, NW, Washington, DC requirements that certain findings be investment adviser when deciding 20549. Electronically submitted made by the fund board, its investment whether the fund should invest in a comment letters will be posted on the adviser, or global custodian, and that Commission’s Internet web site (http:// certain specified terms appear in 2 Section 17(f) of the Investment Company Act, www.sec.gov). depository rules for participants. which governs fund custody arrangements, does not address the use of a foreign custodian. The FOR FURTHER INFORMATION CONTACT: Instead, the proposed rule would Commission adopted rule 17f–5 pursuant to its Thomas M.J. Kerwin, Senior Counsel, or establish basic standards for foreign exemptive authority under section 6(c) of the Act. C. Hunter Jones, Assistant Director, depositories eligible to be used by See Exemption for Custody of Investment Company funds, and generally require that a Assets Outside the United States, Investment Office of Regulatory Policy, at (202) Company Act Release No. 14132 (Sept. 7, 1984) (49 942–0690, in the Division of Investment fund’s contract with its global custodian FR 36080 (Sept. 14, 1984)) (the ‘‘1984 Release’’). Management, Securities and Exchange obligate the custodian to provide the 3 See Custody of Investment Company Assets Commission, 450 5th Street NW, fund or its adviser with an initial risk Outside the United States, Investment Company Act Washington DC 20549–0506. analysis of the depository, continuously Release No. 22658 (May 12, 1997) (62 FR 26923 monitor risks associated with use of the (May 16, 1997)) (the ‘‘1997 Release’’). SUPPLEMENTARY INFORMATION: The 4 1997 Release, supra note 3, at text Securities and Exchange Commission depository, and notify the fund or its accompanying nn.71–73 and nn.77–79. (‘‘Commission’’) today is proposing for adviser of material changes in these 5 See rule 17f–5(c)(1). These provisions replaced public comment amendments to rule risks. The global custodian also earlier standards under which the fund board had determined whether maintaining assets with a 17f–5 (17 CFR 270.17f–5),1 a new rule generally would have to agree to exercise reasonable care with respect to custodian would be ‘‘consistent with the best interests’’ of the fund. See 1997 Release, supra note 1 Unless otherwise noted, all references to ‘‘rule these and other duties. 3, at n.6 and accompanying text. 17f–5’’ or any paragraph of the rule will be to 17 Unlike rule 17f–5, proposed rule 17f– 6 1997 Release, supra note 3, at text CFR 270.17f–5. 7 would not contain any provisions accompanying nn.13–16 and at n.29.
VerDate 26-APR-99 12:53 May 05, 1999 Jkt 183247 PO 00000 Frm 00001 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.055 pfrm01 PsN: 06MYP5 24490 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules particular country. Finally, the determinations of whether foreign submissions, and is persuaded that the amendments permitted directors to play securities depositories would exercise 1997 Amendments do not work well a more traditional oversight role by reasonable care with fund assets.13 when applied to foreign securities allowing them to delegate their duties On May 21, 1998, we suspended the depositories. Some contract provisions under the rule to a ‘‘foreign custody compliance date for most of the 1997 generally required by the amended rule manager,’’ which could include the Amendments to allow time for to protect fund assets may not be fund’s investment adviser, officers, or a representatives of funds and custodians feasible when applied to depository bank.7 to submit suggested amendments to rule rules.18 We are not persuaded, however, The 1997 Amendments altered the 17f–5.14 In June 1998, representatives of that the ICI/Bank Proposal provides a conditions under which funds could funds and representatives of bank solution. We are concerned that a rule maintain their assets with foreign custodians submitted a joint proposal to that relied only on limited objective securities depositories as well as other further amend the rule (‘‘ICI/Bank criteria may not adequately identify the types of foreign custodians. Throughout Proposal’’).15 The ICI/Bank Proposal potential risks of depository the rulemaking, the Commission made it would deem fund assets maintained arrangements in a changing global clear that we considered foreign with a depository to be subject to marketplace. We are particularly depositories to be custodians for reasonable care if eight objective criteria reluctant to implement a proposal that purposes of the rule.8 In response to were met.16 Depository rules would not might unduly narrow the evaluation of comments on the proposals, the 1997 have to contain provisions that rule 17f– potential risks, and reduce incentives to Amendments looked to depository rules 5 generally requires to be included in provide relevant information to funds.19 for participants rather than custodial custody contracts, including provisions The Commission proposes to take a contracts to satisfy certain conditions of for indemnification or insurance.17 different approach in a proposed new the rule.9 Having addressed what we The Commission has reviewed the rule with respect to foreign securities believed to be commenters’ concerns ICI/Bank Proposal and related depositories. In doing so, we recognize regarding depositories, we established a that the establishment of depositories in one-year transition period to allow 13 Id. In general, representatives of funds and countries around the world is generally funds and bank custodians to enter into bank custodians have asserted that depositories a favorable development for funds and provide a necessary service for which no feasible new custodial agreements, which would alternative may exist, that depository standards their shareholders. The use of include the use of foreign vary from one country to another, that information depositories simplifies the clearance depositories.10 about quasi-sovereign depositories may be more and settlement of securities By early 1998, it became apparent that difficult to obtain than information about other transactions, and may eliminate some foreign custodians, and that inflexible depository the rule would not operate as rules may not accommodate the contract terms or risks of loss, theft, and destruction of anticipated. Bank custodians refused to equivalent protections required by the 1997 securities held in certificate form.20 accept delegated responsibility to make Amendments. See id.; Letter to Barry P. Barbash, Depositories in many countries, findings under the rule regarding funds’ Director, Division of Investment Management, from however, are relatively new institutions, Amy B.R. Lancellotta, Senior Counsel, Investment use of most foreign securities Company Institute and Daniel L. Goelzer, Baker & and their financial strength and 11 depositories. Representatives of funds McKenzie (June 30, 1998) (placed in File No. S7– operational capabilities vary. Only a requested that we delay the compliance 15–99) (the ‘‘June 1998 Letter’’). limited group of intermediaries, date for the 1997 Amendments to permit 14 See Custody of Investment Company Assets including global custodians and local them to prepare a proposal to further Outside the United States, Investment Company Act banks that participate directly in 12 Release No. 23201 (May 21, 1998) (63 FR 29345 amend the rule. They asserted that (May 29, 1998)). The compliance date for the depositories, may have any contractual many funds had been unable to amended definition of ‘‘eligible foreign custodian’’ relationship with a depository or the establish foreign custody arrangements remained June 16, 1998. ties needed to monitor risks associated under the amendments because of 15 See June 1998 Letter, supra note 13. with the use of the depository. significant unforeseen problems with 16 The criteria would require that no foreign Our new approach can best be regulators have issued public statements indicating the evaluation and use of most that the depository has not complied with financial explained by reference to the regulatory depositories. In particular, they stated strength or internal controls requirements (unless discussion that preceded the 1997 that global bank custodians were unable the problem has been cured); that the depository Amendments. Those amendments to commit to making ‘‘subjective’’ maintain certain safeguards such as segregating distinguished between the ‘‘custody depository assets from participant assets, risks’’ of maintaining assets overseas, identifying assets in depository records, providing 7 See rule 17f–5(b); 1997 Release, supra note 3, at account reports to participants, and undergoing which must be addressed by a fund’s text accompanying n.21. periodic review by auditors or regulators; and that foreign custody manager, and 8 Custody of Investment Company Assets Outside the fund’s custodian agree to comply with the ‘‘prevailing country risks,’’ which no the United States, Investment Company Act Release depository’s requirements. June 1998 Letter, supra longer had to be considered under the No. 21259 at n.71 and accompanying text (July 27, note 13. 1995) (60 FR 39592 (Aug. 2, 1995)); 1997 Release, Representatives of funds and bank custodians rule because we believed they were supra note 3, at n.29 and accompanying text. submitted a revised proposal on February 26, 1999. more appropriately considered by a 9 1997 Release, supra note 3, at nn.65–66 and See Letter to Paul F. Roye, Director, Division of accompanying text. In response to comments, we Investment Management, from Amy B.R. 18 See June 1998 Letter, supra note 13 also did not adopt proposed amendments that Lancellotta, Senior Counsel, Investment Company (accompanying appendix suggests that contractual would have treated the selection of some types of Institute and Daniel L. Goelzer, Baker & McKenzie provisions for indemnification or insurance, no depositories differently from the selection of other (Feb. 26, 1999) (placed in File No. S7–15–99) (the liens, free transferability of assets, and auditor types of foreign custodians. Id. at n.29. ‘‘Revised ICI/Bank Proposal’’). Under the Revised access might be unworkable for depository 10 Id. at text following n.86. ICI/Bank Proposal, the foreign custody manager custody). It is unclear whether other provisions 11 See Letter to Douglas J. Scheidt, Chief Counsel, would consider information known to it if the might provide equivalent protection. See rule 17f– Division of Investment Management, from Dorothy information established certain compliance 5(c)(2)(ii). M. Donohue, Associate Counsel, Investment problems, even if foreign regulators had not yet 19 We are also concerned that the terms of such Company Institute (Nov. 24, 1997) (placed in File acted. In addition, the foreign custody manager a rule could be used to delimit responsibility under No. S7–15–99). would have to monitor depository arrangements for custodial contracts. 12 See Letter to Barry P. Barbash, Director, any material changes. 20 See Uniform Commercial Code, Revised Article Division of Investment Management, from Dorothy 17 See rule 17f–5(c)(2)(i) and (ii) (requiring 8, Prefatory Note at I.C.; Randall D. Guynn, M. Donohue, Associate Counsel, Investment specified terms, or other provisions that provide Modernizing Securities Ownership, Transfer and Company Institute (Mar. 24, 1998) (placed in File equivalent protection, to appear in custody Pledging Laws 21 (Capital Markets Forum, No. S7–15–99) (the ‘‘March 1998 Letter’’). contract). International Bar Association 1996).
VerDate 26-APR-99 12:53 May 05, 1999 Jkt 183247 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.056 pfrm01 PsN: 06MYP5 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24491 fund’s adviser or board of directors as make other minor clarifying changes.25 1. Eligible Securities Depository part of the decision to invest in the Compliance with the 1997 Amendments Under the proposed rule, funds or 21 country. A securities depository keeps to rule 17f–5 (except for the amended their custodians could maintain their asset ownership records that might be definition of Eligible Foreign Custodian) assets with a securities depository only tampered with or destroyed, and the use will continue to be suspended until we if it is an ‘‘Eligible Securities of a depository thus exposes a fund to complete consideration of new rule 17f– Depository.’’ An Eligible Securities 22 custody risks. Yet a securities 7.26 We request comment on whether Depository must function as a system depository also may be an any further amendments to rule 17f–5 for the central handling of securities, instrumentality of a foreign government are necessary. and must be regulated by a foreign or market and may operate under an When a depository custody financial regulatory authority.29 The exclusive license, making its use arrangement involves a foreign bank Commission also is proposing four practically (and perhaps legally) additional minimum requirements, necessary for a fund that wishes to subcustodian that participates in the depository, rule 17f–5 would continue which were suggested to us by invest in a particular foreign market. As representatives of funds and bank a result, a custody decision not to use to apply to the global custodian’s use of the foreign bank subcustodian, while custodians. To be an Eligible Securities a foreign depository because of custody Depository under rule 17f–7, a risks may effectively compel an proposed rule 17f–7 would apply to the depository must, among other investment decision not to invest in the foreign bank subcustodian’s use of the depository itself.27 Is the interaction requirements: country. • Hold assets on behalf of the fund While global custodians ‘‘are in the between rule 17f–5 and proposed rule under conditions no less favorable than best position to obtain information 17f–7 in regulating these respective custody arrangements sufficiently clear? those that apply to other participants; concerning depositories and to evaluate • Maintain records identifying the whether that information suggests that a If not, what further clarification is needed? assets of each participant and keep its change in custody conditions has own assets separated from those of the occurred at the depository,’’23 the B. Foreign Securities Depositories: participants; decision to maintain assets with the Proposed Rule 17f–7 • Provide periodic reports to depository remains closely linked to the participants; and decision to invest or continue to invest Proposed rule 17f–7 would govern • Be reviewed periodically by in the country. Investment decisions are custody arrangements with foreign regulatory authorities or independent more appropriately the province of the securities depositories. Funds usually accountants.30 fund’s investment adviser or board of deal with these depositories through a Comment is requested on the directors. Nevertheless, the adviser and ‘‘Primary Custodian’’ (also often referred proposed criteria. Inclusion of these the board are in a position to make these to as a ‘‘global custodian’’), which the minimum requirements may have the decisions only if fully informed of the rule would define as a U.S. Bank or effect of precluding funds from custody risks by the fund’s global Qualified Foreign Bank (under rule 17f– investing in some developing markets in custodian. Based on these conclusions, 5) that contracts directly with the fund which depositories might fail to meet we are amending rule 17f–5 and to provide custodial services for foreign the criteria. The existence of the rule proposing a new rule designed to create assets.28 As discussed below, the rule provisions also may encourage a partnership between a fund adviser would assign particular duties to the depositories in these markets to meet and a global custodian in which each Primary Custodian. these requirements. Comment is performs responsibilities appropriate to requested as to their effect on its expertise for the purpose of by relevant provisions of rule 17f–5, which would investment in developing markets. protecting fund assets placed with the remain applicable to foreign bank subcustodians Comment also is requested on whether foreign depository. participating in these arrangements. Rule 17f–7 these minimum standards, together with would include a similar note. the other protections described below, II. Discussion 25 The amendments would use the term ‘‘foreign are sufficient to protect fund assets. A. Foreign Bank Custodians: Rule 17f– assets’’ in place of ‘‘fund assets’’ for convenience, and to clarify that assets maintained with a foreign With respect to the periodic review 5 custodian may not be the exclusive property of the requirement, should the rule require Under our proposal, a fund’s use of a fund. See Uniform Commercial Code, Revised review by regulators or auditors to focus Article 8, section 8–503(b) and comment 1 foreign bank custodian would continue (entitlement holder’s property interest in securities on the depository’s custodial activities, to be governed by rule 17f–5, as held by its securities intermediary is a pro rata or to include verifications of assets amended in 1997. interest shared with other customers of the held? The ICI/Bank Proposal included We propose to further amend this rule intermediary). three other minimum requirements that to exclude foreign securities The amendments also would refer to ‘‘maintaining assets with’’ an eligible foreign are not included in proposed rule 17f- 24 31 depositories from its coverage, and to custodian rather than ‘‘selecting’’ a custodian, and 7. Should the rule include them? Are would use the term ‘‘eligible foreign custodian’’ 21 1997 Release, supra note 3, at text throughout the rule. In addition, the amendments 29 Proposed rule 17f–7(b)(1)(i) and (ii). The accompanying nn.13–16 and at n.29. would note that the fund’s foreign custody manager, definition of an Eligible Securities Depository 22 Thus, securities depositories were included in as well as the fund itself, may place and maintain would combine elements of two related definitions the ‘‘selection process’’ of rule 17–5, as amended in fund assets with an eligible foreign custodian. See in current rule 17f–5. See current rule 17f–5(a)(1)(ii) 1997. See Letter to Dorothy M. Donohue, Associate proposed rule 17f–5. and (iii) (definitions of certain Eligible Foreign Counsel, Investment Company Institute and Daniel 26 See ‘‘Supplementary Information’’ section Custodians that are securities depositories or L. Goelzer, Baker & McKenzie, from Robert E. Plaze, supra; Custody of Investment Company Assets clearing agencies) and (a)(6) (definition of Securities Associate Director, Division of Investment Outside the United States; Extension of Compliance Depository). Management (Feb. 19, 1998) (placed in File No. S7– Date, Investment Company Act Release No. 23814 30 Proposed rule 17f–7(b)(1)(iii) to (vi). The 15–99). (Apr. 29, 1999); Custody of Investment Company proposed requirements address five of the 23 See Revised ICI/Bank Proposal, supra note 16, Assets Outside the United States, Investment requirements suggested in the ICI/Bank Proposal. Attachment 3 at 3. Company Act Release No. 23670 (Jan. 28, 1999) (64 See supra note 16. 24 A proposed note to rule 17f–5 would clarify FR 5156 (Feb. 3, 1999)); see also supra note 14. 31 The ICI/Bank Proposal also required that (i) no that custody arrangements involving securities 27 See supra note 24. foreign regulators have issued public statements depositories would be governed by rule 17f–7 and 28 Proposed rule 17f–7(b)(2). Continued
VerDate 26-APR-99 12:53 May 05, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\A06MY2.058 pfrm01 PsN: 06MYP5 24492 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules there other minimum requirements that Depository. Is it appropriate to treat against all custodial losses of a funds or their custodians typically insist transfer agents as Eligible Securities depository arrangement is not exposed on before placing assets with a Depositories in these circumstances? to the risks of using the depository depository? Instead of the proposed Should other requirements be added if (which are transferred to the approach, should the definition state a transfer agent is to be treated as a indemnifying or insuring party), and generally that a depository should meet depository? To avoid confusion about therefore the risk analysis, monitoring, minimum reasonable commercial whether a transfer agent performs all of and notification requirements discussed standards, and then specify some but the functions of a depository, should the below may not be necessary. The not all applicable requirements? rule define a broader type of entity, such Commission requests comment on this In some foreign securities markets, as an ‘‘eligible securities holding approach. Should the rule define the transfer agents or similar entities may facility,’’ and permit funds to maintain types of custody risks that should be perform custodial functions analogous foreign assets with either a depository or covered? Should the rule specify how to those of a depository. For example, an a transfer agent that qualifies as this the fund would determine that Australian central electronic subregistry type of facility? In the alternative, indemnification or insurance is may effectively function as a central should the rule omit any provision for adequate to protect the fund against all transfer agent that performs custody the use of foreign transfer agents, and losses attributable to custody risks? Are functions in a manner similar to a require funds and custodians to seek there any reasons why indemnification depository.32 In Russia and other approval for their use on a case-by-case or insurance could not cover all custody countries such as the Ukraine, registrars basis? risks? Should the rule permit a for each issuer may perform analogous determination that more limited 33 2. Risk-Limiting Conditions custody functions. The proposed coverage may be adequate in some amendments would define an Eligible Proposed rule 17f–7 would provide circumstances? Securities Depository to include a two alternative approaches to managing transfer agent that, among other things, the custody risks that funds may face b. Risk Analysis, Monitoring, and transfers and holds uncertificated when they maintain assets with an Notification securities on the books of an issuer for Eligible Securities Depository. Under the second alternative, the market participants.34 The transfer agent fund’s contract with its Primary would have to be regulated by a foreign a. Indemnification or Insurance Custodian must require the custodian to financial regulatory authority, and meet Under the first alternative, a fund provide the fund or its investment other minimum standards for securities could obtain indemnification or adviser an initial risk analysis of the depositories as discussed above. insurance that adequately protects it The Commission requests comment against all custody risks of using the custody risks of using a depository on the proposed expansion of the 35 before the fund places its assets with the depository. A fund would be 38 definition of an Eligible Securities ‘‘adequately protected’’ under this depository. The contract also must provision by an agreement with or require the Primary Custodian to indicating that the depository has not complied policy issued by a reliable party to continuously monitor these custody with financial strength requirements or (ii) internal compensate the fund for any custody risks and promptly notify the fund or its controls requirements, unless the problem has been losses arising from use of the investment adviser of any material cured, and (iii) that the custodian for the fund has change.39 These provisions are designed agreed to comply with the depository’s depository.36 A fund could rely on this requirements. alternative with respect to all of its to allocate responsibilities for 32 Thomas Murray Ltd, Central Securities overseeing the safety of fund assets to Depositories Guide 1997 at 49. The Australian assets maintained in foreign securities depositories or with respect to assets the parties best suited to the tasks ‘‘CHESS’’ system supplements issuers’ own share involved. registers. It records market transactions as transfers held by a particular depository.37 of legal ownership on the issuer’s records. Although This alternative would recognize that In earlier commentary on rule 17f–5, local law may not treat CHESS as a custodian, a fund that is indemnified or insured representatives of funds argued that CHESS may effectively perform custodial functions by holding definitive evidence of the ownership of because of global custodians’ expertise securities that do not exist in certificate form Cf. 35 Proposed rule 17f–7(a)(1). Potential custody and their contractual relationships with ASX Settlement and Transfer Corporation Pty Ltd, risks of using a depository might include, for depositories or their participants, SEC No-Action Letter (Apr. 19, 1994) (suggesting example, faults in recordkeeping systems or that CHESS system may not perform custodial securities handling procedures or systems for custodians were in a better position to functions); rule 17f–4(a) under the Investment distributing losses among participants. See infra make findings regarding the use of Company Act (17 CFR 270.17f–4(a)) (defining a text accompanying notes 44 to 48 (list of factors that depositories.40 Global custodians securities depository as a system for the central may be relevant to custody risks). disagreed, arguing that the decision to handling of securities where all securities of any 36 Current rule 17f–5 requires a contract with a particular class or series of any issuer deposited foreign custodian to provide for indemnification or use a depository, because it is often a within the system are treated as fungible and may insurance (or equivalent protections) that prerequisite for participation in a be transferred or pledged by bookkeeping entry adequately protect the fund against the loss of particular foreign market, is an without physical delivery of the securities). assets held under the contract. Rule 17f– 33 See Thomas Murray Ltd. Worldwide Securities 5(c)(2)(i)(A) and (ii): see also 1997 Release, supra Market Report (19)97, at 247 (1996). In Russia, note 3, at text accompanying n.27 (foreign custody 38 Proposed rule 17f–7(a)(2)(i)(A). Cf. United equity securities are generally uncertificated, and manager itself may have obligation to indemnify the Kingdom Securities and Futures Authority, Board entries on the registrar’s books are generally fund in some circumstances). The rule provision Notice 433, New Safekeeping Rules, Custody Rule recognized as the only binding evidence of the has been interpreted to bind the primary custodian 4–107(1), Assessment of Custodian (July 21, 1997) ownership of securities. The registrar may globally unless each subcustodian satisfies it (‘‘U.K. Custody Rule 4–107(1)’’) (before a custodial effectively act as a custodian by holding definitive individually, and to extend to all foreseeable risks firm or an arranger of custodial services holds a safe evidence of the ownership of securities that are of loss. Investment Company Institute, SEC No- custody investment with an eligible custodian, it uncertificated. See Templeton Russia Fund, Inc., Action Letter, at nn. 1–2 and accompanying text must undertake an appropriate risk assessment of SEC No-Action Letter (Apr. 18, 1995) (Suggesting (Nov. 4, 1987). In contrast, the first alternative, the custodian). that registrars may be limited participants in the discussed in the text above, would require coverage 39 Proposed rule 17f–7(a)(2)(i)(B). Cf. U.K. custodial process). of all custody losses. Custody Rule 4–107(1), supra note 38 (after firm 34 Proposed rule 17f–7(b)(1); cf. American 37 Protection available from the depository itself, makes an appropriate risk assessment of the eligible Pension Investors Trust, SEC No-Action Letter (Feb. such as a depository guarantee fund, normally custodian, it must undertake a continuing risk 1, 1991) (custodian for fund of funds could would not protect a beneficial owner such as the assessment). maintain fund’s investment in uncertificated shares fund, and may provide only for sharing or partial 40 E.g., Letter to Jonathan G. Katz, Secretary, of underlying funds with the domestic transfer reimbursement of losses. A government guarantee Securities and Exchange Commission, from Craig S. agents of those funds acting as deemed of a depository may suffice if the guarantee is Tyle, Vice President & Senior Counsel, Investment depositories); FundVest, SEC No-Action Letter complete and extends to beneficial owners as well Company Institute at 1, 3–4 (July 26, 1996) (place (Nov. 21, 1984) (similar position). as depository participants. in File No. S7–15–99).
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24493 investment decision more properly insurance arrangements, extent and (but the rule does not require) that a made by the fund or its investment quality of regulation or other fund board would delegate this adviser.41 Each of these views has merit independent examination,45 standing in responsibility to the fund’s adviser, and contributes to our proposed rule. published ratings,46 internal controls subject to the board’s general oversight. Proposed rule 17f–7 would assign to and other procedures for safeguarding Fund boards play an important role, the fund’s Primary Custodian the investments,47 and related legal however, in deciding whether to invest responsibility to analyze and monitor protections. Comment is requested on in or exit the markets of a particular the risks of using the depository, under whether the rule should specifically country.52 When custodial risks are a an approach that reflects provisions that require the analysis to cover these or material factor in a decision to enter or many custodial agreements may already other areas.48 exit a market, we would expect the contain.42 The Primary Custodian also Proposed rule 17f–7 would not assign adviser to inform the board of the risks would be required to agree to exercise a particular role to the investment based on analysis provided by the reasonable care and diligence in adviser or fund board, although it Primary Custodian.53 The rule does not performing these and other assumes that the investment adviser require, nor would we expect, fund responsibilities, as discussed below, but would generally determine whether to boards to continue to be provided with would not be required to make specific place fund assets with a depository the lengthy and detailed briefing books findings under the rule. Its obligations under the general oversight of the fund they often receive today. under the required contractual board. The rule is designed to assure The Commission requests comment provisions would be generally fulfilled that sufficient material information on the proposed provisions relating to by providing the adviser with an initial about depositories is provided to the risk analysis, monitoring, and analysis and an ongoing assessment of adviser in a timely manner. Decisions notification requirements. Should the the custody risks associated with the regarding whether to place fund assets rule permit a fund to use a primary use of the depository. A local with a depository would be made by the custodian that is also a securities subcustodian or other agent could adviser or board based on standards of depository 54 If it does, should the rule prepare the risk analysis on behalf of the care that are generally applicable to require the primary custodian/ Primary Custodian.43 fund advisers and directors.49 These depository to prepare the initial analysis The risk analysis requirements of the standards generally require the exercise of the custody risks of its own custody proposed rule are written broadly to of care, but do not strictly limit the risks arrangements (including arrangements provide custodians with flexibility to that may be acceptable in depository with its subcustodians) and to monitor tailor the risk analysis in proportion to arrangements in appropriate the risks 55 Should the rule require the risks involved in the use of each circumstances.50 another person to prepare the analysis particular depository. We would expect, Fund boards do not typically have the and monitor the risks? For example, for example, the Primary Custodian to expertise to make day-to-day decisions should the rule require the fund’s provide a more detailed analysis of a regarding foreign depository investment adviser to retain an less established depository than of a arrangements.51 Therefore, we assume independent custody consultant to depository with an extensive operating analyze and monitor the risks of any history. To facilitate the flexible depository financial strength that may be more depository arrangement in which the significant include the level of depository fund’s primary custodian is itself the application of the rule’s requirements to settlement guarantee funds, collateral requirements, different depository arrangements, the lines of credit, or insurance, as compared with depository? proposed rule does not specify participants’ daily settlement obligations. See Gary c. Exercise of Care particular types of risk that the Stephenson, Emerging Market Depositories: What to custodian should analyze, monitor, and Look For, at 6 (speech delivered in Bermuda on May Proposed rule 17f–7 also would 4, 1998) (place in File Not. S7–15–99). require under the second alternative report. 45 This factor relates to requirements in the As a general matter, we would expect definition of an Eligible Securities Depository. that the fund’s contract with its Primary that a custodian’s analysis could 46 These ratings may include evaluations or Custodian provide that the Primary include a discussion of the depository’s survey information published by sources such as Custodian, and each bank subcustodian Global Custodian or Thomas Murray Ltd, or more expertise and market reputation, quality formal ratings of depositories that may be available. 44 52 See 1997 Release, supra note 3, at n. 20 and of services, financial strength, 47 This factor related to requirements in the accompanying text. definition of an Eligible Securities Depository. 53 The Commission would expect that the primary 41 E.g., Letter to Jonathan G. Katz, Secretary, 48 See generally U.K. Custody Rule 4–107(1), custodian also would continue to provide other Securities and Exchange Commission, from Daniel supra note 38 (cites seven analogous factors to be information relating to country risk and other L. Goelzer, Baker & McKenzie at 3–5 (June 7, 1996) considered in undertaking continuing risk investment risks. See id. at nn. 18–20 and (place in File No. S7–15–99). assessments). accompanying text. 42 See e.g., Amendment No. 2 to Custody 49 See, e.g., Transamerica Mortgage Advisors, Inc. 54 Some foreign depositories may permit funds to Agreements between Templeton Funds and The v. Lewis, 444 U.S. 11 (1979) (section 206 of the use their services directly as clients or participants. Chase Manhattan Bank (July 23, 1998), filed with Investment Advisers Act (15 U.S.C. 80b–6) imposes See Simon Thomas and Simon Murray, Global Templeton Funds Inc. Form N–1A, Post-Effective fiduciary duties on investment advisers); Burks v. Securities Services: The Institutional Investors’ Amendment No. 31 (Oct. 29, 1998) (custodian Lasker, 441 U.S. 471 (1979) (Investment Company Guide 55, 90 (1995) (Euroclear has altered its rules would monitor compulsory depositories and advise Act entrusts independent directors with to permit fund mangers to participate); see generally fund of any material negative change in the responsibility to furnish an independent check on rule 17f–4(c) under the Investment Company Act performance of, or arrangements with, any management); American Law Institute, Principles of (17 CFR 270.17f–4(c)) (permitting a fund to compulsory depository that would adversely affect Corporate Governance: Analysis and participate directly in a domestic depository, the custody of assets); see also Revised ICI/Bank Recommendations § 4.01 (1994) (discussing duties subject to certain conditions); Midwest Securities Proposal, supra note 16 (suggesting that foreign of directors and officers under state law, including Trust Company, SEC No-Action Letter (Mar. 14, custody manager monitor whether any material duties of care and inquiry). 1990) (fund that participates directly in a change has occurred in fund custody arrangements 50 See id. The primary custodian’s analysis and depository may maintain a cash account to facilitate with depository). continuous monitoring of risks may help to provide settlement of transactions or to secure obligations 43 Proposed rule 17f–7(a)(2)(i). an ‘‘early warning system’’ concerning a depository to a reserve fund to cover participant defaults). 44 Representatives of funds and bank custodians custody arrangement that presents more risks than 55 A foreign depository may itself maintain suggest that capital may not be a reliable gauge of other arrangements. securities with other depositories. See Richard Dale, financial strength because depository capital levels 51 See SEC, Division of Investment Management, Clearing and Settlement Risks in Global Securities vary widely. See June 1998 Letter, supra note 13 Protecting Investors: A Half Century of Investment Markets: The Case of Euroclear, Journal of Business (accompanying appendix). Other measures of Company Regulation 270 n. 78 (1992). Law 434, 445 (Sept. 1998).
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 24494 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules in its network involved in a depository effect on the proposals contained in this responsibilities. Because the rule does arrangement, will agree to exercise Release. The Commission also requests not limit maximum custody risks in reasonable care, prudence, and comment whether the proposals, if depository arrangements, additional diligence in performing its duties under adopted, would promote efficiency, prospectus disclosure may be required the rule and in all other conduct relating competition, and capital formation. where it may be necessary for investors to the custodial arrangements, or to Comments will be considered by the to evaluate the risks and rewards of adhere to a higher standard of care.56 Commission as it satisfies its investing in the fund.62 The The proposed standard of care is the responsibilities under section 2(c) of the Commission requests comment on the same required of foreign custody Investment Company Act.60 For costs and benefits of current rule 17f–5, managers under rule 17f–5,57 and purposes of the Small Business including its requirement that a foreign similar to standards for U.S. custodians Regulatory Enforcement Fairness Act of custody manager determine that assets under commercial law.58 1996,61 the Commission also requests maintained with a depository will be information regarding the potential C. Request for Comment on Other Issues subject to reasonable care, as compared impact of the proposals on the U.S. with the costs and benefits of proposed The Commission requests comment economy on an annual basis. rule 17f–7’s provisions that do not set on possible additional changes to rule Commenters are requested to provide limits on potential depository custody 17f–5 and proposed rule 17f–7. For empirical data to support their views. risks. example, should the Commission Global custodians should not incur III. Cost-Benefit Analysis consider adapting the proposed materially greater costs under proposed requirements for the use of a depository The Commission is sensitive to the rule 17f–7, which generally would to apply to the use of a bank costs and benefits that result from its require them to perform duties they subcustodian as well, and eliminate the rules. The proposed amendments to rule typically perform already under separate requirements for the use of a 17f–5 and proposed new rule 17f–7 custodial contracts. The rule may have bank subcustodian? Because the fund’s respond to concerns expressed by global the effect of requiring global custodians Primary Custodian would likely act as custodians and fund managers that rule to exercise a greater degree of vigilance its foreign custody manager in most 17f–5, as amended in 1997, is not in monitoring depositories (or to refrain 59 cases, should the Commission simply workable. The proposals also address in the future from reducing their eliminate provisions that require the fund managers’ concerns that, as a result diligence) and in this respect may appointment of a foreign custody of global custodians’ unwillingness to impose costs. Such costs are necessary, manager, and allocate related assume delegated responsibilities under however, for the protection of funds responsibilities directly to the Primary rule 17f–5, obligations to evaluate consistent with the purposes of sections Custodian? Alternatively, should the depositories’ custodial capabilities may 6(c) and 17(f) of the Investment Commission not adopt the proposed fall to fund boards, which lack the Company Act. We expect that global amendments to rule 17f–5 and proposed relevant knowledge and expertise to custodians will pass on any additional rule 17f–7, and instead revise the make these evaluations. costs to mutual funds, but that the costs compliance date for the 1997 Proposed rule 17f–7 should benefit are unlikely to materially affect overall Amendments to allow funds to contract funds and their investors by establishing fund expense ratios. with global custodians that accept the a workable framework designed to Fund managers may bear the cost of responsibilities described in current require global custodians, which are in evaluating the information provided by rule 17f–5? Is there any need to address the best position to monitor and global custodians and making decisions matters outside the scope of the evaluate risks of foreign depositories, to regarding the continued use of a proposed amendments, such as the assume these responsibilities. The rule depository (and in this respect, handling of cash, or the use of affiliated also should benefit funds and their continued investment in the country). custodians or subcustodians? shareholders by freeing fund boards of We believe that in the context of foreign The Commission requests comment the responsibility to make findings depository arrangements, this allocation on the new rule and rule amendments concerning foreign depositories that of costs is appropriate in light of (i) the proposed in this Release, suggestions for often remained with them after the 1997 additional provisions or changes to unwillingness of global custodians to Amendments because of global assume responsibilities that may existing rules or forms, and comments custodians’ refusals to accept delegated on other matters that might have an overlap with investment decisions and responsibility. As a result, fund boards (ii) the extent to which the decision to should have more time to address other 56 use a foreign depository may affect an Proposed rule 17f–7(a)(2)(ii). issues that are important to investors. 57 Rule 17f–5(b)(3); see proposed rule 17f–5(b)(3) investment strategy that contemplates (same requirement); Revised ICI/Bank Proposal, The proposed rule and rule investment in a particular foreign supra note 16, Attachment 3 at 5 (‘‘(c)onsistent with amendments may impose costs. market. Advisers to funds could pass on that (reasonable care) standard, an FCM (foreign Although the proposed rule sets this responsibility to directors, but this custody manager) could not, in our view, place minimum requirements for depositories, assets with a depository that it knew to be unsafe’’). result would not be mandated by the 58 See Uniform Commercial Code, Revised Article its lack of a maximum standard for proposals, and fund directors would be 8, sections 8–504 and 8–509 (securities custody risks could cause losses to free to reject this responsibility. intermediary must perform its duties under Code, investors if a depository fails, despite The Commission requests comment including duties to follow procedures in diligent performance by global maintaining financial assets and to exercise care in on the potential costs and benefits selecting subcustodians, with ‘‘due care in custodians and advisers of their associated with the proposed accordance with reasonable commercial standards,’’ amendments and proposed rule, and on unless modified by regulatory requirements or 60 Section 2(c) of the Investment Company Act (15 any suggested alternatives to the contractual provisions that meet ‘‘good faith’’ U.S.C. 80a–2(c)) requires the Commission, when it 63 standard). engages in rulemaking and is required to consider proposals. Specific comment is 59 See Revised ICI/Bank Proposal, supra note 16, whether an action is consistent with the public Attachment 3 at 3 (‘‘global custodian banks * ** interest, to consider, in addition to the protection 62 See Form N–1A, Item 4(c) (requirement to are most likely to be asked to assume delegated of investors, whether the action will promote disclose principal risks of investing in fund). Foreign Custody Manager responsibilities in most efficiency, competition, and capital formation. 63 As noted in Section IV, the Commission’s staff cases’’). 61 Pub. L. No. 104–121, Title II, Stat. 857 (1996). estimates a slight reduction in the paperwork
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24495 requested on the potential costs or diligence, or to adhere to a higher annual burden associated with these benefits of these proposals for funds and standard of care. When the foreign requirements of the rule during the first their boards of directors, investment custody manager selects an eligible year would be approximately 13,440 advisers, primary custodians, foreign foreign custodian, it must determine hours (15 global custodians × 896 hours subcustodians, and depositories. Data is that the fund’s assets will be subject to per global custodian). Therefore, the requested concerning these costs and reasonable care if maintained with that total burden of all collection of benefits and how they could be custodian, and that the written contract information requirements of rule 17f–5 quantified and expressed in dollar that governs each custody arrangement during the first year after its amendment terms. will provide reasonable care for fund is estimated to be approximately 20,820 hours (7,380 + 13,440).68 IV. Paperwork Reduction Act assets. The contract must contain certain specified provisions or others The staff estimates that the proposed Portions of the proposed amendments that provide at least equivalent care. amendments’ removal of custody to rule 17f–5 and proposed new rule The foreign custody manager must arrangements involving securities 17f–7 contain ‘‘collection of establish a system to monitor the depositories from rule 17f–5 would information’’ requirements within the contract and the appropriateness of eliminate as much as 28,600 additional meaning of the Paperwork Reduction continuing to maintain assets with the burden hours currently imposed by the Act of 1995 (44 U.S.C. 3501–3520), and eligible foreign custodian. rule’s collection of information the Commission is submitting these requirements. This estimate assumes The Commission’s staff estimates that proposals to the Office of Management that without the amendments, during the first year after the proposed and Budget (‘‘OMB’’) for review in approximately 650 investment amendments go into effect, accordance with 44 U.S.C. 3507(d). The advisers 69 would have to make an approximately 3,690 fund portfolios 64 titles of the collections of information average of 3 responses per adviser are ‘‘Custody of Investment Company would be required to make an average annually, requiring a total of Assets Outside the United States’’ and of one response per portfolio under approximately 44 hours for each ‘‘Custody of Investment Company amended rule 17f–5, requiring adviser, to address depository Assets with a Foreign Securities approximately 2 hours of director time arrangements.70 Depository.’’ An agency may not per response, to make the necessary findings concerning foreign custody B. Proposed New Rule 17f–7 sponsor, conduct, or require responses 65 to an information collection unless it managers. The total annual burden Proposed new rule 17f–7 would displays a currently valid OMB control associated with these requirements of contain some collection of information number. the rule during the first year would be requirements. Under the proposed rule, approximately 7,380 hours (3,690 an eligible depository would have to × A. Proposed Amendments to Rule portfolios 2 hours per portfolio). The meet minimum standards for a 17f–5 staff further estimates that during the depository. The proposed amendments to rule first year after the proposed The fund or its investment adviser 17f–5 would not substantively change amendments go into effect, would generally determine whether the the rule’s collection of information approximately 15 global custodians 66 depository complies with those requirements, which would continue to would be required to make an average requirements based on information apply when a fund (i.e., a registered of 80 responses per custodian provided by the fund’s primary management investment company) concerning the use of foreign custodians custodian. The depository custody maintains its assets with a foreign bank other than depositories, requiring arrangement also would have to meet custodian. The amendments would approximately 10 hours per response, certain risk limiting requirements. The remove custody arrangements with plus one additional response per fund could obtain indemnification or foreign securities depositories from the custodian that requires approximately insurance arrangements that adequately rule, however, so that the rule’s 96 hours per response.67 The total protect the fund against custody risks. requirements would no longer apply to The fund or its investment adviser 64 these custody arrangements. In general, This information is based on data reported by generally would determine whether funds on Form N–SAR (17 CFR 274.101). indemnification or insurance provisions therefore, the proposed amendments 65 The staff estimates that these 3,690 portfolios would reduce the information collection are divided among approximately 1,327 registered are adequate. If the fund does not rely burdens of rule 17f–5. funds within approximately 650 fund complexes on indemnification or insurance, the The requirements of amended rule that may share the same investment adviser, board fund’s contract with its primary of directors, U.S. bank custodian, or all of these custodian would be required to state 17f–5 that may call for the collection of entities. Each board of directors and its delegates for information would be substantially the a fund complex could therefore meet rule 17f–5’s same as under the current rule. The requirements by simultaneously approving similar establish a system to monitor custody arrangements fund’s board of directors must find that arrangements for some 6 portfolios in the same for these clients. complex. The estimated hour amounts are based on 68 The number of responses may decline it is reasonable to rely on each delegate discussions with representatives of funds about the substantially after the first year because some it selects to act as the fund’s foreign burden of analogous requirements in another responses made during that year would suffice for custody manager. The delegate must custody rule. some time thereafter. agree to provide written reports that 66 This estimate is based on staff review of 69 See supra note 65. notify the board when the fund’s assets custody contracts and other research. 70 These estimates assume that one adviser 67 These estimates assume that each of 15 manages 6 portfolios, and that each adviser would are placed with a foreign custodian and custodians services an average of 250 client make 3 responses annually requiring a total of 44 when any material change occurs in the portfolios within 40 fund complexes, that a single hours to approve depository custody arrangements fund’s custody arrangements. The response by each custodian can simultaneously for each fund complex, report to fund boards, and delegate must agree to exercise address approximately 6 client portfolios in a fund establish a system to monitor depository complex, and that each custodian makes arrangements for the fund complex. The 44 hours reasonable care, prudence, and approximately 80 responses annually requiring 10 would include 10 hours spent to establish custody hours per response to establish bank custody arrangements with depositories and make burden. The Commission particularly invites arrangements for approximately 40 fund complexes ‘‘reasonable care’’ determinations, 24 hours spent to comment on the reasonableness to the staff’s burden and report to their fund boards, and one response monitor depository arrangements, and 10 hours estimates. annually requiring 96 hours per response to spent to report to fund boards.
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 24496 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules that the custodian will provide to the net effect of the proposed amendments V. Summary of Initial Regulatory fund or its investment adviser a custody and new rule may be to reduce the total Flexibility Analysis risk analysis of each depository, monitor annual paperwork burden by 350 hours: The Commission has prepared an risks on a continuous basis, and Initial Regulatory Flexibility Analysis promptly notify the fund or its adviser Paper- work (‘‘IRFA’’) in accordance with 5 U.S.C. of material changes in risks. The Rule 603 regarding the proposed primary custodian and other custodians burden hours amendments to rule 17f–5 and proposed also would be required to agree to new rule 17f–7, and conforming exercise reasonable care. Current rule 17f±5 ...... 49,420 The staff estimates that during the amendments to rules 7d–1 and 17f–4. Rule 17f±5 as proposed to be The following summarizes the IRFA. first year after proposed rule 17f–7 goes amended ...... 20,820 into effect, approximately 650 Proposed rule 17f±7 ...... 28,250 A. Reasons for the Proposed Action investment advisers would make an Net reduction ...... ¥350 Rule 17f–5 governs the custody of the average of 3 responses per adviser under assets of registered management the proposed rule, requiring a total of The Commission requests comment on investment companies (‘‘funds’’) with approximately 25 hours for each the reasonableness of these estimates. custodians outside the United States. adviser, to address depository Commenters who disagree are requested The Commission amended the rule in compliance with minimum to provide their own estimates with 1997 to modernize its conditions. In requirements, any indemnification or supporting rationales. 1998, representatives of funds and bank insurance arrangements, and reviews of custodians informed the Commission risk analyses or notifications.71 The total Pursuant to 44 U.S.C. 3506(c)(2)(B), that some conditions of the rule annual burden associated with these the Commission solicits comments in presented problems regarding the use of requirements of the rule during the first order to: (i) evaluate whether the foreign securities depositories. year would be approximately 16,250 proposed collections of information are hours (650 advisers × 25 hours per necessary for the proper performance of B. Objectives the functions of the Commission, adviser). The staff further estimates that The Commission is proposing including whether the information will during the first year after the proposed amendments to rule 17f–5 and a new rule goes into effect, approximately 15 have practical utility; (ii) evaluate the rule 17f–7, which together would permit global custodians would make an accuracy of the staff’s estimate of the funds to maintain their assets in foreign average of 80 responses per custodian burden of the proposed collections of securities depositories based on under the rule that would require information; (iii) enhance the quality, conditions that reflect the operations 72 approximately 10 hours per response. utility and clarity of the information to and role of these depositories. The The total annual burden associated with be collected; and (iv) minimize the proposed amendments to rule 17f–5 these requirements of the new rule burden of the collections of information would remove custody arrangements would be approximately 12,000 hours on those who are to respond, including × with foreign securities depositories from (15 custodians 800 hours). Therefore, through the use of automated collection the rule, eliminating the applicability to the total annual burden associated with techniques or other forms of information depository arrangements of all collection of information technology. requirements that certain findings be requirements of the proposed new rule Persons wishing to submit comments made by the fund board, its investment during the first year after its adoption is on the collection of information adviser, or global custodian, and that estimated to be 28,250 hours requirements of the proposed certain specified terms or equivalent (16,250 + 12,000). amendments and proposed rule should protections appear in the rules of the As reflected in the following summary direct them to the following persons: (i) depository. of the burden hour requirements of the Desk Officer for the Securities and Proposed new rule 17f–7 would collection of information requirements Exchange Commission, Office of establish new provisions for the use of in current rule 17f–5, rule 17f–5 as Information and Regulatory Affairs, depositories. The proposed rule would proposed to be amended, and proposed Office of Management and Budget, require every foreign securities rule 17f–7, the staff estimates that the Room 3208, New Executive Office depository that holds fund assets to Building, Washington, DC 20503; and meet specified minimum standards for 71 These estimates assume that one adviser manages 6 portfolios, and that each adviser would (ii) Jonathan G. Katz, Secretary, depositories. The proposed rule also make 3 responses annually requiring a total of 25 Securities and Exchange Commission, would require a custody arrangement hours for each adviser to address depository 450 5th Street NW, Washington, DC with a depository to meet either of two compliance with minimum requirements, any 20549–0609, with reference to File No. alternative sets of risk-limiting indemnification or insurance arrangements, and reviews of risk analyses or notifications for the S7–15–99. OMB is required to make a conditions. Under one alternative, the adviser’s fund complex. The 25 hours would decision concerning the collections of fund could obtain adequate include 3 hours spent to verify depository information between 30 and 60 days indemnification or insurance against the compliance with minimum requirements, 2 hours after publication; therefore, a comment custody risks of depository spent to address any indemnification or insurance arrangements, and 20 hours spent to review risk to OMB is best assured of having its full arrangements. Under the other analyses or notification for the fund complex. effect if OMB receives it within 30 days alternative, the fund’s contract with its 72 These estimates assume that each of 15 after publication of this Release. primary custodian would have to state custodians services an average of 250 client Requests for materials submitted to that the custodian will provide the fund portfolios within 40 fund complexes, that a single OMB by the Commission with respect to response by each custodian can simultaneously or its adviser an initial analysis of the address approximately 6 client portfolios in a fund these collections of information should custody risks of the depository complex, and that each custodian makes be in writing, refer to File No. S7–15– arrangement, continuously monitor approximately 80 annual responses requiring 10 99, and be submitted to the Securities those risks, and notify the fund or its hours per response to prepare risk anslyses of and Exchange Commission, Records depository arrangements and monitor risks for adviser of material changes in the risks. approximately 40 fund complexes, and to provide Management, Office of Filings and The primary custodian and other notices of material changes in risks to these clients. Information Services. custodians involved in the depository
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24497 arrangement also would have to agree to apply to custody arrangements with a The Commission encourages the exercise reasonable care in performing foreign bank custodian. The submission of comments on matters these duties and in other conduct amendments would remove a custody discussed in the IRFA. Comment relating to custody arrangements. The arrangement with a foreign depository specifically is requested on the number conforming amendments to rules 7d–1 from the rule, eliminating the necessity of small entities that would be affected and 17f–4 would clarify current for it to comply with these by the proposals and the impact of the references to rule 17f–5 by adding a requirements. proposals on small entities. Commenters reference to rule 17f–7 as well. Proposed new rule 17f–7 would are asked to describe the nature of any establish new requirements for impact and provide empirical data C. Legal Basis arrangements with depositories. As supporting the extent of the impact. The Commission is proposing the described above, the new rule would These comments will be placed in the amendments to rule 17f–5 and new rule require each foreign securities same public comment file as comments 17f–7 and conforming amendments to depository that holds fund assets to on the proposals. A copy of the IRFA rules 7d–1 and 17f–4 pursuant to the meet certain specified minimum may be obtained by contacting Thomas authority set forth in sections 6(c), 7(d), requirements. Depository arrangements M.J Kerwin, Securities and Exchange 17(f), and 38(a) of the Investment also would have to meet other risk- Commission, 450 5th Street, NW, Company Act (15 U.S.C. 80a–6(c), –7(d), limiting conditions. A fund could obtain Washington, DC 20549–0506. –17(f), and –37(a)). adequate indemnification or insurance against the custody risks of depository VI. Statutory Authority D. Small Entities Subject to the Rules arrangements. In the alternative, the The Commission is proposing The proposed amendments and new fund’s contract with its primary amendments to rule 17f–5 and new rule rule will affect, among other persons, custodian would have to state that the 17f–7 and conforming amendments to the approximately 15 global custodians custodian will provide an analysis of rules 7d–1 and 17f–4 pursuant to that act as foreign custody managers for depository custody risks, continuously authority set forth in sections 6(c), 7(d), funds under rule 17f–5 and as primary monitor the risks, and promptly notify 17(f), and 38(a) of the Investment custodians under proposed rule 17f–7. the fund of any material changes in Company Act (15 U.S.C. 80a–6(c), –7(d), None of these global custodians would risks. The primary custodian and other –17(f) and –37(a)). likely qualify as a small entity, because custodians also would have to agree to List of Subjects in 17 CFR Part 270 each custodian is a major bank with a exercise reasonable care in all conduct global branch network or global ties to relating to custody arrangements. Investment companies, Reporting and recordkeeping requirements, Securities. other banks. The proposed amendments F. Significant Alternatives and new rule also will affect the funds Text of Proposed Rule that invest in foreign markets and their The Regulatory Flexibility Act directs investment advisers. Few if any of the the Commission to consider significant For the reasons set out in the affected funds and advisers would be alternatives that would accomplish the preamble, Title 17, Chapter II of the small entities.73 stated objective, while minimizing any Code of Federal Regulations is proposed On balance, the impact of the significant economic impact on small to be amended as follows: entities. As discussed above, none of the proposed amendments and new rule on PART 270ÐRULES AND global custodians, funds, and advisers is global custodians affected by the proposed amendments to rule 17f–5 or REGULATIONS, INVESTMENT not expected to be great, because the COMPANY ACT OF 1940 burdens of the new rule’s requirements proposed rule 17f–7, and few if any of the affected funds and advisers, are would be offset in part by the 1. The general authority citation for likely to be considered small entities for elimination of burdens under existing part 270 continues to read in part as purposes of the Regulatory Flexibility rule 17f–5. For this reason, and because follows: Act. As further discussed above, the few if any of the affected entities would impact of the amendments is likely to be Authority: 15 U.S.C. 80a–1 et seq., 80a– qualify as small entities, the proposed limited, because burdens under the 34(d), 80a–37, 80a–39 unless otherwise amendments are unlikely to have a noted: proposed new rule would be offset in significant impact on a substantial part by reduced burdens under current * * * * * number of small entities. rule 17f–5. Therefore, the potential 2. Section 270.7d–1 is amended by E. Reporting, Recordkeeping, and Other impact of the amendments and the revising the introductory text of Compliance Requirements proposed new rule on small entities paragraph (b)(8)(v) to read as follows: The proposed amendments to rule would not be significant. § 270.7d±1 Specification of conditions and For these reasons, alternatives to the 17f–5 would retain existing reporting, arrangements for Canadian management proposed amendments and proposed recordkeeping, and other compliance investment companies requesting order new rule are unlikely to minimize any permitting registration. requirements of the rule without impact that the proposed amendments substantive changes, insofar as they * * * * * may have on small entities. Alternatives (b) * * * 73 A fund is consisered a small entity if it, in this category would include: (1) (8) * * * together with other investment companies in the Establishing different compliance or (v) Except as provided in § 270.17f–5 same group of related investment companies, has reporting standards that take into and § 270.17f–7, applicant will appoint, net assets of $50 million or less. 17 CFR 270.0–10. account the resources available to small by contract, a bank, as defined in An adviser is considered a small entity if it has assets under management of less than $25 million, entities; (2) clarifying, consolidating or section 2(a)(5) of the Act (15 U.S.C. 80a– has total assets of less than $5 million, and is not simplifying the compliance 2(a)(5)) and having the qualification in a control relationship with other advisers or requirements for small entities; (3) using described in section 26(a)(1) of the Act persons that are not small entities. 17 CFR 275.0– performance rather than design (15 U.S.C. 80a–26(a)(1)), to act as trustee 7. Most funds that invest in foreign securities are part of a fund complex that holds net assets of more standards; and (4) exempting small of, and maintain in its sole custody in than $50 million, and are advised by advisers with entities from coverage of all or part of the United States, all of applicant’s assets under management of $25 million or more. the rule. securities and cash, other than cash
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 24498 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules necessary to meet applicant’s current (i) A banking institution organized (i) The Eligible Foreign Custodian’s administrative expenses. The contract under the laws of the United States; practices, procedures, and internal will provide, inter alia, that the (ii) A member bank of the Federal controls, including, but not limited to, custodian will: Reserve System; the physical protections available for * * * * * (iii) Any other banking institution or certificated securities (if applicable), the 3. Section 270.17f–4 is amended by trust company organized under the laws method of keeping custodial records, revising the introductory text of of any state or of the United States, and the security and data protection paragraph (b) to read as follows: whether incorporated or not, doing practices; business under the laws of any state or (ii) Whether the Eligible Foreign § 270.17f±4 Deposits of securities in of the United States, a substantial Custodian has the requisite financial securities depositories. portion of the business of which strength to provide reasonable care for * * * * * consists of receiving deposits or Foreign Assets; (b) A registered management exercising fiduciary powers similar to (iii) The Eligible Foreign Custodian’s investment company (investment those permitted to national banks under general reputation and standing; and company) or any qualified custodian the authority of the Comptroller of the (iv) Whether the Fund will have may deposit all or any part of the Currency, and which is supervised and jurisdiction over and be able to enforce securities owned by the investment examined by state or federal authority judgments against the Eligible Foreign company in a foreign Eligible Securities having supervision over banks, and Custodian, such as by virtue of the Depository as defined in § 270.17f–7 in which is not operated for the purpose of existence of offices in the United States accordance with the provisions of evading the provisions of this section, or or consent to service of process in the § 270.17f–7 and applicable provisions of (iv) A receiver, conservator, or other United States. § 270.17f–5, or in: liquidating agent of any institution or (2) Contract. The arrangement with * * * * * firm included in paragraphs (a)(7)(i), the Eligible Foreign Custodian is 4. Section 270.17f–5 is revised to read (ii), or (iii) of this section. governed by a written contract that the as follows: (b) Delegation. A Fund’s board of Foreign Custody Manager has directors may delegate to the Fund’s determined will provide reasonable care § 270.17f±5 Custody of investment investment adviser or officers or to a for Foreign Assets based on the company assets outside the United States. U.S. Bank or to a Qualified Foreign standards specified in paragraph (c)(1) (a) Definitions. For purposes of this Bank the responsibilities set forth in of this section. section: paragraphs (c)(1), (c)(2), or (c)(3) of this (i) The contract must provide: (1) Eligible Foreign Custodian means section, provided that: (A) For indemnification or insurance an entity that is incorporated or (1) The board determines that it is arrangements (or any combination) that organized under the laws of a country reasonable to rely on the delegate to will adequately protect the Fund against other than the United States and that is perform the delegated responsibilities; the risk of loss of Foreign Assets held in a Qualified Foreign Bank or a majority- (2) The board requires the delegate to accordance with the contract; owned direct or indirect subsidiary of a provide written reports notifying the (B) That the Foreign Assets will not be U.S. Bank or bank-holding company. board of the placement of Foreign subject to any right, charge, security (2) Foreign Assets means any Assets with a particular custodian and interest, lien or claim of any kind in investments (including foreign of any material change in the Fund’s favor of the Eligible Foreign Custodian currencies) for which the primary foreign custody arrangements, with the or its creditors, except a claim of market is outside the United States, and reports to be provided to the board at payment for their safe custody or any cash and cash equivalents that are such times as the board deems administration or, in the case of cash reasonably necessary to effect the reasonable and appropriate based on the deposits, liens or rights in favor of Fund’s transactions in those circumstances of the Fund’s creditors of the custodian arising under investments. arrangements; and bankruptcy, insolvency, or similar laws; (3) Foreign Custody Manager means a (3) The delegate agrees to exercise (C) That beneficial ownership of the Fund’s or a Registered Canadian Fund’s reasonable care, prudence and diligence Foreign Assets will be freely board of directors or any person serving such as a person having responsibility transferable without the payment of as the board’s delegate under paragraphs for the safekeeping of the Fund’s money or value other than for safe (b) or (d) of this section. Foreign Assets would exercise, or to custody or administration; (4) Fund means a management adhere to a higher standard of care, in (D) That adequate records will be investment company registered under performing the delegated maintained identifying the Foreign the Act (15 U.S.C. 80a) and incorporated responsibilities. Assets as belonging to the Fund or as or organized under the laws of the (c) Maintaining Assets with an being held by a third party for the United States or of a state. Eligible Foreign Custodian. A Fund or benefit of the Fund; (5) Qualified Foreign Bank means a its Foreign Custody Manager may place (E) That the Fund’s independent banking institution or trust company, and maintain the Fund’s Foreign Assets public accountants will be given access incorporated or organized under the in the care of an Eligible Foreign to those records or confirmation of the laws of a country other than the United Custodian, provided that: contents of those records; and States, that is regulated as such by the (1) General Standard. The Foreign (F) That the Fund will receive country’s government or an agency of Custody Manager determines that the periodic reports with respect to the the country’s government. Foreign Assets will be subject to safekeeping of the Foreign Assets, (6) Registered Canadian Fund means reasonable care, based on the standards including, but not limited to, a management investment company applicable to custodians in the relevant notification of any transfer to or from incorporated or organized under the market, if maintained with the Eligible the Fund’s account or a third party laws of Canada and registered under the Foreign Custodian, after considering all account containing assets held for the Act pursuant to the conditions of factors relevant to the safekeeping of the benefit of the Fund. § 270.7d–1. Foreign Assets, including, without (ii) The contract may contain, in lieu (7) U.S. Bank means an entity that is: limitation: of any or all of the provisions specified
VerDate 26-APR-99 16:42 May 05, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\06MYP5.XXX pfrm01 PsN: 06MYP5 Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed Rules 24499 in paragraph (c)(2)(i) of this section, Assets with an Eligible Securities Bank have the same meanings as in other provisions that the Foreign Depository, provided that: § 270.17f–5. In addition: Custody Manager determines will (1) Indemnification or insurance. The (1) Eligible Securities Depository provide, in their entirety, the same or a Fund has obtained indemnification or means a system for the central handling greater level of care and protection for insurance arrangements (or any of securities as defined in § 270.17f–4, the Foreign Assets as the specified combination) that will adequately or a transfer agent that transfers and provisions, in their entirety. protect the Fund against all losses holds uncertificated securities on the (3)(i) Monitoring the Foreign Custody attributable to the custody risks books of an issuer for market Arrangements. The Foreign Custody associated with maintaining assets with participants, that: Manager has established a system to the Eligible Securities Depository; or (2) (i) Acts as a transnational system for monitor the appropriateness of (2) Alternative safeguards. The the central handling of securities or maintaining the Foreign Assets with a custody arrangement provides other equivalent book-entries, or acts as a particular custodian under paragraph reasonable safeguards against the system for the central handling of (c)(1) of this section, and to monitor custody risks associated with securities or equivalent book-entries in performance of the contract under maintaining assets with the Eligible the country where it is incorporated or paragraph (c)(2) of this section. Securities Depository, including: organized; (ii) If an arrangement with an Eligible (i) Risk analysis and monitoring. The (ii) Is regulated by a foreign financial Foreign Custodian no longer meets the Fund’s contract with its Primary regulatory authority as defined under requirements of this section, the Fund Custodian states that the Primary section 2(a)(50) of the Act (15 U.S.C. must withdraw the Foreign Assets from Custodian (or its agent) will: 80a–2(a)(50)); the Eligible Foreign Custodian as soon (A) Provide the Fund or its (iii) Holds assets for the custodian as reasonably practicable. investment adviser with an analysis of that participates in the system on behalf (d) Registered Canadian Funds. Any the custody risks associated with of the Fund under conditions no less Registered Canadian Fund may place maintaining assets with the Eligible favorable than the conditions that apply and maintain its Foreign Assets outside Securities Depository, before the Fund to other participants; the United States in accordance with the places its assets with the depository; (iv) Maintains records that identify requirements of this section, provided and the assets of each participant and (B) Continuously monitor the custody that: segregate the system’s own assets from risks associated with maintaining assets (1) The Foreign Assets are placed in the assets of participants; with the Eligible Securities Depository the care of an overseas branch of a U.S. (v) Provides periodic reports to its and promptly notify the Fund or its Bank that has aggregate capital, surplus, participants with respect to its investment adviser regarding any and undivided profits of a specified safekeeping of assets, including notices material change in these risks. amount, which must not be less than of transfers to or from any participant’s $500,000; and (ii) Exercise of care. The Fund’s contract with its Primary Custodian account; and (vi) Is subject to periodic (2) The Foreign Custody Manager is review by regulatory authorities or the Fund’s board of directors, its states that the Primary Custodian and each other custodian that acts on behalf independent accountants. investment adviser or officers, or a U.S. (2) Primary Custodian means a U.S. Bank. of the Fund in maintaining assets with the Eligible Securities Depository will Bank or Qualified Foreign Bank that Note to § 270.17f–5: A custody arrangement agree to exercise reasonable care, contracts directly with a Fund to that involves an Eligible Securities provide custodial services related to Depository (as defined in § 270.17f–7) would prudence, and diligence in performing the requirements of paragraph (a)(2)(i) of maintaining the Fund’s assets outside be governed by the provisions of § 270.17f– the United States. 7 as well as by provisions of § 270.17f–5 that this section and in all other conduct apply to any Eligible Foreign Custodian relating to custody arrangements, or to Note to § 270.17f–7: A custody arrangement involved in the depository custody adhere to a higher standard of care. that involves an Eligible Securities arrangement. (3) Withdrawal of assets from Eligible Depository would also be governed by provisions of § 270.17f–5 that apply to any 5. Section 270.17f–7 is added to read Securities Depository. If a custody arrangement with an Eligible Securities Eligible Foreign Custodian (as defined in as follows: § 270.17f–5) involved in the depository Depository no longer meets the custody arrangement. § 270.17f±7 Custody of investment requirements of this section, the Fund’s Dated: April 29, 1999. company assets with a foreign securities Foreign Assets must be withdrawn from depository. the depository as soon as reasonably By the Commission. (a) Custody arrangement with an practicable. Margaret H. McFarland, Eligible Securities Depository. A Fund, (b) Definitions. The terms Foreign Deputy Secretary. including a Registered Canadian Fund, Assets, Fund, Qualified Foreign Bank, [FR Doc. 99–11357 Filed 5–5–99; 8:45 am] may place and maintain its Foreign Registered Canadian Fund, and U.S. BILLING CODE 8010±01±P
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Reader Aids Federal Register Vol. 64, No. 87 Thursday, May 6, 1999
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 523±5227 73...... 23768 3 CFR 97...... 24283, 24284 Presidential Documents Proclamations: Proposed Rules: Executive orders and proclamations 523±5227 7189...... 24275 39...... 23552, 24092 The United States Government Manual 523±5227 7190...... 24277 71 ...... 23805, 23806, 23807, 7191...... 24279 23808, 23809 7192...... 24281 Other Services 108...... 23554 Executive Orders: Electronic and on-line services (voice) 523±4534 13088 (Amended by 15 CFR Privacy Act Compilation 523±3187 EO 13121)...... 24021 746...... 24018 Public Laws Update Service (numbers, dates, etc.) 523±6641 13121...... 24021 TTY for the deaf-and-hard-of-hearing 523±5229 July 2, 1910 (Revoked 16 CFR in part by PLO Proposed Rules: ELECTRONIC RESEARCH 7388) ...... 23856 453...... 24250 World Wide Web 5 CFR 17 CFR Full text of the daily Federal Register, CFR and other 351...... 23531 1...... 24038 publications: 532...... 23531 17...... 24038 18...... 24038 http://www.access.gpo.gov/nara 7 CFR 150...... 24038 Federal Register information and research tools, including Public 301...... 23749 270...... 24488 Inspection List, indexes, and links to GPO Access: 929...... 24023 Proposed Rules: http://www.nara.gov/fedreg 979...... 23754 270...... 24489 993...... 23759 E-mail 1307...... 23532 21 CFR PENS (Public Law Electronic Notification Service) is an E-mail 1308...... 23532 558...... 23539 service that delivers information about recently enacted Public 1940...... 24476 Proposed Rules: Laws. To subscribe, send E-mail to 1944...... 24476 1020...... 23811 Proposed Rules: 1308...... 24094 [email protected] 1412...... 24091 with the text message: 25 CFR 9 CFR subscribe publaws-l
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31 CFR 271...... 23780 555...... 23551 48 CFR 205...... 24242 600...... 23906 560...... 23551 Proposed Rules: 565...... 23551 Proposed Rules: Proposed Rules: 16...... 24472 1...... 24454 52 ...... 23813, 24117, 24119 571...... 23551 45...... 23982 70...... 23813 572...... 23794 48...... 24472 582...... 23545 33 CFR 81...... 24123 52...... 23982, 24472 585...... 23551 117...... 23545 271...... 23814 215...... 23814 165...... 24286 586...... 23551 44 CFR 587...... 23551 Proposed Rules: 588...... 23551 49 CFR 165...... 23545 59...... 24256 61...... 24256 Proposed Rules: Proposed Rules: 38 CFR 356...... 24311 229...... 23816 21...... 23769 46 CFR 231...... 23816 47 CFR Proposed Rules: 500...... 23545 232...... 23816 17...... 23812 501...... 23545 Proposed Rules: 360...... 24123 502...... 23551 1...... 23571 387...... 24123 40 CFR 503...... 23545 22...... 23571 390...... 24128 9...... 23906 504...... 23545 24...... 23571 396...... 24128 35...... 23734 506...... 23545 26...... 23571 605...... 23590 52...... 23774 507...... 23545 27...... 23571 60...... 24049 508...... 23545 73...... 23571 50 CFR 61...... 24288 514...... 23782 74...... 23571 63...... 24288 530...... 23782 80...... 23571 226...... 24049 70...... 23777 535...... 23794 87...... 23571 600...... 24062 85...... 23906 540...... 23545 90...... 23571 648...... 24066 86...... 23906 545...... 23551 95...... 23571 660...... 24062, 24078 88...... 23906 550...... 23551 97...... 23571 Proposed Rules: 180...... 24292 551...... 23551 101...... 23571 20...... 23742
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REMINDERS Construcciones (VOC) emissions from Wireline services offering The items in this list were Aeronauticas, S.A.; polyether polyols advanced editorially compiled as an aid published 4-1-99 production; comments due telecommunications to Federal Register users. McDonnell Douglas; by 5-10-99; published 3-9- capability; deployment; Inclusion or exclusion from published 4-1-99 99 comments due by 5-13- this list has no legal Sikorsky; published 4-1-99 Air quality implementation 99; published 4-30-99 significance. plans; approval and Radio stations; table of TREASURY DEPARTMENT promulgation; various assignments: Customs Service States: Colorado; comments due by RULES GOING INTO Export control: California; comments due by 5-10-99; published 3-25- EFFECT MAY 6, 1999 Used motor vehicles; 5-12-99; published 4-12- 99 exportation requirements; 99 Minnesota; comments due AGENCY FOR published 4-6-99 Colorado; comments due by by 5-10-99; published 3- INTERNATIONAL 5-10-99; published 4-8-99 25-99 DEVELOPMENT Idaho; comments due by 5- Montana; comments due by Acquisition regulations: COMMENTS DUE NEXT 13-99; published 2-12-99 5-10-99; published 3-25- Miscellaneous amendments; WEEK Idaho; correction; comments 99 published 4-6-99 due by 5-13-99; published Nebraska; comments due by Correction; published 4- AGRICULTURE 4-13-99 5-10-99; published 3-25- 19-99 DEPARTMENT Iowa; comments due by 5- 99 AGRICULTURE Cooperative State Research, 12-99; published 4-12-99 Nevada; comments due by DEPARTMENT Education, and Extension Washington; comments due 5-10-99; published 3-25- 99 Rural Utilities Service Service by 5-12-99; published 4- 12-99 New Hampshire; comments Telecommunications system Grants and cooperative due by 5-10-99; published construction policies and agreements; availability, etc.: Air quality implementation √ √ 3-25-99 procedures: plans; A approval and Stakeholders; recepients of promulgation; various New Mexico; comments due Telecommunications agricultural research, States; air quality planning by 5-10-99; published 3- borrowers preloan and education, and extension purposes; designation of 25-99 postloan requirements; formula funds input areas: New York; comments due reduction of RUS requirements; comments Georgia; comments due by by 5-10-99; published 3- oversight with respect to due by 5-14-99; published 5-12-99; published 4-12- 25-99 preparation of plans and 4-14-99 99 HEALTH AND HUMAN specifications, etc.; COMMERCE DEPARTMENT published 4-6-99 Hazardous waste program SERVICES DEPARTMENT National Oceanic and authorizations: Food and Drug COMMERCE DEPARTMENT Atmospheric Administration Massachusetts; comments Administration Acquisition regulations: Fishery conservation and due by 5-10-99; published Medical devices: Agency protest procedures; management: 3-24-99 Gastroenterology and published 4-6-99 Caribbean, Gulf, and South Radiation protection programs: urology devicesÐ ENERGY DEPARTMENT Atlantic fisheriesÐ Rocky Flats Environmental Extracorporeal shock Acquisition regulations: Technology Site; Gulf of Mexico shrimp; wave lithotripter; Performance guarantees; transuranic waste comments due by 5-14- reclassification; published 4-6-99 characterization systems 99; published 4-29-99 comments due by 5-10- ENVIRONMENTAL and processes; EPA 99; published 2-8-99 Northeastern United States PROTECTION AGENCY inspection dates; Sunlamp products fisheriesÐ Clean Air Act: comments due by 5-10- performance standard; Northeast multispecies; State operating permits 99; published 4-16-99 recommended exposure comments due by 5-10- programsÐ Superfund program: schedule and health 99; published 2-23-99 Alaska; published 5-6-99 National oil and hazardous warnings requirements; West Coast States and substances contingency comments due by 5-10- Pesticides; tolerances in food, Western Pacific planÐ 99; published 2-9-99 animal feeds, and raw fisheriesÐ agricultural commodities: National priorities list INTERIOR DEPARTMENT update; comments due Myclobutanil; published 5-6- Northern anchovy; Land Management Bureau by 5-12-99; published 99 comments due by 5-11- Coal management: 99; published 3-12-99 4-12-99 Regional coal leasing; public GOVERNMENT ETHICS Water programs: participation and regional OFFICE ENERGY DEPARTMENT Oil pollution; non- coal team meetings; Contractor employee Government ethics: transportation-related Federal Advisory protection program; criteria Post-employment conflict of facilities prevention and Committee Act exemption; and procedures; comments interest restrictions; response; comments due comments due by 5-10- due by 5-14-99; published departmental component by 5-10-99; published 4-8- 99; published 3-11-99 3-15-99 designations revision; 99 Minerals management: published 2-5-99 ENVIRONMENTAL FARM CREDIT Mining claims under general PERSONNEL MANAGEMENT PROTECTION AGENCY ADMINISTRATION mining laws; surface OFFICE Air pollutants, hazardous; Farm credit system: management; comments Group life insurance, Federal national emission standards: Loan policies and due by 5-10-99; published employees: Magnetic tape manufacturing operationsÐ 2-9-99 Court orders; published 4-6- operations; comments due Chartered territories; Correction; comments due 99 by 5-10-99; published 4-9- comments due by 5-10- by 5-10-99; published TRANSPORTATION 99 99; published 12-16-98 3-1-99 DEPARTMENT Polymer and resin FEDERAL INTERIOR DEPARTMENT Federal Aviation √1√production facilities COMMUNICATIONS Fish and Wildlife Service Administration (Groups I and IV) and COMMISSION National wildlife refuge Airworthiness directives: volatile organic compound Common carrier services: system:
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Lead Free Fishing Areas; TRANSPORTATION Commercial motor carrier Update Service) on 202±523± fishing sinkers and jigs DEPARTMENT safety assistance 6641. This list is also made with lead; prohibited Coast Guard program; State available online at http:// use; comments due by 5- Drawbridge operations: responsibility; comments www.nara.gov/fedreg. 13-99; published 4-13-99 due by 5-10-99; Mississippi; comments due INTERIOR DEPARTMENT published 3-9-99 The text of laws is not by 5-10-99; published 2-9- published in the Federal TREASURY DEPARTMENT Surface Mining Reclamation 99 Register but may be ordered and Enforcement Office Ports and waterways safety: Alcohol, Tobacco and in ``slip law'' (individual Surface coal mining and Los Angeles and Long Firearms Bureau pamphlet) form from the reclamation operations: Beach; port access route Alcholic beverages: Superintendent of Documents, Ownership and control of study; comments due by Distilled spirits, wine, and U.S. Government Printing mining operations; 5-10-99; published 3-11- malt beverages; labeling Office, Washington, DC 20402 definitions, permit 99 and advertisingÐ (phone, 202±512±1808). The requirements, enforcement Tongass Narrows and Fill standards; comments text will also be made actions, etc.; comments Ketchikan Harbor, AK; due by 5-10-99; available on the Internet from due by 5-10-99; published speed limit; safety zone published 4-12-99 GPO Access at http:// 5-4-99 redesignated as www.access.gpo.gov/nara/ TREASURY DEPARTMENT JUSTICE DEPARTMENT anchorage ground; index.html. Some laws may Internal Revenue Service Federal Prison Industries comments due by 5-10- not yet be available. 99; published 3-25-99 Excise taxes: Agency's ability to accomplish H.R. 800/P.L. 106±25 its mission; standards and TRANSPORTATION Group health plans; procedures; comments due DEPARTMENT continuation coverage Education Flexibility by 5-10-99; published 3-10- Federal Aviation requirements; comments Partnership Act of 1999 (Apr. 99 Administration due by 5-14-99; published 29, 1999; 113 Stat. 41) 2-3-99 NORTHEAST DAIRY Airworthiness directives: Last List April 29, 1999 COMPACT COMMISSION Bell Helicopter Textron Income taxes: Rulemaking procedures and Canada; comments due Mark-to-market accounting producer referendum; by 5-10-99; published 3-9- for dealers in commodities comments due by 5-14-99; 99 and traders in securiti es Public Laws Electronic published 4-14-99 Pratt & Whitney; comments or commodities; Notification Service due by 5-14-99; published comments due by 5-13- (PENS) NUCLEAR REGULATORY 99; published 1-28-99 COMMISSION 3-15-99 Radioactive wastes, high-level; Class C airspace; comments UNITED STATES PENS is a free electronic mail disposal in geologic due by 5-13-99; published INFORMATION AGENCY notification service of newly repositories: 3-25-99 Exchange visitor program: enacted public laws. To Class E airspace; comments Au pair programs; oversight Yucca Mountain, NV; subscribe, send E-mail to due by 5-10-99; published and general accountability; comments due by 5-10- [email protected] with 4-5-99 comments due by 5-13- 99; published 2-22-99 the text message: Correction; comments due Jet routes; comments due by 99; published 4-13-99 by 5-10-99; published 5-10-99; published 3-26-99 subscribe PUBLAWS-L Your 2-24-99 Name. TRANSPORTATION LIST OF PUBLIC LAWS DEPARTMENT SMALL BUSINESS Note: This service is strictly ADMINISTRATION Federal Highway This is a continuing list of for E-mail notification of new Small business investment Administration public bills from the current public laws. The text of laws companies: Motor carrier safety standards: session of Congress which is not available through this Miscellaneous amendments; Transportation Equity Act for have become Federal laws. It service. PENS cannot respond comments due by 5-14- 21st Century; may be used in conjunction to specific inquiries sent to 99; published 4-14-99 implementationÐ with ``P L U S'' (Public Laws this address.
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