Pages 39241±39624 Vol. 60 8±2±95 No. 148 federal register August 2,1995 Wednesday this issue. Atlanta, GA,seeannouncementontheinsidecoverof For informationonbriefingsinWashington,DCand Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 Agricultural Marketing Service Textile consultation; review of trade: RULES Costa Rica, 39366–39367 Peaches; grade standards, 39241–39242 Commodity Futures Trading Commission Agriculture Department NOTICES See Agricultural Marketing Service Meetings; Sunshine Act, 39487 See Foreign Agricultural Service See Grain Inspection, Packers and Stockyards Comptroller of the Currency Administration RULES Risk-based capital: Antitrust Division Interest rate risk, 39490–39494 NOTICES PROPOSED RULES Competitive impact statements and proposed consent Risk-based capital: judgments: Interest rate risk American Bar Association, 39421–39427 Supervisory framework for measuring and assessing bank interest rate risk exposure; policy statement, Army Department 39495–39571 See Engineers Corps NOTICES Defense Department Privacy Act: See Army Department Systems of records, 39367–39368 See Engineers Corps PROPOSED RULES Coast Guard Collection from third party payers of reasonable costs of RULES healthcare services: Dangerous cargoes: TRICARE resource sharing agreements, 39285–39287 Bulk hazardous materials NOTICES Correction, 39267–39268 Agency information collection activities under OMB Lifesaving equipment: review: Inflatable personal flotation devices for recreational Proposed agency information collection activities; boaters comment request, 39368–39370 Meeting, 39268 Federal Acquisition Regulation (FAR): PROPOSED RULES Agency information collection activities under OMB Drawbridge operations: review, 39370 Illinois, 39287–39297 Meetings: International Convention on Standards of Training, Military Personnel Testing Advisory Committee, 39371 Certification and Watchkeeping for Seafarers (STCW 78); meeting, 39306–39308 Delaware River Basin Commission NOTICES NOTICES Meetings: Hearings, 39372–39373 Oil Pollution Research Interagency Coordinating Committee— Drug Enforcement Administration New York Port oil pollution minimization NOTICES demonstration participation request, 39474–39475 Applications, hearings, determinations, etc.: Towing Safety Advisory Committee, 39475 Wilson, Jonathan L., D.V.M., 39427–39428 Commerce Department Education Department See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Postsecondary education: NOTICES Federal Perkins loan, Federal work-study, and Federal Agency information collection activities under OMB supplemental educational opportunity grant review: programs— Proposed agency information collection activities; Fiscal operations report and application; closing date comment request, 39352–39354 for filing, 39373–39374 National direct and Federal Perkins student loan Commercial Space Transportation Office programs; directory of designated low-income NOTICES schools METEOR reentry vehicle system; safety criterion waiver, Teacher cancellation benefits, 39374 39476–39479 Energy Department Committee for the Implementation of Textile Agreements See Energy Efficiency and Renewable Energy Office NOTICES See Energy Information Administration Cotton, wool, and man-made textiles: See Federal Energy Regulatory Commission Nepal, 39366 See Hearings and Appeals Office, Energy Department IV Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents NOTICES Municipal solid waste landfill permit programs; adequacy Electricity export and import authorizations, permits, etc.: determinations: Arizona Public Service Co., 39375 Maryland, 39385–39387 Grants and cooperative agreements; availability, etc.: Pesticide registration, cancellation, etc.: Refractory containment research, development and Kill-Ko Horse and Cattle Spray, etc., 39388–39390 demonstration, 39375 Polado Plant Growth Salt Regulator, etc., 39390–39392 Meetings: Pesticides; emergency exemptions, etc.: Environmental Management Site Specific Advisory Cymoxanil, 39387–39388 Board— Superfund; response and remedial actions, proposed Kirtland Area Office (Sandia), 39375–39376 settlements, etc.: Nelson McCoy Pottery Site, OH, 39392 Energy Efficiency and Renewable Energy Office Water pollution control: NOTICES Interim economic guidance for water quality standards Consumer product test procedures; waiver petitions: workbook; availability, 39393 Kool-Fire, 39376–39377 Executive Office of the President Energy Information Administration See Presidential Documents NOTICES Agency information collection activities under OMB Federal Aviation Administration review: RULES Proposed agency information collection activities; Administrative regulations: comment request, 39377–39378 Communications system fee provisions and services; modifications, 39614–39616 Engineers Corps Airworthiness directives: NOTICES Jetstream, 39243–39245 Environmental statements; availability, etc.: McDonnell Douglas, 39245–39247 Luzerne County, PA; Wyoming Valley inflatable dam, Class E airspace, 39247–39248 39371–39372 PROPOSED RULES Environmental Protection Agency Federal airways, 39280–39281 NOTICES RULES Advisory circulars; availability, etc.: Air pollution control; new motor vehicles and engines: Aircraft— On-board diagnostic systems; engine conditions storage; Commercial assistance during construction of amateur- requirements associated with extinguishing built aircraft, 39479 malfunction indicator light, 39264–39267 Meetings: Air programs; State authority delegations: RTCA, Inc., 39480 Washington, 39263–39264 Organization, functions, and authority delegations: Air quality implementation plans; approval and Watertown, SD, 39479 promulgation; various States; air quality planning purposes; designation of areas: Federal Communications Commission North Carolina, 39258–39263 RULES Water pollution control: Practice and procedure: Clean Water Act— Anti-Drug Abuse Act of 1988; implementation, 39268– Pollutant analysis; test procedures guidelines, 39586– 39269 39590 PROPOSED RULES PROPOSED RULES Radio stations; table of assignments: Air programs; State authority delegations: Iowa, 39308 Washington, 39299 NOTICES Air quality implementation plans: Agency information collection activities under OMB Preparation, adoption, and submittal— review: State capture efficiency ozone testing, 39297–39298 Proposed agency information collection activities; Air quality implementation plans; approval and comment request, 39393 promulgation; various States; air quality planning purposes; designation of areas: Federal Deposit Insurance Corporation North Carolina, 39298–39299 RULES Pesticides; tolerances in food, animal feeds, and raw Risk-based capital: agricultural commodities: Interest rate risk, 39490–39494 Mevinphos, 39302–39304 PROPOSED RULES Terbufos, 39299–39302 Risk-based capital: NOTICES Interest rate risk Air programs: Supervisory framework for measuring and assessing Ambient air monitoring reference and equivalent bank interest rate risk exposure; policy statement, methods— 39495–39571 Environment S.A. Model Q3 41M UV Photometric Ozone Analyzer, etc., 39382–39383 Federal Energy Regulatory Commission Clean Air Act: RULES Acid rain provisions— Electric utilities (Federal Power Act): Small diesel refineries allowance allocations for fuel Nuclear plant decommissioning trust fund guidelines desulfurization, 39383–39385 (Black Lung restrictions), 39251–39252 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents V Natural Gas Policy Act: NOTICES Electronic Bulletin Boards Standards— Endangered and threatened species permit applications, Capacity release data sets modifications, 39252–39253 39416–39417 NOTICES Environmental statements; availability, etc.: Environmental statements; availability, etc.: Incidental take permits— Consumers Power Co. et al., 39379 Berkeley County, SC; red-cockaded woodpecker, Applications, hearings, determinations, etc.: 39418–39419 Equitrans, Inc., 39379 Perry County, MS; gopher tortoise, 39417–39418 Tennessee Gas Pipeline Co., 39379 Trunkline Gas Co., 39379–39380 Foreign Agricultural Service Wisconsin Energy Co. et al., 39380 NOTICES Import quotas and fees: Federal Housing Finance Board Dairy import licenses, 39351–39352 NOTICES Meetings; Sunshine Act, 39487 Foreign Assets Control Office RULES Federal Maritime Commission Cuban assets control regulations: NOTICES Information and informational materials, 39255–39257 Freight forwarder licenses: Shelley Moine Customs Brokers et al., 39393–39394 General Services Administration Senior Executive Service: NOTICES Performance Review Board; membership, 39394 Federal Acquisition Regulation (FAR): Agency information collection activities under OMB Federal Reserve System review, 39370 RULES Grain Inspection, Packers and Stockyards Administration Risk-based capital: Interest rate risk, 39490–39494 RULES PROPOSED RULES Official and unofficial weighing services within assigned Risk-based capital: areas of responsibility, 39242–39243 Interest rate risk Health and Human Services Department Supervisory framework for measuring and assessing See Health Care Financing Administration bank interest rate risk exposure; policy statement, See Substance Abuse and Mental Health Services 39495–39571 NOTICES Administration Applications, hearings, determinations, etc.: Health Care Financing Administration Community Trust Financial Services Corp., 39394 PROPOSED RULES Firstbank of Illinois Co. et al., 39394–39395 Medicare: Fleet Financial Group, Inc.; correction, 39394 Hospital inpatient prospective payment systems and 1996 New York Mills Bancshares, Inc., 39395 FY rates Norwest Corp., 39395–39396 Correction, 39304–39306 NOTICES Federal Trade Commission Agency information collection activities under OMB NOTICES review: Prohibited trade practices: Proposed agency information collection activities; Glaxo plc, 39396 comment request, 39403–39404 J. Walter Thompson USA, Inc., 39396–39399 Organization, functions, and authority delegations, 39404– Korean Video Stores Association of Maryland et al., 39409 39399 Summit Communications Group, Inc., et al., 39399–39403 Hearings and Appeals Office, Energy Department NOTICES Federal Transit Administration Cases filed, 39380–39382 RULES Omnibus Transportation Employee Testing Act of 1991: Housing and Urban Development Department Prohibited drug use prevention and alcohol misuse NOTICES prevention in transit operations, 39618–39620 Agency information collection activities under OMB review: Fish and Wildlife Service Proposed agency information collection activities; PROPOSED RULES comment request, 39411–39412 Endangered and threatened species: Coastal dunes milk-vetch, etc. (five plants and lizard Interior Department from Monterey County, CA), 39326–39337 See Fish and Wildlife Service Pallid manzanita, 39309–39314 See Land Management Bureau San Bernardino bluegrass, etc. (seven plants from See National Park Service Southern California mountains), 39337–39347 Sonoma alopecurus, etc. (nine plants from central coast Internal Revenue Service of California), 39314–39326 NOTICES Endangered Species Convention: Capital construction fund, nonqualified withdrawals; River otters taken in Tennessee; export, 39347–39350 interest rates, 39480 VI Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents International Trade Administration Mine Safety and Health Administration NOTICES NOTICES Antidumping: Safety standard petitions: Cold-rolled carbon steel flat products from— Consolidation Coal Co. et al., 39428–39430 Germany, 39355–39358 Fresh cut flowers from— National Aeronautics and Space Administration Ecuador, 39358–39359 NOTICES Iron construction castings from— Federal Acquisition Regulation (FAR): China, 39359–39360 Agency information collection activities under OMB Countervailing duties: review, 39370 Procelain-on-steel cookingware from— Mexico, 39360–39363 Textile mill products from— National Credit Union Administration Thailand, 39363–39365 PROPOSED RULES Credit unions: Insurance requirements— International Trade Commission Federal credit unions and federally insured State- NOTICES chartered credit unions; regulations and Import investigations: requirements consolidation, 39274–39280 North American Free Trade Agreement rules of origin; Organization and operations— probable effect of modifications, 39419–39420 Lending opportunities consistent with safety and soundness principles; requirement that Interstate Commerce Commission participation agreement precede loan disbursement NOTICES removed, 39273–39274 Railroad operation, acquisition, construction, etc.: Burlington Northern Railroad Co., 39420 National Highway Traffic Safety Administration RULES Judicial Conference of the United States Consumer information: NOTICES Course monitoring tires and traction skid pads use; fees, Meetings: 39269–39271 Judicial Conference Advisory Committee on— PROPOSED RULES Appellate Procedure Rules, 39420 Motor vehicle safety standards: Bankruptcy Procedure Rules, 39420 Passengers riding in cargo areas of pickup trucks; Civil Procedure Rules, 39421 manufacturers agreement to include warning of Criminal Procedure Rules, 39421 dangers in owners’ manuals, 39308–39309 NOTICES Motor vehicle safety standards: Justice Department Nonconforming vehicles— See Antitrust Division Importation eligibility; determinations, 39481–39485 See Drug Enforcement Administration Motor vehicle theft prevention standard; exemption petitions, etc.: Labor Department Nissan North America, Inc., 39480–39481 See Mine Safety and Health Administration See Occupational Safety and Health Administration National Oceanic and Atmospheric Administration NOTICES Agency information collection activities under OMB RULES Civil and criminal enforcement proceedings; limited use of review, 39428 information collected by voluntary fishery data collectors, 39248–39249 Land Management Bureau National Marine Fisheries Service; Federal regulatory NOTICES review, 39249–39251 Environmental statements; availability, etc.: Reporting and recordkeeping requirements, 39271–39272 Red Rock Canyon National Conservation Area, NV, 39412 NOTICES Meetings: Capital construction fund, nonqualified withdrawals; Gila Box Riparian National Conservation Area Advisory interest rates, 39480 Committee, 39412 Permits: Oil and gas leases: Marine mammals, and endangered and threatened Wyoming, 39413 species, 39366 Opening of public lands: California, 39412–39413 National Park Service Recreation management restrictions, etc.: RULES Albuquerque District, NM; supplementary rules, 39413– Special regulations: 39416 Voyageurs National Park, MN; aircraft operations; designation of areas, 39257–39258 Maritime Administration NOTICES NOTICES Environmental statements; availability, etc.: Capital construction fund, nonqualified withdrawals; Shenandoah National Park, VA; facility development interest rates, 39480 plan, 39419 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents VII Nuclear Regulatory Commission Meetings: NOTICES Mental Health Services Center National Advisory Agency information collection activities under OMB Council, 39410 review: Substance Abuse and Mental Health Services Proposed agency information collection activities; Administration National Advisory Council, 39410– comment request, 39464 39411 Agreement State program principles and policy statement and adequacy and compatibility policy statement, Textile Agreements Implementation Committee 39463–39464 See Committee for the Implementation of Textile Environmental statements; availability, etc.: Agreements Commonwealth Edison Co. et al., 39464–39465 Operating licenses, amendments; no significant hazards Transportation Department considerations; biweekly notices, 39430–39462 See Coast Guard Applications, hearings, determinations, etc.: See Commercial Space Transportation Office Consumers Power Co., 39462 See Federal Aviation Administration Southern California Edison Co., 39462–39463 See Federal Transit Administration Occupational Safety and Health Administration See Maritime Administration RULES See National Highway Traffic Safety Administration Construction safety and health standards: See Research and Special Programs Administration Fall protection, 39254–39255 NOTICES PROPOSED RULES Meetings: Safety and health standards: Minority Business Resource Center Advisory Committee, Confined spaces, permit-required; correction, 39281– 39479 39285 Treasury Department Presidential Documents See Comptroller of the Currency EXECUTIVE ORDERS See Foreign Assets Control Office Committees; establishment, renewal, termination, etc.: See Internal Revenue Service Metro North Commuter Railroad labor dispute, NOTICES establishment of emergency board to investigate (EO Senior Executive Service: 12967), 39623–39624 Performance Review Board; membership, 39485–39486 Public Health Service See Substance Abuse and Mental Health Services Administration Separate Parts In This Issue Research and Special Programs Administration Part II RULES Department of the Treasury, Comptroller of the Currency, Hazardous materials: Federal Reserve System, Federal Deposit Insurance Substances and reportable quantities list; Superfund Corporation, 39490–39571 Amendments and Reauthorization Act implementation, 39608–39611 Part III Securities and Exchange Commission, 39574–39584 Securities and Exchange Commission PROPOSED RULES Part IV Investment companies: Custody of investment company assets outside United Environmental Protection Agency, 39586–39590 States, 39592–39606 Investment advisory programs status, 39574–39584 Part V NOTICES Securities and Exchange Commission, 39592–39606 Self-regulatory organizations; proposed rule changes: Chicago Stock Exchange, Inc., 39465–39469 Part VI Department of Transportation, Research and Special State Department Programs Administration, 39608–39611 NOTICES Agency information collection activities under OMB Part VII review, 39469 Department of Transportation, Federal Aviation Arms Export Control Act determinations, 39469 Administration, 39614–39616 Privacy Act: Systems of records, 39469–39474 Part VIII Substance Abuse and Mental Health Services Department of Transportation, Federal Transit Administration Administration, 39618–39620 NOTICES Grant and cooperative agreement awards: Part IX Hawaii, 39409–39410 The President, 39623–39624 VIII Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents Reader Aids Additional information, including a list of public laws, telephone numbers, and finding aids, appears in the Reader Aids section at the end of this issue. Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– 1538 or 275–0920. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Contents IX CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 3 CFR 46 CFR Executive Orders: 30...... 39267 12967...... 39623 150...... 39267 160...... 39268 7 CFR Proposed Rules: 51...... 39241 800...... 39242 5...... 39306 10...... 39306 12 CFR 12...... 39306 3...... 39490 15...... 39306 208...... 39490 325...... 39490 47 CFR 1...... 39268 Proposed Rules: 3...... 39495 Proposed Rules: 208...... 39495 73...... 39308 325...... 39495 49 CFR 701...... 39273 171...... 39608 741...... 39274 172...... 39608 14 CFR 575...... 39269 39 (2 documents) ...... 39243, 653...... 39618 39245 654...... 39618 71...... 39247 Proposed Rules: 189...... 39614 571...... 39308 Proposed Rules: 50 CFR 71...... 39280 204...... 39248 15 CFR 210...... 39271 902...... 39248 216...... 39271 905...... 39249 250...... 39271 270...... 39271 17 CFR 604...... 39271 Proposed Rules: Proposed Rules: 270 (2 documents) ...... 39574, 17 (4 documents) ...... 39309, 39592 39314, 39326, 39337 274...... 39574 23...... 39347 18 CFR 35...... 39251 284...... 39252 29 CFR 1926...... 39254 Proposed Rules: 1910...... 39281 31 CFR 515...... 39255 32 CFR Proposed Rules: 220...... 39285 33 CFR Proposed Rules: 117...... 39287 36 CFR 7...... 39257 40 CFR 52...... 39258 61...... 39263 81...... 39258 86...... 39264 136...... 39586 Proposed Rules: 51...... 39297 52...... 39298 61...... 39299 81...... 39298 180 (2 documents) ...... 39299, 39302 185...... 39302 42 CFR Proposed Rules: 412...... 39304 413...... 39304 424...... 39304 485...... 39304 489...... 39304 39241 Rules and Regulations Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 This section of the FEDERAL REGISTER will not have a significant economic sized using a sizing ring. Therefore, in contains regulatory documents having general impact on a substantial number of small order to create uniformity in the applicability and legal effect, most of which entities. The revision of U.S. Standards marketplace, peaches should be sized are keyed to and codified in the Code of for Grades of Peaches will not impose on the same basis as nectarines, by Federal Regulations, which is published under substantial direct economic cost, using the greatest dimension measured 50 titles pursuant to 44 U.S.C. 1510. recordkeeping, or personnel workload at right angles to a line from stem to The Code of Federal Regulations is sold by changes on small entities, and will not blossom end of the fruit, using a sizing the Superintendent of Documents. Prices of alter the market share or competitive ring. new books are listed in the first FEDERAL position of these entities relative to large The 60-day comment period on the REGISTER issue of each week. businesses. In addition, under the proposed rule ended May 2, 1995, and Agricultural Marketing Act of 1946, the a total of twenty-six comments were use of these standards is voluntary. received from growers, shippers, and DEPARTMENT OF AGRICULTURE This final rule has been reviewed receivers. All comments were in favor of under Executive Order 12778, Civil the proposal in its entirety, although Agricultural Marketing Service Justice Reform. This action is not concerns were raised. In addition, one 7 CFR Part 51 intended to have retroactive effect. This comment was received from the final rule will not preempt any State or Agricultural Research Service (ARS). [Docket Number FV±95±302] local laws, regulations, or policies, A copy of the proposed rule was unless they present an irreconcilable provided to the ARS for helping Peaches; Grade Standards conflict with this rule. There are no identifying studies, data collection or AGENCY: Agricultural Marketing Service, administrative procedures which must other information relevant to the USDA. be exhausted prior to any judicial possible effect of the proposed revision ACTION: Final rule. challenge to the provisions of the rule. on pesticide use. ARS reported that they Agencies periodically review existing were unable to find much information SUMMARY: This final rule revises the regulations. An objective of the review on the subject. The information that was United States Standards for Grades of is to ensure that the grade standards are found by ARS proved not to be relevant. Peaches by changing the method in serving their intended purpose, the Twenty-six comments were in favor of which peaches are sized. The revision language is clear, and the standards are revising the United States Standards for will bring the standards into conformity consistent with AMS policy and Grades of Peaches by changing the with current cultural, harvesting and authority. method in which peaches are sized from marketing practices by revising the The proposed rule, United States shortest diameter using a caliper or definition of ‘‘diameter’’ from the Standards for Grades of Peaches, was slotted sizing ring to the greatest shortest distance to the greatest published in the Federal Register on diameter using a sizing ring. It is distance. The Agricultural Marketing March 3, 1995, (60 FR 11918). believed that this revision will create Service (AMS), in cooperation with The National Peach Council (NPC), uniformity within the marketplace. industry, and other interested parties with the support of the Georgia Peach One comment from a receivers develops and improves standards of Council, New Jersey Peach Promotion association went on to state that they quality, condition, quantity, grade, and Council, Inc., and the South Carolina were concerned that the proposed packaging in order to facilitate Peach Council and Promotion Board, change would allow shippers to market commerce by providing buyers, sellers, Inc., requested that the USDA revise the smaller peaches than those that are and quality assurance personnel United States Standards for Grades of marketed under the current method of uniform language and criteria for Peaches, which were last revised in sizing peaches. They did not believe describing various levels of quality and 1952. The NPC requested that the that shipment of smaller peaches would condition as valued in the marketplace. standards be revised in order to bring be beneficial to the receivers, EFFECTIVE DATE: October 2, 1995. them into conformity with current wholesalers, retailers or consumers. FOR FURTHER INFORMATION CONTACT: cultural, harvesting and marketing Another comment from a State Frank O’Sullivan, Fresh Products practices. The NPC contends that due to association stated that ‘‘it is estimated Branch, Fruit and Vegetable Division, new improved varieties, that changes to that fruit sized with a ring will yield Agricultural Marketing Service, U.S. the current standards are necessary. approximately four fruit per pound Department of Agriculture, P.O. Box Currently, peaches are sized based on while fruit labeled the same size but 96456, Room 2056 South Building, the shortest diameter, which requires measured with a caliper will yield only Washington, DC 20090–6456, (202) 720– the use of a caliper or slotted sizing ring. three fruit per pound.’’ Although this 2185. This method was adopted several years change in sizing method may yield SUPPLEMENTARY INFORMATION: The U.S. ago when most peaches were oblong slightly more fruit per pound, this Department of Agriculture (USDA) is and heavily sutured. Industry research change is insignificant when issuing this rule in conformance with has demonstrated that today’s varieties considering the ease of determining size Executive Order 12866. are generally much more round and by the new method. Pursuant to the requirements set forth more uniform in shape than older Sizing machinery used by packers/ in the Regulatory Flexibility Act (5 varieties. The shape of peaches is shippers has never measured peaches U.S.C. 601 et. seq.), the Administrator of similar to nectarines. Nectarines are based on a slotted sizing method. Most the Agricultural Marketing Service sized by using the greatest diameter of automated sizing methods have (AMS) has determined that this action the nectarine, which allows fruit to be generally been based on a ring sizing 39242 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations method. As a result, peach industry SUMMARY: In compliance with the Regulatory Flexibility Act Certification packers/shippers had to estimate the requirements for periodic review of James R. Baker, Administrator, size of the final pack. Ultimately, this existing regulations and the President’s GIPSA, has determined that this rule meant using trial and error methods to Regulatory Review Initiative, the will not have a significant economic yield properly sized fruit. This change Federal Grain Inspection Service (FGIS), impact on a substantial number of small should result in a more uniform and of the Grain Inspection, Packers and entities. Most users of the official accurately sized pack, and at the same Stockyards Administration (GIPSA) is inspection and weighing services and time alleviate the unnecessary time amending portions of Part 800, General those persons that perform those spent by these individuals by Regulations under the United States services do not meet the requirements eliminating this trial and error method. Grain Standards Act, as amended for small entities as defined in the The revision will affect peaches that (USGSA) to allow official agencies to Regulatory Flexibility Act (5 U.S.C. 601 are sized to a minimum diameter, which provide both official and unofficial et seq.). Further, the standards are are mostly grown on the east coast and weighing within their assigned area of applied equally to all entities. some in the Midwest. This will not responsibility but not at the same affect peaches grown on the west coast facility. This action will make official Information Collection and Record as they are sized based on 7 CFR part Class X and Class Y weighing services Keeping Requirement 917, consisting of a weight-count more readily available at a lower cost to In compliance with the Paperwork system. the grain industry at nonexport Reduction Act of 1980 (44 U.S.C. AMS develops and improves locations. chapter 35), the information collection standards of quality, condition, grade, and Record keeping requirements in DATES: This rule will be effective on and packaging in order to facilitate Part 800 have been approved previously efficient marketing. The provisions of October 2, 1995. Unless we receive written adverse comments or written by OMB and assigned OMB No. 0580– this final rule are the same as those in 0013. the proposed rule. notice of intent to submit adverse comments on or before September 1, Background List of Subjects in 7 CFR Part 51 1995. Enactment of the United States Grain Agricultural commodities, Food ADDRESSES: Please send any adverse Standards Act of 1976, as amended, grades and standards, Fruits, Nuts, comments or notice of intent to submit required FGIS to establish a national Reporting and recordkeeping adverse comments to George Wollman, weighting program for gain. Regulations requirements, Vegetables. GIPSA–FGIS, USDA, Room 0623–S, under the USGSA prohibit designated For reasons set forth in the preamble, P.O. Box 96454, Washington, D.C. agencies or official personnel from 7 CFR Part 51 is amended as follows: 20090–6454; FAX (202) 720–4628. All providing official services if they comments received will be made provide similar unofficial services. PART 51Ð[AMENDED] available for public inspection at the Designated agencies are agencies 1. The authority citation for 7 CFR above address during business hours (7 granted authority under the USGSA to part 51 continues to read as follows: CFR 1.27(b)). provide either official inspection service, or Class X or Class Y weighing Authority: 7 U.S.C. 1622, 1624. FOR FURTHER INFORMATION CONTACT: services or both, at locations other than 2. In part 51, § 51.1216(c) is revised to export port locations. A large portion read as follows: George Wollman, address as above, (88%) of the designated agencies are telephone (202) 720–0292. designated for inspection services only. SubpartÐUnited States Standards for The reason is that before 1976 most Grades of Peaches SUPPLEMENTARY INFORMATION: grain inspection agencies were already Executive Order 12866 providing weighing as an accessory § 51.1216 Size requirements. service to grain inspection. The agencies * * * * * This rule has been determined to be were affiliated with and supervised by (c) Diameter means the greatest not-significant for the purposes of the then existing weighting and dimension measured at right angles to a Executive Order 12866 and therefore inspection bureaus under the direction line from stem to blossom end of the has not been reviewed by OMB. of the Association of American fruit. Executive Order 12778 railroads, local grain exchanges, boards * * * * * of trade, and various State programs. Dated: July 24, 1995. This amended rule has been reviewed After the FGIS weighting programs Lon Hatamiya, under Executive Order 12778, Civil started, the weighing being performed Administrator. Justice Reform. This action is not by the grain inspection agencies became [FR Doc. 95–18904 Filed 8–1–95; 8:45 am] intended to have a retroactive effect. unofficial weighing. Most agencies BILLING CODE 3410±02±P The United States Grain Standards Act continued their unofficial weighing and provides in section 87g that no State or applied for inspection designations subdivision may require or impose any only. Grain Inspection, Packers and requirements or restrictions concerning Since 1976 many inspection and Stockyards Administration the inspection, weighing, or description weighing bureaus, boards of trade, and of grain under the Act. Otherwise, this the Association of American Railroads 7 CFR Part 800 rule will not preempt any State or local have ceased providing supervision of laws, regulations, or policies unless they this unofficial service. Because of the Official/Unofficial Weighing Service present irreconcilable conflict with this decreasing availability of supervision AGENCY: Grain Inspection, Packers and rule. There are no administrative caused by the lack of supervising Stockyards Administration, USDA. procedures which must be exhausted entities, the need for more access to prior to any judicial challenge to the Class X or Class Y weighing exists. If ACTION: Direct final rule. provisions of this rule. allowed to provide both types of service, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39243 many more agencies who are now it is effective on the date indicated in Dated: July 25, 1995. designated for inspection only could this document. James R. Baker, also provide official weighing service. Direct Final Action Administrator, Grain Inspection, Packers and Designated agencies can provide Class X Stockyards Administration. and Class Y weighing at a much lower List of Subjects in 7 CFR Part 800 [FR Doc. 95–18905 Filed 8–1–95; 8:45 am] cost than FGIS field offices due to their For reasons set forth in the preamble, BILLING CODE 3410±EN±M proximity to the grain facilities. 7 CFR Part 800 is amended as follows: FGIS initially did not allow agencies to provide both types of service because PART 800ÐGENERAL REGULATIONS DEPARTMENT OF TRANSPORTATION confusion may have resulted on the part 1. The authority citation for Part 800 of the grain industry and agency Federal Aviation Administration licensees on which type of service the continues to read as follows: agency was providing. Authority: Pub. L. 94–582, 90 Stat. 2867, 14 CFR Part 39 FGIS has reevaluated this policy as amended (7 U.S.C. 71 et seq.) because of the distinct differences in the [Docket No. 95±CE±09±AD; Amendment 39± services. Primary differences between 2. Section 800.76(a) is revised as 9326; AD 95±16±06] official and unofficial weighing are: (1) follows: Airworthiness Directives; Jetstream Official weighing requires an officially § 800.76 Prohibited Services; restricted Aircraft Limited HP137 Mk1 and tested scale; (2) FGIS has established services. Jetstream Series 200 Airplanes procedures to maintain proper operation (a) Prohibited services. No agency and accurate weighing; (3) FGIS shall perform any inspection function or AGENCY: Federal Aviation provides an official grain weight provide any inspection service on the Administration, DOT. certificate certifying the accuracy of basis of unofficial standards, ACTION: Final rule weighing. This rule continues to procedures, factors, or criteria if the separate official and unofficial weighing agency is designated or authorized to SUMMARY: This amendment supersedes service by not allowing agencies to perform the service or provide the Airworthiness Directive (AD) 83–05–01, provide both types of service at the service on an official basis under the which currently requires the following same facility. Act. No agency shall perform official on Jetstream Aircraft Limited (JAL) This rule does not change the and unofficial weighing on the same HP137 Mk1 and Jetstream series 200 requirements for inspection services. mode of conveyance at the same facility. airplanes: repetitively inspecting the FGIS proposes to change only the * * * * * wing lower skin panels at the main gear weighing provisions of the regulations. bay cutouts for loose or damaged rivets We are publishing this rule without a 3. Section 800.186(c)(3) introductory text is revised to read as follows: and cracks, replacing loose or damaged prior proposal because we regularly rivets, and repairing any cracked wing update the regulations and view this § 800.186 Standards of conduct. lower skin panel. The Federal Aviation action as noncontroversial and (c) * * * Administration’s policy on commuter- anticipate no adverse public comment. class aircraft is to eliminate or, in This rule will be effective, as published (3) Excluding the unofficial weighing described in § 800.76(a) engage in any certain instances, reduce the number of in this document, 60 days after the date certain repetitive short-interval of publication in the Federal Register outside (unofficial) work or activity that: * * * * * inspections when improved parts or unless we receive written adverse modifications are available. The comments or written notice of intent to 4. Section 800.195(f)(5)(ii) is revised to read as follows: proposed action would require submit adverse comments within 30 reinforcing the wing lower skin at both days of the date of publication of this § 800.195 Delegations. the landing gear cutouts at Wing Station rule in the Federal Register. (WS) 115 and the undercarriage bay Adverse comments are comments that (f) * * * cutouts at WS 60 and WS 90, as suggest the rule should not be adopted (5) * * * terminating action for the repetitive or suggest the rule should be changed. (ii) Unofficial activities. Excluding the inspections that are currently required If we receive written adverse comments unofficial weighing described in by AD 83–05–01. The actions specified or written notice of intent to submit § 800.76(a) delegated State or personnel in the proposed AD are intended to adverse comments, we will publish a employed by the State shall not perform prevent wing damage caused by cracks notice in the Federal Register any unofficial service that is the same as or loose or damaged rivets in the wing withdrawing this rule before the any of the official services covered by lower skin panels, which, if not effective date. We will then publish a the delegation. detected and corrected, could result in proposed rule for public comment. * * * * * structural damage to the point of failure. Following the close of that comment 6. Section 800.196(g)(6)(ii) is revised period, the comments will be to read as follows: DATES: Effective September 26, 1995. considered, and a final rule addressing The incorporation by reference of § 800.196 Designations. the comments will be published. certain publications listed in the As discussed above, if we receive no (g) * * * regulations is approved by the Director written adverse comments nor written (6) * * * of the Federal Register as of September notice of intent to submit adverse (ii) Unofficial activities. Excluding the 26, 1995. comments within 30 days of publication unofficial weighing described in ADDRESSES: Service information that of this direct final rule, this direct final § 800.76(a) the agency or personnel applies to this AD may be obtained from rule will become effective 60 days employed by the agency shall not Jetstream Aircraft Limited, Manager, following its publication. We will perform any unofficial service that is the Product Support, Prestwick Airport, publish a notice to this effect in the same as the official services covered by Ayrshire, KA9 2RW Scotland; telephone Federal Register, before the effective the designation. (44–292) 79888; facsimile (44–292) date of this direct final, confirming that * * * * * 79703; or Jetstream Aircraft Inc., 39244 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations Librarian, P.O. Box 16029, Dulles editorial corrections. The FAA has Adoption of the Amendment International Airport, Washington, D.C. determined that these minor corrections Accordingly, pursuant to the 20041–6029; telephone (703) 406–1161; will not change the meaning of this AD authority delegated to me by the facsimile (703) 406–1469. This and will not add any additional burden Administrator, the Federal Aviation information may also be examined at upon the public than was already Administration amends part 39 of the the Federal Aviation Administration proposed. The FAA estimates that 10 airplanes Federal Aviation Regulations (14 CFR (FAA), Central Region, Office of the part 39) as follows: Assistant Chief Counsel, Attention: in the U.S. registry will be affected by Rules Docket 95–CE–09–AD, Room this AD, that it will take approximately PART 39ÐAIRWORTHINESS 1558, 601 E. 12th Street, Kansas City, 332 work hours per airplane to DIRECTIVES Missouri 64106; or at the Office of the accomplish the required modifications Federal Register, 800 North Capitol (172 work hours for Modification 5221 1. The authority citation for part 39 Street NW., suite 700, Washington, DC. and 160 work hours for Modification continues to read as follows: 5146), and that the average labor rate is FOR FURTHER INFORMATION CONTACT: Mr. Authority: 49 U.S.C. 106(g), 40101, 40113, approximately $60 an hour. Parts cost Raymond A. Stoer, Program Officer, 44701. approximately $12,000 per airplane Brussels Aircraft Certification Office, ($2,400 for Modification 5221 and § 39.13 [Amended] FAA, Europe, Africa, and Middle East $9,600 for Modification 5146). Based on 2. Section 39.13 is amended by Office, c/o American Embassy, B–1000 these figures, the total cost impact of removing AD 83–05–01, Amendment Brussels, Belgium; telephone (322) this AD on U.S. operators is estimated 39–4573, and adding a new AD to read 513.3830; facsimile (322) 230.6899; or to be $319,200 ($31,920 per airplane). as follows: Mr. Marvin R. Nuss, Project Officer, All 10 of the affected airplanes are 95–16–06. Jetstream Aircraft Limited: Small Airplane Directorate, Airplane HP137 Mk1 airplanes; there are no Certification Service, FAA, 1201 Amendment 39–9326; Docket No. 95– Jetstream series 200 airplanes registered CE–09–AD; Supersedes AD 83–05–01, Walnut, suite 900, Kansas City, Missouri in the United States, but they are type Amendment 39–4573; 64105; telephone (816) 426–6932; certificated for operation in the United Applicability: HP137 Mk1 and Jetstream facsimile (816) 426–2169. States. According to FAA records, none series 200 airplanes (all serial numbers), SUPPLEMENTARY INFORMATION: A of these HP137 Mk1 airplanes are in certificated in any category. proposal to amend part 39 of the Federal operation. JAL no longer stocks Note 1: This AD applies to each airplane Aviation Regulations (14 CFR part 39) to Modification No. 5221, but can develop identified in the preceding applicability include an AD that would apply to JAL modification kits within three months provision, regardless of whether it has been HP137 Mk1 and Jetstream series 200 after order. Since there are no airplanes modified, altered, or repaired in the area airplanes was published in the Federal currently in operation, the cost impact subject to the requirements of this AD. For Register on March 2, 1995 (60 FR of this AD is narrowed to only those airplanes that have been modified, altered, or repaired so that the performance of the 11637). The action proposed to owners/operators returning their requirements of this AD is affected, the supersede AD 83–05–01 with a new AD airplane to operation. owner/operator must use the authority that would (1) retain the requirements of The regulations adopted herein will provided in paragraph (d) of this AD to repetitively inspecting the wing lower not have substantial direct effects on the request approval from the FAA. This skin panels at the main gear bay cutouts States, on the relationship between the approval may address either no action, if the for loose or damaged rivets and cracks, national government and the States, or current configuration eliminates the unsafe replacing loose or damaged rivets, and on the distribution of power and condition, or different actions necessary to repairing any cracked wing lower skin responsibilities among the various address the unsafe condition described in panel; and (2) require reinforcing the levels of government. Therefore, in this AD. Such a request should include an assessment of the effect of the changed wing lower skin (incorporation of accordance with Executive Order 12612, it is determined that this final rule does configuration on the unsafe condition Modifications Nos. 5221 and 5146) as addressed by this AD. In no case does the terminating action for the repetitive not have sufficient federalism presence of any modification, alteration, or inspections. The proposed inspection implications to warrant the preparation repair remove any airplane from the would be accomplished in accordance of a Federalism Assessment. applicability of this AD. For the reasons discussed above, I with Jetstream Service Bulletin (SB) No. certify that this action (1) is not a Compliance: Required as indicated after 7/3, dated October 1980. Modification the effective date of this AD, unless already ‘‘significant regulatory action’’ under 5221 would be accomplished in accomplished. Executive Order 12866; (2) is not a accordance with Jetstream SB 57– To prevent wing damage caused by cracks ‘‘significant rule’’ under DOT JM5221, dated September 28, 1984, and or loose or damaged rivets in the wing lower Regulatory Policies and Procedures (44 Modification 5146 would be skin panels, which, if not detected and FR 11034, February 26, 1979); and (3) corrected, could result in structural damage accomplished in accordance with Part 2 will not have a significant economic to the point of failure, accomplish the of Modification No. 5146 Ref 7/5146, impact, positive or negative, on a following: dated October 1984. substantial number of small entities (a) Upon the accumulation of 6,500 hours Interested persons have been afforded under the criteria of the Regulatory time-in-service (TIS) or within the next 100 an opportunity to participate in the hours TIS after the effective date of this AD, Flexibility Act. A copy of the final making of this amendment. No whichever occurs later, unless already evaluation prepared for this action is comments were received on the accomplished (compliance with superseded contained in the Rules Docket. A copy proposed rule or the FAA’s AD 83–05–01), and thereafter at intervals not of it may be obtained by contacting the determination of the cost to the public. to exceed 100 hours TIS until the After careful review of all available Rules Docket at the location provided modifications required by paragraphs (b)(1) under the caption ADDRESSES. and (b)(2) of this AD are incorporated, information related to the subject accomplish the following: presented above, the FAA has List of Subjects in 14 CFR Part 39 (1) Inspect the wing lower skin between determined that air safety and the Air transportation, Aircraft, Aviation Wing Station (WS) 60 and WS 115 for loose public interest require the adoption of safety, Incorporation by reference, or damaged rivets or cracks in accordance the rule as proposed except for minor Safety. with section 3. ACTION, paragraphs (a) Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39245 through (e), of Jetstream Service Bulletin (SB) Issued in Kansas City, Missouri, on July 24, Aircraft Certification Office, Transport No. 7/3, dated October 1980. 1995. Airplane Directorate, 3960 Paramount (2) Replace any loose or damaged rivets Henry A. Armstrong, Boulevard, Lakewood, California; or at and repair any cracked wing lower skin panel Acting Manager, Small Airplane Directorate, the Office of the Federal Register, 800 in accordance with section 3. ACTION, Aircraft Certification Service. North Capitol Street, NW., suite 700, paragraphs (f) through (k), of Jetstream SB [FR Doc. 95–18712 Filed 8–1–95; 8:45 am] No. 7/3, dated October 1980. Washington, DC. (b) Upon the accumulation of 10,000 hours BILLING CODE 4910±13±U FOR FURTHER INFORMATION CONTACT: TIS or within the next 100 hours TIS after the Wahib Mina, Aerospace Engineer, effective date of this AD, whichever occurs Airframe Branch, ANM–120L, FAA, Los later, accomplish the following: 14 CFR Part 39 Angeles Aircraft Certification Office, (1) Reinforce the wing lower skin at the [Docket No. 95±NM±123±AD; Amendment 3960 Paramount Boulevard, Lakewood, landing gear bay cutouts at WS 115 in 39±9324; AD 95±16±05] California 90712; telephone (310) 627– accordance with Jetstream SB 57–JM5221, 5324; fax (310) 627–5210. dated September 28, 1984. This is referred to Airworthiness Directives; McDonnell as Modification 5221. SUPPLEMENTARY INFORMATION: The FAA Douglas Model MD±11 Series received a report indicating that a (2) Reinforce the wing lower skin at Airplanes undercarriage bay cutouts between WS 60 potential failure condition exists and WS 90 in accordance with Part 2 of AGENCY: Federal Aviation relative to the lower drag link (assembly Modification No. 5146 Ref. 7/5146, dated Administration, DOT. part number ACG7208–507 and detail October 1984. part number ACG7208–17) of the nose ACTION: Final rule; request for (c) Special flight permits may be issued in landing gear (NLG) installed on comments. accordance with sections 21.197 and 21.199 McDonnell Douglas Model MD–11 of the Federal Aviation Regulations (14 CFR series airplanes. This condition is the 21.197 and 21.199) to operate the airplane to SUMMARY: This amendment adopts a new airworthiness directive (AD) that is result of improper de-embrittlement a location where the requirements of this AD treatment of a certain batch of drag links can be accomplished. applicable to certain McDonnell (d) An alternative method of compliance or Douglas Model MD–11 series airplanes. during manufacturing. The discrepant adjustment of compliance time that provides This action requires an inspection to drag links are identifiable by serial an equivalent level of safety, may be identify defective lower drag links on number. Failure of the lower drag link approved by the Manager, Brussels Aircraft the nose landing gear (NLG), and on the NLG, if not corrected, could Certification Office (ACO), Europe, Africa, replacement of defective drag links with result in collapse of the NLG. Middle East office, FAA, c/o American new parts. This amendment is prompted The FAA has reviewed and approved Embassy, B–1000 Brussels, Belgium. The by a report indicating that a potential McDonnell Douglas Alert Service request shall be forwarded through an failure condition of the lower drag link Bulletin MD11–32A058, dated June 30, appropriate FAA Maintenance Inspector, on the NLG could occur due to 1995, which describes procedures for a who may add comments and then send it to one-time visual inspection to identify the Manager, Brussels ACO. improper de-embrittlement treatment of the drag link during manufacturing. The defective lower drag links on the NLG, Note 2: Information concerning the and replacement of defective drag links existence of approved alternative methods of actions specified in this AD are intended to prevent collapse of the NLG with new parts. The inspection involves compliance with this AD, if any, may be identifying the serial number of the obtained from the Brussels Aircraft due to failure of the lower drag link as lower drag links. Replacement of any Certification Office. a result of improper de-embrittlement treatment of the drag link. defective drag link found will minimize (e) The inspections and replacements the possibility of failure of the lower required by this AD shall be done in DATES: Effective August 17, 1995. drag link and subsequent collapse of the accordance with Jetstream Service Bulletin The incorporation by reference of No. 7/3, dated October 1980. The NLG. certain publications listed in the Since an unsafe condition has been reinforcements required by this AD shall be regulations is approved by the Director done in accordance with Jetstream Service identified that is likely to exist or Bulletin 57–JM5221, dated September 28, of the Federal Register as of August 17, develop on other Model MD–11 series 1984, or Modification No. 5146 Ref. 7/5146, 1995. airplanes of the same type design, this dated October 1984, as applicable. This Comments for inclusion in the Rules AD is being issued to prevent collapse incorporation by reference was approved by Docket must be received on or before of the NLG due to failure of the lower the Director of the Federal Register in October 2, 1995. drag link on the NLG. accordance with 5 U.S.C. 552(a) and 1 CFR ADDRESSES: Submit comments in This AD requires a one-time visual part 51. Copies may be obtained from triplicate to the Federal Aviation inspection to identify defective lower Jetstream Aircraft Limited, Manager, Product Administration (FAA), Transport Support, Prestwick Airport, Ayrshire, KA9 drag links on the NLG, and replacement 2RW Scotland; telephone (44–292) 79888; Airplane Directorate, ANM–103, of defective drag links with new parts. facsimile (44–292) 79703; or Jetstream Attention: Rules Docket No. 95–NM– The actions are required to be Aircraft Inc., Librarian, P.O. Box 16029, 123–AD, 1601 Lind Avenue SW., accomplished in accordance with the Dulles International Airport, Washington, Renton, Washington 98055–4056. alert service bulletin described D.C. 20041–6029; telephone (703) 406–1161; The service information referenced in previously. facsimile (703) 406–1469. Copies may be this AD may be obtained from This AD also requires that operators inspected at the FAA, Central Region, Office McDonnell Douglas Corporation, 3855 submit a report of inspection results to of the Assistant Chief Counsel, Room 1558, Lakewood Boulevard, Long Beach, the FAA. 601 E. 12th Street, Kansas City, Missouri, or California 90846, Attention: Technical This AD requires that the inspection at the Office of the Federal Register, 800 Publications Business Administration, be accomplished within 120 days. A North Capitol Street, NW., 7th Floor, suite 700, Washington, DC. Department C1–L51 (2–60). This compliance time of 120 days is usually (f) This amendment (39–9326) supersedes information may be examined at the sufficient to provide for a brief period AD 83–05–01, Amendment 39–4573. FAA, Transport Airplane Directorate, for public comment before the adoption (g) This amendment (39–9326) becomes 1601 Lind Avenue, SW., Renton, of a final rule. In this AD, however, that effective on September 26, 1995. Washington; or at the FAA, Los Angeles compliance time was selected because 39246 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations of a short-term problem with availability environmental, and energy aspects of Authority: 49 USC 106(g), 40101, 40113, of sufficient replacement parts if the rule that might suggest a need to 44701. defective parts are found; a shorter modify the rule. All comments § 39.13 [Amended] compliance time might have resulted in submitted will be available, both before 2. Section 39.13 is amended by the unnecessary removal of airplanes and after the closing date for comments, adding the following new airworthiness from service pending delivery of in the Rules Docket for examination by replacement parts. Nevertheless, the interested persons. A report that directive: 95–16–05 McDonnell Douglas: Amendment FAA has determined that immediate summarizes each FAA-public contact 39–9324. Docket 95–NM–123–AD. adoption of this rule is necessary in this concerned with the substance of this AD case because of the importance of will be filed in the Rules Docket. Applicability: Model MD–11 series initiating the required inspection and Commenters wishing the FAA to airplanes, manufacturer’s fuselage numbers acknowledge receipt of their comments 0447 through 0527 inclusive, certificated in eliminating the discrepant parts from any category. the fleet as soon as possible. submitted in response to this rule must As a result of recent communications submit a self-addressed, stamped Note 1: This AD applies to each airplane identified in the preceding applicability with the Air Transport Association postcard on which the following provision, regardless of whether it has been (ATA) of America, the FAA has learned statement is made: ‘‘Comments to modified, altered, or repaired in the area that, in general, some operators may Docket Number 95–NM–123–AD.’’ The subject to the requirements of this AD. For misunderstand the legal effect of AD’s postcard will be date stamped and airplanes that have been modified, altered, or on airplanes that are identified in the returned to the commenter. repaired so that the performance of the applicability provision of the AD, but The regulations adopted herein will requirements of this AD is affected, the that have been altered or repaired in the not have substantial direct effects on the owner/operator must use the authority area addressed by the AD. The FAA States, on the relationship between the provided in paragraph (d) of this AD to national government and the States, or request approval from the FAA. This points out that all airplanes identified in approval may address either no action, if the the applicability provision of an AD are on the distribution of power and current configuration eliminates the unsafe legally subject to the AD. If an airplane responsibilities among the various condition; or different actions necessary to has been altered or repaired in the levels of government. Therefore, in address the unsafe condition described in affected area in such a way as to affect accordance with Executive Order 12612, this AD. Such a request should include an compliance with the AD, the owner or it is determined that this final rule does assessment of the effect of the changed operator is required to obtain FAA not have sufficient federalism configuration on the unsafe condition approval for an alternative method of implications to warrant the preparation addressed by this AD. In no case does the compliance with the AD, in accordance of a Federalism Assessment. presence of any modification, alteration, or The FAA has determined that this repair remove any airplane from the with the paragraph of each AD that applicability of this AD. provides for such approvals. A note has regulation is an emergency regulation that must be issued immediately to Compliance: Required as indicated, unless been included in this rule to clarify this accomplished previously. long-standing requirement. correct an unsafe condition in aircraft, Since a situation exists that requires To prevent collapse of the nose landing and that it is not a ‘‘significant gear (NLG) due to failure of the lower drag the immediate adoption of this regulatory action’’ under Executive link on the NLG, accomplish the following: regulation, it is found that notice and Order 12866. It has been determined (a) Within 120 days after the effective date opportunity for prior public comment further that this action involves an of this AD, perform a visual inspection to hereon are impracticable, and that good emergency regulation under DOT identify the serial number of the lower drag cause exists for making this amendment Regulatory Policies and Procedures (44 link (assembly part number ACG7208–507 effective in less than 30 days. FR 11034, February 26, 1979). If it is and detail part number ACG7208–17) on the Comments Invited determined that this emergency NLG, in accordance with McDonnell Douglas Alert Service Bulletin MD11–32A058, dated Although this action is in the form of regulation otherwise would be significant under DOT Regulatory June 30, 1995. Prior to further flight, replace a final rule that involves requirements any lower drag link having a serial number affecting flight safety and, thus, was not Policies and Procedures, a final identified in Figure 1 of the alert service preceded by notice and an opportunity regulatory evaluation will be prepared bulletin with a new part having a serial for public comment, comments are and placed in the Rules Docket. A copy number other than those identified in Figure invited on this rule. Interested persons of it, if filed, may be obtained from the 1 of the alert service bulletin. Perform the are invited to comment on this rule by Rules Docket at the location provided replacement in accordance with the alert submitting such written data, views, or under the caption ADDRESSES. service bulletin. arguments as they may desire. (b) Within 10 days after accomplishing the List of Subjects in 14 CFR Part 39 inspection required by this AD, report Communications shall identify the Air transportation, Aircraft, Aviation inspection results, positive or negative, to the Rules Docket number and be submitted Manager, Los Angeles Aircraft Certification in triplicate to the address specified safety, Incorporation by reference, Safety. Office (ACO), FAA, Transport Airplane under the caption ADDRESSES. All Directorate, 3960 Paramount Boulevard, communications received on or before Adoption of the Amendment Lakewood, California 90712; fax (310) 627– 5210. Information collection requirements the closing date for comments will be Accordingly, pursuant to the considered, and this rule may be contained in this regulation have been authority delegated to me by the approved by the Office of Management and amended in light of the comments Administrator, the Federal Aviation received. Factual information that Budget (OMB) under the provisions of the Administration amends part 39 of the Paperwork Reduction Act of 1980 (44 U.S.C. supports the commenter’s ideas and Federal Aviation Regulations (14 CFR 3501 et seq.) and have been assigned OMB suggestions is extremely helpful in part 39) as follows: Control Number 2120–0056. evaluating the effectiveness of the AD (c) After the effective date of this AD, no action and determining whether PART 39ÐAIRWORTHINESS person shall install on the NLG of any additional rulemaking action would be DIRECTIVES airplane a lower drag link (assembly part needed. number ACG7208–507 and detail part Comments are specifically invited on 1. The authority citation for part 39 number ACG7208–17) having a serial number the overall regulatory, economic, continues to read as follows: identified in Figure 1 of McDonnell Douglas Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39247 Alert Service Bulletin MD11–32A058, dated FOR FURTHER INFORMATION CONTACT: Adoption of the Amendment June 30, 1995. James Riley, System Management (d) An alternative method of compliance or In consideration of the foregoing, the Branch, ANM–530, Federal Aviation FAA amends 14 CFR part 71 as follows: adjustment of the compliance time that Administration, Docket No. 95–ANM– provides an acceptable level of safety may be used if approved by the Manager, Los 11, 1601 Lind Avenue S.W., Renton, PART 71Ð[AMENDED] Washington, 98055–4056; telephone Angeles ACO, FAA, Transport Airplane 1. The authority citation for 14 CFR Directorate. Operators shall submit their number: (206) 227–2537. requests through an appropriate FAA part 71 continues to read as follows: SUPPLEMENTARY INFORMATION: Principal Maintenance Inspector, who may Authority: 49 U.S.C. 106(g), 40103, 40113, add comments and then send it to the History 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Manager, Los Angeles ACO. 1963 Comp., p. 389; 14 CFR 11.69. Note 2: Information concerning the On May 9, 1995, the FAA proposed to § 71.1 [Amended] existence of approved alternative methods of amend part 71 of Federal Aviation compliance with this AD, if any, may be Regulations (14 CFR part 71) to amend 2. The incorporation by reference in obtained from the Los Angeles ACO. the Salt Lake City, Utah, Class E 14 CFR 71.1 of the Federal Aviation (e) Special flight permits may be issued in airspace area (60 FR 24595). This action Administration Order 7400.9B, Airspace accordance with sections 21.197 and 21.199 is necessary to accommodate a new Designations and Reporting Points, of the Federal Aviation Regulations (14 CFR instrument approach procedure at Salt dated July 18, 1994, and effective 21.197 and 21.199) to operate the airplane to Lake City International Airport, Salt September 16, 1994, is amended as a location where the requirements of this AD follows: can be accomplished. Lake City, Utah. The area will be (f) The inspection and replacement shall be depicted on aeronautical charts for pilot Paragraph 6005 Class E Airspace Areas done in accordance with McDonnell Douglas reference. Extending Upward From 700 Feet or Alert Service Bulletin MD11–32A058, dated Interested parties were invited to More Above the Surface of the Earth June 30, 1995. This incorporation by participate in the rulemaking * * * * * reference was approved by the Director of the proceeding by submitting written ANM UT E5 Salt Lake City, UT [Revised] Federal Register in accordance with 5 U.S.C. comments on the proposal. No 552(a) and 1 CFR part 51. Copies may be Salt Lake City International Airport, UT obtained from McDonnell Douglas comments were received. The (Lat. 40°47′13′′ N, long. 111°58′08′′ W) coordinates for this airspace docket are Corporation, 3855 Lakewood Boulevard, That airspace extending upward from 700 Long Beach, California 90846, Attention: based on North American Datum 83. feet above the surface bounded by a line Technical Publications Business Class E airspace areas extended upward beginning at lat. 41°00′00′′ N, long. Administration, Department C1–L51 (2–60). from 700 feet or more above the surface 111°45′03′′ W, thence south along long. Copies may be inspected at the FAA, of the earth are published in Paragraph 111°45′03′′ W, to lat. 40°22′30′′ N, thence Transport Airplane Directorate, 1601 Lind 6005 of FAA Order 7400.9B dated July southeast to lat. 40°10′20′′ N, long. Avenue, SW., Renton, Washington; or at the 18, 1994, and effective September 16, 111°35′03′′ W, thence southwest to lat. FAA, Los Angeles Aircraft Certification 1994, which is incorporated by 40°03′30′′ N, long. 111°48′33′′ W, thence Office, Transport Airplane Directorate, 3960 northwest to lat. 40°43′00′′ N, long. Paramount Boulevard, Lakewood, California; reference in 14 CFR 71.1. The Class E ° ′ ′′ airspace designation listed in this 112 22 03 W, thence north along long. or at the Office of the Federal Register, 800 112°22′03′′ W, to lat. 41°00′00′′ N, thence east North Capitol Street NW., suite 700, document will be published along lat. 41°00′00′′ N, to the point of Washington, DC. subsequently in the Order. beginning; that airspace extending upward (g) This amendment becomes effective from 1,200 feet above the surface bounded on The Rule ° ′ ′′ on August 17, 1995. the north by lat. 41 00 00 N, on the east by This amendment to part 71 of Federal long. 111°25′33′′ W, on the south by lat. Issued in Renton, Washington, on July 24, 39°56′30′′ N, to long. 111°55′03′′ W, thence 1995. Aviation Regulations amends Class E ° ′ ′′ airspace at Salt Lake City, Utah. The south along long. 111 55 03 W, to lat. Darrell M. Pederson, 39°48′00′′ N, long. 111°55′03′′ W, thence FAA has determined that this regulation ° ′ ′′ Acting Manager, Transport Airplane south along long. 111 55 03 W, to lat. only involves an established body of ° ′ ′′ ° ′ ′′ Directorate, Aircraft Certification Service. 39 48 00 N, long. 111 55 03 W, thence technical regulations for which frequent south to lat. 39°04′00′′ N, long. 112°27′30′′ W, [FR Doc. 95–18586 Filed 8–1–95; 8:45 am] and routine amendments are necessary thence northwest to lat. 39°48′00′′ N, long. BILLING CODE 4910±13±U to keep them operationally current. It, 112°50′00′′ W, thence west via lat. 39°48′00′′ therefore, (1) is not a ‘‘significant N, to the east edge of Restricted Area R– regulation action’’ under Executive 6402A, and on the west by the east edge of 14 CFR Part 71 Order 12866; (2) is not a ‘‘significant Restricted Area R–6402A, Restricted Area R– [Airspace Docket No. 95±ANM±11] rule’’ under DOT Regulatory Policies 6402B and Restricted Area R–6406B and long. 113°00′03′′ W; that airspace of Salt Lake and Procedures (44 FR 11034; February City extending upward from 11,000 feet MSL Amendment of Class E Airspace; Salt 26, 1979); and (3) does not warrant Lake City, Utah bounded on the northwest by the southeast preparation of a regulatory evaluation as edge of V–32, on the southeast by the AGENCY: Federal Aviation the anticipated impact is so minimal. northwest edge of V–235, on the southwest Administration (FAA), DOT. Since this is a routine matter that will by the northeast edge of V–101 and on the east by long. 111°25′33′′ W; excluding that ACTION: Final rule. only affect air traffic procedures and air navigation, it is certified that this rule airspace within the Evanston, WY, 1,200-foot SUMMARY: This action amends the Salt will not have a significant economic Class E airspace area; that airspace southeast impact on a substantial number of small of Salt Lake City extending upward from Lake City, Utah, Class E airspace. This 13,500 feet MSL bounded on the northeast by action is necessary to accommodate a entities under the criteria of the the southwest edge of V–484, on the south by new instrument approach procedure at Regulatory Flexibility Act. the north edge of V–200 and on the west by ° ′ ′′ Salt Lake City International Airport, Salt List of Subjects in 14 CFR Part 71 long. 111 25 33 W; excluding the portion Lake City, Utah. within Restricted Area R–6403 and the EFFECTIVE DATE: 0901 UTC, November 9, Airspace, Incorporation by reference, Bonneville, UT Class E airspace area. 1995. Navigation (air). * * * * * 39248 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations Issued in Seattle, Washington, on July 5, implementation of regulations by the Office of Management and 1995. appearing in the individual parts of Budget (OMB) pursuant to the Richard E. Prang, titles 15 and 50; this final rule does not Paperwork Reduction Act (PRA). NOAA Acting Manager, Air Traffic Division, involve any new reporting or intends that this part comply with the Northwest Mountain Region. recordkeeping requirements. In requirements of section 3507(c)(B)(i) of [FR Doc. 95–18917 Filed 8–1–95; 8:45 am] addition, the list of OMB approval the PRA, which requires that agencies BILLING CODE 4910±13±M numbers is corrected and updated to inventory and display a current control reflect the currently valid OMB number assigned by the Director of approvals, and the text of § 902.1(a) is OMB for each agency information DEPARTMENT OF COMMERCE updated to reflect the Paperwork collection requirement. Reduction Act of 1995. (b) Display. National Oceanic and Atmospheric Under NOAA Administrative Order Administration 205–11, 7.01, dated December 17, 1990, CFR part or section where the information Current OMB control the Under Secretary for Oceans and collection requirement number (all numbers 15 CFR Part 902 Atmosphere has delegated authority to is located begin with 0648±) sign material for publication in the 50 CFR Part 204 Federal Register to the Assistant 15 CFR Administrator for Fisheries, NOAA. Part 908 ...... ±0025. [Docket No. 950203036±5180±02; I.D. Part 911 ...... ±0157. 070695A] Classification 917.11 ...... ±0008, ±0019 and Because this rule only consolidates ±0034. NOAA Information Collection 917.22 ...... ±0008, ±0019 and Requirements; Update and existing information for purposes of ±0034. Consolidation public information, it is strictly 917.30(b) ...... ±0008, ±0019 and administrative in nature; no useful ±0034. AGENCY: National Marine Fisheries purpose would be served by providing 917.41 ...... ±0008, ±0019 and Service (NMFS), National Oceanic and prior notice and opportunity for ±0034. Atmospheric Administration (NOAA), comment on this rule. Accordingly, 917.43(c) ...... ±0119. Commerce. under 5 U.S.C. 553(b)(B), it is 918.7 ...... ±0147. ACTION: Final rule; technical unnecessary to provide such notice and Part 921, subpart B ±0121. amendment. Part 923 ...... ±0119. opportunity for comment. Also, because 924.6 ...... ±0141. this rule is only administrative in nature SUMMARY: NMFS consolidates and 928.3 ...... ±0119. and is not a ‘‘substantive rule’’ under 5 929.10 ...... ±0141. updates Office of Management and U.S.C. 553(d), it will be immediately 935.9 ...... ±0141. Budget (OMB) control numbers for effective upon publication. 936.8 ...... ±0141. NOAA information collection This rule is exempt from review 937.8 ...... ±0141. requirements and makes minor under E.O. 12866. 938.8 ...... ±0141. corrections to the accompanying text. 941.11 ...... ±0141. The intent is to update, simplify, and List of Subjects in 15 CFR Part 902 and 942.8 ...... ±0141. shorten the regulations, while still 50 CFR Part 204 943.10 ...... ±0141. 944.9 ...... ±0141. making this information available to the Reporting and recordkeeping public. Part 960, subpart B .. ±0174. requirements. Part 970 ...... ±0145. EFFECTIVE DATE: August 2, 1995. Dated: July 25, 1995. Part 971 ...... ±0170. FOR FURTHER INFORMATION CONTACT: Richard H. Schaefer, Part 981 ...... ±0144. 50 CFR George H. Darcy, NMFS, 301/713–2344. Acting Assistant Administrator for Fisheries, 216.22 ...... ±0178. SUPPLEMENTARY INFORMATION: NOAA. Part 902 of 216.23 ...... ±0179. title 15 CFR and part 204 of title 50 CFR For the reasons set out in the 216.24(b) ...... ±0083. display control numbers assigned to preamble, under the authority of 44 216.24(c) ...... ±0083. NOAA and NMFS information U.S.C. 3501 et seq., 50 CFR chapter II 216.24(d) ...... ±0083, ±0084, ±0099 collection requirements, respectively, by and 15 CFR chapter IX are amended as and ±0217. OMB, pursuant to the Paperwork follows: 216.24(e) ...... ±0040. Reduction Act. These parts fulfill the 216.31 ...... ±0084. requirement that agencies display a 15 CFR Chapter IX 216.33 ...... ±0084. current control number, assigned by the 1. 15 CFR part 902 is revised to read 216.45 ...... ±0084. as follows: 222.11±2 ...... ±0078. Director of OMB, for each agency 222.11±8 ...... ±0079. information collection requirement. 222.12±7 ...... ±0078. This final rule, technical amendment, PART 902ÐNOAA INFORMATION COLLECTION REQUIREMENTS UNDER 222.12±8 ...... ±0078. consolidates the list of OMB control 222.22 ...... ±0230. numbers associated with NOAA THE PAPERWORK REDUCTION ACT: 222.23 ...... ±0084. information collection requirements OMB CONTROL NUMBERS 227.72 ...... ±0230 and ±0267. 228.4 ...... ±0151. contained in regulations appearing in Authority: 44 U.S.C. 3501 et seq. CFR titles 15 and 50. Because NMFS is 228.6 ...... ±0151. a component of NOAA, these parts § 902.1 OMB control numbers assigned 228.14 ...... ±0151. pursuant to the Paperwork Reduction Act. 228.25 ...... ±0151. logically can be combined to shorten the 228.37 ...... ±0151. regulations and to ease use by the (a) Purpose. This part collects and 228.55 ...... ±0151. public. All of the collection-of- displays the control numbers assigned 229.5 ...... ±0224. information requirements consolidated to information collection requirements 229.6 ...... ±0225. in 15 CFR 902.1(b) have previously been of the National Oceanic and 229.7 ...... ±0225. submitted to OMB for approval during Atmospheric Administration (NOAA) 255.4 ...... ±0012. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39249 CFR part or section CFR part or section CFR part or section where the information Current OMB control where the information Current OMB control where the information Current OMB control collection requirement number (all numbers collection requirement number (all numbers collection requirement number (all numbers is located begin with 0648±) is located begin with 0648±) is located begin with 0648±) 259.30 ...... ±0090. 646.5 ...... ±0013 and ±0016. 681.24 ...... ±0214. 259.35 ...... ±0041. 646.6 ...... ±0205. 681.25 ...... ±0214. 260.103 ...... ±0266. 646.10 ...... ±0262. 681.30 ...... ±0204. 280.10 ...... ±0148. 649.4 ...... ±0202. 683.4 ...... ±0214. 280.50 ...... ±0202. 649.5 ...... ±0202. 683.9 ...... ±0204 and ±0214. 280.51 ...... ±0239. 649.6 ...... ±0202. 683.21 ...... ±0204. 280.53 ...... ±0040. 650.4 ...... ±0202. 683.25 ...... ±0204. 282.3 ...... ±0218. 650.5 ...... ±0202. 683.27 ...... ±0214. 282.5 ...... ±0218. 650.6 ...... ±0202. 683.29 ...... ±0214. 285.7 ...... ±0202. 650.7 ...... ±0018, ±0212 and 685.4 ...... ±0214. 285.8 ...... ±0202. ±0229. 685.9 ...... ±0204. 285.21 ...... ±0202. 650.24 ...... ±0202. 685.11 ...... ±0214. 285.27 ...... ±0247. 650.25 ...... ±0202. 685.13 ...... ±0214. 285.28 ...... ±0202. 650.26 ...... ±0202. 685.14 ...... ±0214. 285.29 ...... ±0239. 650.28 ...... ±0202. 685.15 ...... ±0204. 285.52 ...... ±0202. 651.4 ...... ±0202. 685.24 ...... ±0214. 285.53 ...... ±0168. 651.5 ...... ±0202. 695.4 ...... ±0205. 285.54 ...... ±0239. 651.6 ...... ±0202. 695.5 ...... ±0016. 285.55 ...... ±0239. 651.7 ...... ±0018, ±0212 and 285.201 ...... ±0040. ±0229. 50 CFR Chapter II 296.5 ...... ±0082. 651.20 ...... ±0202. 299.3 ...... ±0228. 651.21 ...... ±0202. PART 204Ð[REMOVED] 299.4 ...... ±0228. 651.22 ...... ±0202. 299.5 ...... ±0228. 651.28 ...... ±0202. 2. 50 CFR part 204 is removed. 380.4 ...... ±0194. 651.29 ...... ±0202. [FR Doc. 95–18638 Filed 8–1–95; 8:45 am] 380.5 ...... ±0194. 652.4 ...... ±0202. 380.6 ...... ±0194. 652.5 ...... ±0202. BILLING CODE 3510±22±P 380.8 ...... ±0194. 652.6 ...... ±0212 and ±0229. 380.20 ...... ±0194. 652.9 ...... ±0202. 380.24 ...... ±0194. 652.20 ...... ±0238. 15 CFR Part 905 380.28 ...... ±0194. 652.24 ...... ±0240. [Docket No. 950104002±5188±02; 601.37 ...... ±0192. 653.5 ...... ±0013. I.D. 061394C] 611.3 ...... ±0089. 655.4 ...... ±0202. 611.4 ...... ±0075. 658.5 ...... ±0013. RIN 0648±AE40 611.6 ...... ±0075. 661.4 ...... ±0222. 611.8 ...... ±0075. 661.20 ...... ±0222. Use in Enforcement Proceedings of 611.9 ...... ±0075. 663.4 ...... ±0271. Information Collected by Voluntary 611.12 ...... ±0075. 663.10 ...... ±0203. Fishery Data Collectors 611.50 ...... ±0075. 663.11 ...... ±0203. 611.61 ...... ±0075. 663.33 ...... ±0203. AGENCY: National Oceanic and 611.70 ...... ±0075. 669.6 ...... ±0205. Atmospheric Administration (NOAA), 611.80 ...... ±0075. 672.4 ...... ±0206. Commerce. 611.81 ...... ±0075. 672.5 ...... ±0213. ACTION: Final rule. 611.82 ...... ±0075. 672.6 ...... ±0206. 611.90 ...... ±0075. 674.4 ...... ±0206. SUMMARY: The Secretary of Commerce 611.92 ...... ±0075. 675.4 ...... ±0206. (Secretary), through NOAA, publishes 611.93 ...... ±0075. 675.5 ...... ±0213. this final rule restricting the use of 611.94 ...... ±0075. 675.6 ...... ±0206. information collected by voluntary 625.4 ...... ±0202. 675.27 ...... ±0269. 625.5 ...... ±0202. 676.3 ...... ±0206. fishery data collectors (VFDC). This rule 625.6 ...... ±0018, ±0212 and 676.4 ...... ±0206. limits the extent to which such ±0229. 676.5 ...... ±0206. information can be used in civil and 625.20 ...... ±0202. 676.13 ...... ±0272. criminal enforcement proceedings 625.27 ...... ±0202. 676.14 ...... ±0272. conducted pursuant to the Magnuson 628.4 ...... ±0202. 676.17 ...... ±0272. Fishery Conservation and Management 630.4 ...... ±0205. 676.20 ...... ±0272. Act (Magnuson Act), the Endangered 630.5 ...... ±0013 and ±0016. 676.21 ...... ±0272. Species Act (ESA), and the Marine 630.10 ...... ±0016. 676.25 ...... ±0269. Mammal Protection Act (MMPA). In 630.31 ...... ±0277. 677.4 ...... ±0206. 638.4 ...... ±0205. 677.6 ...... ±0280. implementing these regulations, NOAA 638.5 ...... ±0016. 677.10 ...... ±0280. seeks to encourage the use of VFDCs by 638.27 ...... ±0016. 678.4 ...... ±0205. the fishing industry, while protecting 640.4 ...... ±0205. 678.5 ...... ±0013, ±0016 and the necessary use of observer 641.4 ...... ±0205. ±0229. information by law enforcement 641.5 ...... ±0013 and ±0016. 678.10 ...... ±0016. personnel. 642.4 ...... ±0205. 680.4 ...... ±0204. EFFECTIVE DATE: August 2, 1995. 642.5 ...... ±0013 and ±0016. 680.5 ...... ±0214. FOR FURTHER INFORMATION CONTACT 644.24 ...... ±0216. 680.10 ...... ±0204. : Joel 645.4 ...... ±0205. 681.4 ...... ±0204. La Bissonniere, (301) 427–2202. 645.6 ...... ±0205. 681.5 ...... ±0214. SUPPLEMENTARY INFORMATION: Section 646.4 ...... ±0205. 681.10 ...... ±0214. 303(f) of the Magnuson Act calls upon 39250 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations the Secretary to issue regulations that a total prohibition is contrary to the unrelated to the purposes of part 905, restrict, in civil and criminal plain language of the statute. Section simply because the evidence was enforcement proceedings conducted 303(f) of the Magnuson Act calls for acquired through information collected under the Magnuson Act, MMPA, and regulations that restrict the use of VFDC by a VFDC. ESA, the use of information collected by information in enforcement Comment: Manomet believes that VFDCs for conservation and proceedings. The statute does not call information collected by a VFDC should management purposes while aboard a for a total prohibition on the use of be admissible if a VFDC, stationed vessel. VFDC information. aboard one vessel, observes a violation On March 3, 1995, NOAA published Second, a total prohibition is that is committed aboard another vessel. a proposed rule in the Federal Register inconsistent with the larger goals Response: NOAA agrees with this (60 FR 11947) implementing this established by Congress. All three statutory mandate. The proposed rule statutes seek to manage and conserve comment. Under these regulations, encouraged industry participation in living marine resources through the information collected by a VFDC may voluntary observer programs by limiting acquisition of scientific data and not be introduced by the government the risk of prosecution based upon through effective enforcement. against any consenting party to an information collected by a VFDC. The Historically, observers have played a enforcement proceeding. A consenting proposed rule also protected essential critical role in facilitating both goals. A party is defined to include only the law enforcement activities by allowing total prohibition ignores the essential owner, operator, or crewmember of a the use of VFDC information in limited role played by enforcement. By vessel carrying a VFDC. circumstances. With this proposed rule, restricting the use of VFDC information, Comment: Manomet believes that NOAA sought to balance two equally NOAA seeks to balance these important NOAA should clarify which observer important methods of conserving and management tools, providing industry programs are entitled to the evidentiary managing living marine resources: The with an incentive to carry voluntary protections afforded by these use of observer data for scientific observers, while protecting the regulations. Some uncertainty remains purposes and for compliance government’s ability to use such since some programs that are mandatory monitoring. information in very limited in nature, are operated on a voluntary Under the proposed rule, information circumstances. basis. With such programs, confusion collected by a VFDC may not initially be Third, a total prohibition is exists as to whether observers are introduced as evidence by the constitutionally suspect. In certain stationed on a voluntary or mandatory government against any consenting instances, information collected by a basis. owner that is a party to an enforcement VFDC may establish a party’s Response: Pursuant to section 303(f) proceeding. By contrast, any party other innocence. Denying a party the right to of the Magnuson Act, NOAA must than the government may introduce use VFDC information in a criminal implement regulations restricting the such information, presumably for proceeding might run counter to a use of observer information, when the purposes of establishing innocence. party’s right to compulsory process observer stationed aboard a vessel is not Once introduced, however, any party under the Sixth Amendment of the U.S. required by the Magnuson Act, MMPA, including the government may Constitution. ESA, or implementing regulations. introduce all other information Comment: Manomet is opposed to the Consistent with this mandate, these collected by the VFDC. use of VFDC information for evidentiary restrictions only apply The proposed rule provided two investigative purposes. In a somewhat when the observer is stationed aboard a exceptions to these general restrictions. related comment, CMC supports the use vessel under a purely voluntary scheme. First, the restrictions do not apply to the of independent evidence derived from These restrictions do not apply to use of independent evidence derived information collected by VFDCs. mandatory programs that are operated from information collected by a VFDC. Response: Consistent with section on a voluntary basis. Second, the restrictions do not apply in 303(f) of the Magnuson Act, these regulations only govern the use of VFDC Comment: Manomet supports the any enforcement proceeding alleging the government’s ability to use information assault, intimidation, or harassment of information in civil and criminal enforcement proceedings. They do not collected by a VFDC in any enforcement any person, or the impairment or proceeding that alleges the assault, interference with the duties of a VFDC. control the use of VFDC information for other investigative purposes. intimidation, or harassment of an Comments and Responses Information obtained by VFDCs may be observer. Comments on this proposed rule were used for investigative purposes, Response: NOAA agrees with this invited until May 2, 1995. Two provided that it is accessible to comment. In fact, these evidentiary organizations responded: The Center for enforcement personnel. restrictions do not apply in any Marine Conservation (CMC); and the These regulations, however, do not enforcement proceeding that alleges the Manomet Observatory for Conservation expand enforcement’s authority to assault, intimidation, or harassment of and Sciences (Manomet). access information collected by VFDCs. any person, including a VFDC. This Comment: Manomet believes that the Rather, access to information collected expansive language is premised upon restrictions outlined in the proposed by VFDCs remains subject to existing the view that these restrictions seek to rule will not adequately encourage statutory, regulatory and internal agency reduce the risk of prosecution for industry participation with voluntary provisions that govern access to various fishing-related violations. They are not observer programs. Rather, industry categories of information collected by designed to shield misconduct participation would be enhanced if the government. unrelated to fishing activities. NOAA prohibited the use, in any NOAA supports the use, in Changes From the Proposed Rule prosecution against a consenting owner, enforcement proceedings, of of information collected by a VFDC. independent evidence derived from The language of this final rule is Response: A total prohibition on the information collected by VFDCs. Absent identical to the language contained in use of VFDC information is this exception, prosecutors might be the proposed rule that was published on inappropriate for several reasons. First, denied use of relevant evidence, wholly March 3, 1995. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39251 Classification Information means all observations, (c) Independent evidence derived This action has been determined to be data, statistics, photographs, film, or from information collected by a not significant for the purposes of E.O. recordings collected by a voluntary voluntary fishery data collector may be 12866. fishery data collector for conservation introduced by any party, including the The Assistant General Counsel for and management purposes, as defined Secretary, in an enforcement Legislation and Regulation of the by the Magnuson Act, MMPA, or ESA, proceeding. while onboard the vessel of a consenting Department of Commerce certified to § 905.5 Exceptions. the Chief Counsel for Advocacy of the owner. The provisions of this part shall not Small Business Administration that this Magnuson Act means the Magnuson apply in any enforcement proceeding rule would not have a significant Fishery Conservation and Management against a consenting owner that alleges economic impact on a substantial Act, as amended, 16 U.S.C. 1801 et seq., the actual or attempted: number of small entities. The reasons and implementing regulations. (a) Assault, intimidation, or were published along with the proposed MMPA means the Marine Mammal harassment (including sexual rule. As a result, a regulatory flexibility Protection Act, as amended, 16 U.S.C. harassment) of any person; or analysis was not prepared. 1361 et seq., and implementing regulations. (b) Impairment or interference with List of Subjects in 15 CFR Part 905 Secretary means the Secretary of the duties of a voluntary fishery data Fisheries, Statistics. Commerce, the Secretary of the Interior, collector. their chosen designees, or any other [FR Doc. 95–18899 Filed 8–1–95; 8:45 am] Dated: July 26, 1995. Federal agency authorized to enforce the BILLING CODE 3510±22±F Terry D. Garcia, provisions of the Magnuson Act, General Counsel, National Oceanic and MMPA, or ESA. Atmospheric Administration. Vessel means any vessel as defined at DEPARTMENT OF ENERGY For the reasons set out in the 16 U.S.C. 1802(31). preamble, 15 CFR part 905 is added to Voluntary fishery data collector Federal Energy Regulatory read as follows: means: Commission (1) Any person, including an observer PART 905ÐUSE IN ENFORCEMENT or a sea sampler; 18 CFR Part 35 PROCEEDINGS OF INFORMATION (2) Placed aboard a vessel by the COLLECTED BY VOLUNTARY Secretary; [Docket No. RM94±14±001] FISHERY DATA COLLECTORS (3) For the purpose of collecting Nuclear Plant Decommissioning Trust information; and Fund Guidelines; Order Granting Sec. (4) Whose presence aboard that vessel 905.1 Scope. Rehearing for Purpose of Further is not required by the Secretary Consideration and Granting Limited 905.2 Definitions. pursuant to provisions of the Magnuson 905.3 Access to information. Stay of Certain Portions of Final Rule 905.4 Use of information. Act, MMPA, or ESA, or their 905.5 Exceptions. implementing regulations. Issued July 27, 1995. AGENCY: Federal Energy Regulatory § 905.3 Access to information. Authority: 16 U.S.C. 1853(f). Commission. Information collected by a voluntary ACTION: § 905.1 Scope. fishery data collector: Final rule; order granting This part applies to the use, in (a) Is subject to disclosure to both the rehearing for purpose of further enforcement proceedings conducted Secretary and the public, to the extent consideration and granting limited stay pursuant to the Magnuson Act, the required or authorized by law; and of certain provisions of final rule. MMPA, and the ESA, of information (b) Is subject to discovery by any party SUMMARY: The Federal Energy collected by voluntary fishery data to an enforcement proceeding, to the Regulatory Commission (Commission) is collectors. extent required or authorized by law. granting rehearing for the purpose of § 905.2 Definitions. § 905.4 Use of information. further considering the matters that parties have raised in requests for When used in this part: (a) Except as provided for in rehearing and clarification and is Consenting owner means the owner, paragraph (b) of this section, staying certain provisions of the Final operator, or crewmember of a vessel information collected by a voluntary Rule. The provisions that the carrying a voluntary fishery data fishery data collector may not be Commission is staying involve the collector. introduced by the Secretary as evidence requirements that: Public utilities create Enforcement proceeding means any against any consenting owner that is a a separate fund for Commission- judicial or administrative trial or party to an enforcement proceeding. hearing, initiated for the purpose of (b) Provided that all applicable jurisdictional Fund collections; and imposing any civil or criminal penalty evidentiary requirements are satisfied: Fund investment managers have a net authorized under the Magnuson Act, (1) Information collected by a worth of at least $100 million. The grant MMPA, or ESA, including but not voluntary fishery data collector may be of rehearing for the purpose of further limited to, any proceeding initiated to: introduced in an enforcement consideration and the stay of these Impose a monetary penalty; modify, proceeding by any party except the provisions will afford the Commission sanction, suspend or revoke a lease, Secretary; time to consider the merits of the license or permit; secure forfeiture of (2) If information is introduced parties’ requests. seized property; or incarcerate an pursuant to paragraph (b)(1) of this EFFECTIVE DATE: July 31, 1995. individual. section, all information collected by a FOR FURTHER INFORMATION CONTACT: ESA means the Endangered Species voluntary fishery data collector may be Joseph C. Lynch (Legal Information), Act, as amended, 16 U.S.C. 1531 et seq., introduced by any other party, Federal Energy Regulatory and implementing regulations. including the Secretary. Commission, Office of the General 39252 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations Counsel, 825 North Capitol Street NE., companies; Strong Capital Management, By the Commission. Washington, D.C. 20426, Telephone: Inc.; Commonwealth Edison Company; Lois D. Cashell, (202) 208–2128 Indiana Michigan Power Company; Secretary. James K. Guest (Accounting Maine Yankee Atomic Power Company; [FR Doc. 95–19034 Filed 7–28–95; 3:37 pm] Information), Office of Chief New England Public Power Nuclear BILLING CODE 6717±01±P Accountant, 825 North Capitol Street Customers; and Edison Electric NE., Washington, D.C. 20426, Institute. Telephone: (202) 219–2602. In the absence of Commission action 18 CFR Part 284 SUPPLEMENTARY INFORMATION: In within 30 days, the requests for addition to publishing the full text of [Docket No. RM93±4±008; Order No. 563± rehearing would be deemed to have E] this document in the Federal Register, been denied. 18 CFR 385.713. In order the Commission also provides all to allow sufficient time for due Standards for Electronic Bulletin interested persons an opportunity to consideration of the matters raised, we Boards Required Under Part 284 of the inspect or copy the contents of this will grant rehearing for the limited Commission's Regulations document during normal business hours purpose of further consideration. in Room 3401, at 941 North Capitol Issued July 27, 1995. A number of the parties request that Street NE., Washington, D.C. 20426. AGENCY: The Commission Issuance Posting the Commission stay the following Federal Energy Regulatory System (CIPS), an electronic bulletin provisions of the Final Rule while the Commission, DOE. board service, provides access to the requests for rehearing are pending: ACTION: Final rule; order modifying texts of formal documents issued by the 1. The requirement that public capacity release data sets. Commission. CIPS is available at no utilities must establish a separate SUMMARY: The Federal Energy charge to the user and may be accessed nuclear decommissioning trust fund for Regulatory Commission (Commission) is using a personal computer with a Commission-jurisdictional Fund issuing an order making changes to its modem by dialing (202) 208–1397. To collections; and capacity release data sets and Electronic access CIPS, set your communications 2. The requirement that a Fund Data Interchange implementation guide software to 19200, 14400, 12000, 9600, investment manager must have a net in response to a filing by the Electronic 7200, 4800, 2400 or 1200bps, full 2 worth of at least $100 million. Bulletin Board Working Group. The duplex, no parity, 8 data bits and 1 stop In acting on stay requests, the Commission’s order revises its bit. The full text of this document will Commission applies the standard set ‘‘Standardized Data Sets and be available on CIPS in ASCII and forth in the Administrative Procedure Communication Protocols,’’ available at WordPerfect 5.1 format. The complete Act,3 i.e., the stay will be granted if the the Commission’s Public Reference and text on diskette in WordPerfect format Commission finds that ‘‘justice so Files Maintenance Branch. may also be purchased from the 4 requires.’’ In this instance, we will EFFECTIVE DATE: Pipelines must Commission’s copy contractor, La Dorn grant a stay of the two challenged Systems Corporation, also located in implement the new requirements by provisions of the Final Rule so that we October 25, 1995. Room 3104, 941 North Capitol Street may further consider them while the ADDRESSES: NE., Washington, D.C. 20426. requests for rehearing are pending. Federal Energy Regulatory Commission, 825 North Capitol Street The remaining provisions of the Final [Docket No. RM94±14±001] NE., Washington, DC 20426. Rule will go into effect on July 31, 1995. FOR FURTHER INFORMATION CONTACT: Nuclear Plant Decommissioning Trust The Commission orders: Michael Goldenberg, Office of the Fund Guidelines; Order Granting (A) Rehearing is hereby granted for General Counsel, Federal Energy Rehearing for Purpose of Further the limited purpose of further Regulatory Commission, 825 North Consideration and Granting Limited consideration. Capitol Street NE., Washington, DC Stay of Certain Portions of Final Rule (B) The following note is added to the 20426, (202) 208–2294 Issued July 27, 1995. end of § 35.32 (18 CFR 35.32): Marvin Rosenberg, Office of Economic Policy, Federal Energy Regulatory Before Commissioners: Elizabeth Anne Note: The following provisions of this section are stayed as of July 31, 1995: Commission, 825 North Capitol Street Moler, Chair; Vicky A. Bailey, James J. NE., Washington, D.C. 20426, (202) Hoecker, William L. Massey, and Donald F. Santa, Jr. 1. The requirements in 18 CFR 208–1283 35.32(a)(1) and (f) that public utilities Brooks Carter, Federal Energy On June 16, 1995, the Commission must establish a separate nuclear Regulatory Commission, 825 North issued a Final Rule in Nuclear Plant decommissioning trust fund for Capitol Street NE., Washington, D.C. Decommissioning Trust Fund Commission-jurisdictional Fund 20426, (202) 501–8145. Guidelines,1 setting forth requirements collections. SUPPLEMENTARY INFORMATION: for the formation, organization and In purpose of nuclear plant 2. The requirement in 18 CFR addition to publishing the full text of decommissioning trust funds (Fund) 35.32(a)(4) (the words ‘‘and any other this document in the Federal Register, and for Fund investments. The Fiduciary’’) that a Fund investment the Commission also provides all Commission has received motions for manager must have a net worth of at interested persons an opportunity to stay and/or requests for rehearing and least $100 million. inspect or copy the contents of this document during normal business hours for clarification from: a group of Authority: 16 U.S.C. 791a–825r, 2601– investment management firms and trust 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. in Room 3104, 941 North Capitol Street companies; a group of public utility NE., Washington D.C. 20426. 2 See 60 FR 34117, 34123; slip op. at 37, 71–72. The Commission Issuance Posting 1 Nuclear Plant Decommissioning Trust Fund 3 5 U.S.C. 705. System (CIPS), an electronic bulletin Guidelines, Order No. 580, 60 FR 34109 (June 30, 4 See Power Authority of the State of New York, board service, provides access to the 1995), 71 FERC ¶ 61,350 (1995). 71 FERC ¶ 61,321 (1995). texts of formal documents issued by the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39253 Commission. CIPS is available at no comment stating that the field entitled receipt or delivery points. 7 The charge to the user and may be accessed discount indicator needs to be clarified. replacement shipper is subject to using a personal computer with a The discount indicator is a mandatory additional charges only when the modem by dialing (202) 208–1397. To ‘‘yes/no’’ field where: releasing shipper includes a specific access CIPS, set your communications ‘‘Y’’ signifies that the rates associated with condition in the release obligating the software to use 19200, 14400, 12000, the capacity being released include rates replacement shipper to pay the 9600, 7200, 4800, 2400, or 1200 bps, full discounted by transporter which could result additional charges resulting from its use duplex, no parity, 8 data bits, and 1 stop in additional charges to the bidder if other of alternate points. Absent an express bit. The full text of this document will than the Gas transaction points used to condition, the replacement shipper pays be available on CIPS in ASCII and describe the capacity are utilized, and ‘‘N’’ or blank, signifies that no discounts apply. the rate established by its bid and the WordPerfect 5.1 format. The complete releasing shipper is required to pay the text on diskette in WordPerfect format NGC states that this field was differential between the discount rate may also be purchased from the accepted at its behest to reflect the and the maximum rate. Commission’s copy contractor, La Dorn Commission’s decision in ANR,3 under In line with this policy, the Systems Corporation, also located in which a replacement shipper may be Commission clarifies that the discount Room 3104, 941 North Capitol Street assessed charges in excess of its bid if NE., Washington D.C. 20426. it uses alternate receipt or delivery indicator is to be coded ‘‘yes’’ only when the replacement shipper could be Order Modifying Capacity Release Data points. subject to additional charges for Sets NGC contends that, after the Working changing points. This clarification will Group filed the data sets, an ambiguity Before Commissioners: Elizabeth Anne ensure that replacement shippers became apparent. It is concerned that Moler, Chair; Vicky A. Bailey, James J. receive consistent and correct parties that were not a part of the Hoecker, William L. Massey, and Donald F. information about their potential Santa, Jr. Working Group process may interpret this provision to mean that the field exposure to additional charges. The On June 29, 1995, the Electronic language revision suggested by NGC Bulletin Board (EBB) Working Group would be coded as ‘‘yes’’ whenever a shipper is releasing capacity on which provides a better reflection of this intent submitted a consensus proposal to than the version proposed by the modify the capacity release data sets it pays discounted rates. NGC maintains that it and the Working Group’s intent Working Group and, therefore, will be adopted by the Commission in Order adopted. No. 563.1 The filing also contained was that the field be coded ‘‘yes’’ only proposed revisions to the Electronic when the replacement shipper would be Pipelines will be required to Data Interchange (EDI) implementation exposed to a higher rate for the use of implement the new fields within 90 guide relating to these changes. The alternate points. NGC requests days of the date of this order. The approved data sets and implementation clarification of this point and also ‘‘Standardized Data Sets and recommends revision to the description Communication Protocols’’ will be guide are included in a document 4 entitled ‘‘Standardized Data Sets and of the field to better reflect this intent. modified to include the new fields and Communication Protocols,’’ available at The Commission accepts the data sets will be made available at the the Commission’s Public Reference and and EDI implementation guide, and will Commission’s Public Reference and Files Maintenance Branch. grant the clarification and accept the Files Maintenance Branch. The Working Group requests that the proposed language revision requested changes become effective 90 days after by NGC. This clarification will help The Commission Orders ensure that the discount indicator field a Commission order to provide (A) The data sets and implementation sufficient implementation time. The is coded in a consistent manner so that replacement shippers can rely on the guide are accepted with the revision Working Group, through a filing made discussed in the body of this order. on May 11, 1995, also provided information provided. notification that, by consensus In El Paso 5 and ANR,6 the (B) Pipelines must implement the agreement, it intends to transfer future Commission explained that when a requirements of this order within 90 responsibility for maintenance of the replacement shipper obtains capacity days of the date of the order. capacity release data sets and for the PI that the pipeline sold to the releasing By the Commission. TM GRID Common Code Database to the shipper at a discount rate, the Lois D. Cashell, Gas Industry Standards Board. replacement shipper may be subject to Secretary. Pursuant to the process adopted by additional charges for using alternate the Commission to make modifications [FR Doc. 95–18957 Filed 8–1–95; 8:45 am] to the data sets,2 public notice of the 3 ANR Pipeline Company, 66 FERC ¶ 61,340, at BILLING CODE 6717±01±P June 29, 1995 filing was issued on July 62,130–32 (1994). 3, 1995, with comments due by July 12, 4 Specifically, NGC recommends the field be 1995. reworded to state: ‘‘Y’’ signifies that the rates associated with the Natural Gas Clearinghouse (NGC), a capacity being released include rates discounted by member of the Working Group, filed a transporter which that could result in additional charges to the bidder if other than the Gas 1 Standards For Electronic Bulletin Boards transaction points used to describe the capacity are Required Under Part 284 of the Commission’s utilized, and ‘‘N’’ or blank, signifies that no Regulations, Order No. 563, 59 FR 516 (Jan. 5, discounts such additional charges could apply. 1994), III FERC Stats. & Regs. Preambles ¶ 30,988 NGC states the revised definition should be (Dec. 23, 1993), order on reh’g, Order No. 563–A, included in both the ‘‘description of field’’ and the 59 FR 23624 (May 6, 1994), III FERC Stats. & Regs. ‘‘data type and explanation’’ columns. 7 In general, when the pipeline has sold capacity Preambles ¶ 30,994 (May 2, 1994), reh’g denied, 5 El Paso Natural Gas Company, 62 FERC at a discount, the pipeline is entitled to collect the Order No. 563–B, 68 FERC ¶ 61,002 (1994). ¶ 61,311, at 62,991 (1993). maximum rate when shippers change to alternate 2 Order No. 563–A, III FERC Stats. & Regs. 6 ANR Pipeline Company, 66 FERC ¶ 61,340, at points (unless the pipeline has agreed by contract Preambles at 31,036–37. 62,130–32 (1994). that the discounted rate applies to all points). 39254 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations DEPARTMENT OF LABOR On October 7, 1994, five steel erection To date, SENRAC has not decided companies petitioned OSHA for an which steel structures will be subject to Occupational Safety and Health administrative stay of final subpart M to subpart R’s fall protection requirements. Administration the extent the standard applies to steel Accordingly, OSHA has granted erection activities. They argued that SENRAC additional time to develop a 29 CFR Part 1926 OSHA had not given fair notice that proposal to revise subpart R. In light of [Docket No. S±206B] subpart M would apply to the steel these developments, further extending erection industry at all, and that, in the administrative stay of subpart M Safety Standards for Fall Protection in consequence, they did not have the would prolong indefinitely the time in the Construction Industry opportunity to comment on this issue. which the text of the standard does not AGENCY: Occupational Safety and Health After reviewing the rulemaking record reflect the standard’s actual scope. Administration (OSHA), Labor. in light of petitioner’s fair notice claims, OSHA has decided therefore that OSHA agreed that the petitioners and subpart M should be amended at this ACTION: Final rule; correcting time to accurately reflect that it does not amendment. other interested persons did not receive adequate notice of OSHA’s intention cover steel erection and that subpart E SUMMARY: Negotiated rulemaking is that some steel erection activities would should be amended so that the generic currently underway to develop a be covered by revised subpart M. fall protection provisions that have proposed revision of OSHA’s standards Because of the notice deficiency, OSHA applied to steel erection continue in for steel erection in subpart R of part recognized that the rulemaking record effect. 1926. That proposal is expected to was incomplete with respect to steel OSHA intends, after the SENRAC include fall protection requirements for erection and that revised subpart M was proposal is issued and the scope of the employees performing steel erection not a final rule to the extent it applied subpart R revision rulemaking is work. OSHA has concluded that the to steel erection. definite, to formally propose to amend Agency’s recently revised general Accordingly, OSHA granted the subpart M to include any steel erection requirements for fall protection (subpart request for an administrative stay and activity omitted from the subpart R M of part 1926) should be amended at delayed the effective date of revisions to revision process. this time to clarify that they do not subpart M and subpart E, to the extent Until subparts M and R are finally apply to any steel erection activities. they applied to steel erection, until revised, the Agency’s enforcement Therefore, OSHA is withdrawing August 6, 1995 (60 FR 5131, January 26, policy on fall protection during steel amendments to subpart E which have 1995). OSHA explained in the January erection is the policy outlined in Deputy not yet become effective and is 1995 notice that it intended to reopen Assistant Secretary Stanley’s July 10, amending certain provisions of subpart the subpart M record for supplemental 1995 memorandum to the Office of M of part 1926 in order to maintain the comments concerning subpart M Field Programs, ‘‘Fall Protection in Steel fall protection requirements for steel coverage of certain steel erection work. Erection.’’ The memorandum provides erection that were in effect before the See 60 FR 5131. that the term ‘‘steel erection activities’’ issuance of revised subpart M. For construction activity other than means the movement and erection of EFFECTIVE DATE: This document is steel erection, revised subpart M and skeleton steel members (structural steel) effective on August 2, 1995. supporting amendments to subparts E, in or on buildings or non-building FOR FURTHER INFORMATION CONTACT: Mr. H, N, P, Q, and V became effective on structures. It includes the initial Richard Liblong, Director of Information February 6, 1995. connecting of steel, employees moving and Consumer Affairs, Occupational At the time OSHA granted the point-to-point, installing metal floor or Safety and Health Administration, U.S. petitioners’ request for an roof decking, welding, bolting and Department of Labor, Room N–3647, administrative stay and delayed the similar activities. 200 Constitution Avenue, NW., effective date of revised subpart M, a The memorandum further provides Washington, DC 20210. Telephone (202) negotiated rulemaking committee was in that steel erection does not include the 219–8151. the process of developing a proposal to erection of steel members such as lintels, stairs, railings, curtainwalls, SUPPLEMENTARY INFORMATION: revise 29 CFR part 1926, subpart R. Subpart R currently applies to steel windows, architectural metalwork, I. Background erection of buildings. The Steel Erection column covers, catwalks, and similar On August 9, 1994, the Occupational Negotiated Rulemaking Advisory non-skeletal items or the placement of Safety and Health Administration Committee, SENRAC, was expected to reinforcing rods in concrete structures. (OSHA) issued a final rule on Fall issue a proposal in June 1995 which Accordingly, OSHA is amending Protection in the Construction Industry, would, among other things, expand subpart M and subpart E in order to 29 CFR part 1926, subpart M (59 FR subpart R’s scope. In order to avoid maintain, until such time as further 40672), which became effective, except overlap or conflict between two rulemaking procedures may be initiated as described below, on February 6, rulemakings concerning steel erection and completed, the fall protection 1995. With respect to steel erection fall hazards, OSHA decided to wait to requirements for steel erection that were activities, the new subpart M reopen subpart M for additional in effect before the issuance of revised established the duty to provide fall comment concerning coverage of steel subpart M. protection for employees engaged in erection until after SENRAC’s June II. Summary and Explanation steel erection in structures other than proposal made clear which steel buildings (revised §§ 1926.500(a)(2)(iii)), erection activities would remain A. Personal Protective Equipment— and 1926.501(b)) and established the fall unregulated by subpart R. Accordingly, Subpart E protection systems criteria and training OSHA delayed the effective date of OSHA is amending subpart E to requirements for employees engaged in revisions to subpart E and subpart M withdraw the actions whereby the all steel erection work (revised purporting to apply to steel erection for Agency removed §§ 1926.104, Safety §§ 1926.500(a)(2)(iii), (a)(3), (a)(4), six months, or until August 6, 1995 (60 belts, lifelines and lanyards; 1926.105, 1926.502, and 1926.503). FR 5131, January 26, 1995). safety nets; and 1926.107 (b), (c) and (f) Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39255 (definitions for the terms ‘‘lanyard’’, Signed at Washington, D.C. this 28th day DEPARTMENT OF THE TREASURY ‘‘lifeline’’ and ‘‘safety belt’’, of July 1995. respectively), insofar as those provisions Joseph A. Dear, Office of Foreign Assets Control relate to steel erection. Through this Assistant Secretary of Labor. 31 CFR Part 515 amendment, OSHA will maintain the PART 1926Ð[AMENDED] existing fall protection requirements for Cuban Assets Control Regulations; steel erection activities pending Information and Informational Subpart EÐ[Amended] rulemaking that addresses the steel Materials erection industry. 1. The authority citation for subpart E AGENCY: Office of Foreign Assets of part 1926 continues to read as B. Scope and Application—Subpart M Control, Treasury. follows: ACTION: Final rule; amendments. OSHA is amending § 1926.500(a), Authority: Sec. 107, Contract Work Hours Scope and application, of subpart M to and Safety Standards Act (Construction SUMMARY: The Treasury Department is indicate clearly that the provisions of Safety Act) (40 U.S.C. 333); Secs. 4, 6, 8, amending the Cuban Assets Control revised §§ 1926.501, Duty to have fall Occupational Safety and Health Act of 1970 Regulations (the ‘‘Regulations’’) to bring (29 U.S.C. 653, 655, 657); Secretary of Labor’s protection; 1926.502, Fall protection the Regulations into conformity with Order No. 12–71 (36 FR 8754), 8–76 (41 FR amendments to the Trading with the systems criteria and practices; and 25059), 9–83 (48 FR 35736), or 1–90 (55 FR 1926.503, Training requirements, do not 9033), as applicable. Enemy Act concerning information and apply to steel erection activities. The informational materials included in the 2. Amendatory items 4, 5, 6, and 7 to revised provision clearly indicates that Foreign Relations Authorization Act, subpart E, published in the Federal subpart R and specified provisions of Fiscal Years 1994 and 1995. Register issue of August 9, 1994 (59 FR EFFECTIVE DATE: August 2, 1995. subpart E cover steel erection. 40729) and stayed in the issue of FOR FURTHER INFORMATION CONTACT: January 26, 1995 (60 FR 5131), are Exemption From Delayed Effective Date Steven I. Pinter, Chief of Licensing, tel.: withdrawn. Requirement 202/622–2480, or William B. Hoffman, Under 5 U.S.C. 553, OSHA finds that Subpart MÐFall Protection Chief Counsel, tel.: 202/622–2410, Office of Foreign Assets Control, there is good cause for making this 3. The authority citation for subpart M Department of the Treasury, amendment effective upon publication of part 1926 continues to read as Washington, DC 20220. in the Federal Register. This follows: amendment simply maintains the fall SUPPLEMENTARY INFORMATION: protection requirements which have Authority: Sec. 107, Contract Work Hours and Safety Standards Act (Construction Electronic Availability applied to the steel erection industry, Safety Act) (40 U.S.C. 333); Secs. 4, 6, 8, This document is available as an notwithstanding the promulgation of Occupational Safety and Health Act of 1970 subpart M, Fall protection, so it does not (29 U.S.C. 653, 655, 657); Secretary of Labor’s electronic file on The Federal Bulletin increase the existing regulatory burden. Order No. 1–90 (55 FR 9033); and 29 CFR Board the day of publication in the Part 1911. Federal Register. By modem dial 202/ Authority 512–1387 and type ‘‘/GO/FAC’’ or call 4. Paragraphs (a)(2)(iii), (a)(3)(iv) and 202/512–1530 for disks or paper copies. (a)(4) of § 1926.500 are revised to read This document was prepared under This file is available for downloading in as follows: the direction of Joseph A. Dear, WordPerfect 5.1, ASCII, and Postscript Assistant Secretary of Labor for § 1926.500 Scope, application, and formats. The document is also Occupational Safety and Health, U.S. definitions applicable to this subpart. accessible for downloading in ASCII Department of Labor, 200 Constitution (a) * * * format without charge from Treasury’s Avenue, N.W., Washington, D.C. 20210. (2) * * * Electronic Library (‘‘TEL’’) in the List of Subjects in 29 CFR Part 1926 (iii) Requirements relating to fall ‘‘Business, Trade and Labor Mall’’ of the protection for employees performing FedWorld bulletin board. By modem Construction industry, Construction steel erection work are provided in dial 703/321–3339, and select self– safety, Excavations, Fall protection, § 1926.105 and in subpart R of this part. expanding file ‘‘T11FR00.EXE’’ in TEL. Hoisting safety, Occupational safety and * * * * * For Internet access, use one of the Health, Protective equipment, Safety, (3) * * * following protocols: Telnet = Tools. (iv) Section 1926.502 does not apply fedworld.gov (192.239.93.3); World to steel erection activities. (Note: Wide Web (Home Page) = http:// Accordingly, pursuant to sections 4, www.fedworld.gov; FTP = 6(b) and 8(g) of the Occupational Safety Section 1926.104 sets the criteria for body belts, lanyards and lifelines used ftp.fedworld.gov (192.239.92.205). and Health Act of 1970 (29 U.S.C. 653, for fall protection in steel erection Background 655, 657); section 107 of the Contract activities. Paragraphs (b), (c) and (f) of Section 525 (b) of the Foreign Work Hours and Safety Standards Act § 1926.107 provide definitions for the (40 U.S.C. 333); section 4 of the Relations Authorization Act, Fiscal pertinent terms). Years 1994 and 1995, Pub. L. 103–236, Administrative Procedure Act (5 U.S.C. (4) Section 1926.503 sets forth 553); Secretary of Labor’s Order No. 1– 108 Stat. 474, amended section 5(b)(4) requirements for training in the of the Trading with the Enemy Act, 50 90 (55 FR 35736); and 29 CFR part 1911, installation and use of fall protection the amendment to 29 CFR part 1926 U.S.C. App. 1–44 (‘‘TWEA’’), to expand systems, except in relation to steel the list of items considered to be made in the Federal Register on August erection activities. 9, 1994 (59 FR 40672) is further information or informational materials * * * * * to include compact discs, CD ROMs, amended as set forth below. [FR Doc. 95–18921 Filed 8–1–95; 8:45 am] artworks, and news wire feeds. In BILLING CODE 4510±26±P addition, section 5(b)(4) of TWEA, as 39256 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations amended, exempts from the authority Flexibility Act, 5 U.S.C. 601–612, does § 515.332 Information and informational granted to the President the authority to not apply. materials. regulate or prohibit, directly or List of Subjects in 31 CFR Part 515 (a) For purposes of this part, the term indirectly, the importation from any information and informational country or the exportation to any Administrative practice and materials means: country, whether commercial or procedure, Air carriers, Banks, banking, (1) Publications, films, posters, otherwise, of information or Cuba, Currency, Estates, Exports, Fines phonograph records, photographs, informational materials, regardless of and penalties, Foreign investment in the microfilms, microfiche, tapes, compact format or medium of transmission. United States, Foreign trade, Imports, disks, CD ROMs, artworks, news wire Section 515.206 of the Regulations is Informational materials, Publications, feeds, and other information and amended to reflect the exemption that Reporting and recordkeeping informational articles. applies to transactions concerning requirements, Securities, Shipping, (2) To be considered informational information and informational Travel restrictions, Trusts and trustees, materials, artworks must be classified materials. The definition of the term Vessels. under Chapter subheadings 9701, 9702, ‘‘information or informational For the reasons set forth in the or 9703 of the Harmonized Tariff materials’’ contained in § 515.332 is preamble, 31 CFR part 515 is amended Schedule of the United States. amended to conform the section to as set forth below: amended section 5(b)(4) of TWEA. (b) The term information and Conforming amendments are also made informational materials does not to § 515.545, which authorizes PART 515ÐCUBAN ASSETS include items: transactions related to the importation CONTROL REGULATIONS (1) That would be controlled for and exportation of information and export pursuant to section 5 of the informational materials. Section 1. The authority citation for part 515 Export Administration Act of 1979, 50 515.570, which authorizes the continues to read as follows: U.S.C. App. 2401–2420 (1993) (the importation of paintings and drawings, Authority: 50 U.S.C. App. 1–44; 22 U.S.C. ‘‘EAA’’), or section 6 of the EAA to the is removed from the Regulations 6001–6010; 22 U.S.C. 2370(a); Proc. 3447, 27 extent that such controls promote because the exemption contained in FR 1085, 3 CFR, 1959–1963 Comp., p. 157; nonproliferation of antiterrorism § 515.206, as amended, makes this E.O. 9193, 7 FR 5205, 3 CFR, 1938–1943 policies of the United States, including separate authorization unnecessary. Comp., p. 1147; E.O. 9989, 13 FR 4891, 3 ‘‘software’’ that is not ‘‘publicly Section 515.542, which concerns CFR, 1943–1948 Comp., p. 748; E.O. 12854, available’’ as these terms are defined in 58 FR 36587, 3 CFR, 1993 Comp., p. 614. authorization for telecommunications is 15 CFR Parts 779 and 799.1 (1994); or revised to generally license certain (2) With respect to which acts are forms of telecommunications services Subpart BÐProhibitions prohibited by 18 U.S.C. chapter 37. between Cuba and the United States. 2. Section 515.206 is amended by Subpart EÐLicenses, Authorizations, The provision of, and payments for, revising the references to § 515.550 to and Statements of Licensing Policy telecommunications services between read § 515.545 in Examples 2, 3, and 4; Cuba and the United States are governed by removing paragraph (b) and 4. The section heading and exclusively by section 1705 of the redesignating paragraphs (c),(d), and (e) Cuban Democracy Act, 22 U.S.C. 6001– paragraphs (b) and (c) of § 515.542 are as paragraphs (b),(c), and (d) revised to read as follows: 6010 (‘‘CDA’’). That section authorizes respectively; by adding the words, such services, but permits the regulation ‘‘information or’’ before the words, § 515.542 Telecommunications, of payments to Cuba for ‘‘informational materials,’’ each time information, and informational materials. telecommunications. The CDA they are used in redesignated paragraph * * * * * provision on telecommunications (b) and Example 3; by removing the preempts the provisions of TWEA on (b) Except as provided in paragraph word ‘‘synchronization’’ and the comma information and informational materials (c) of this section, all transactions following it from Example 4; and by to the extent that the provisions are incident to the use of cables, satellite revising the section heading and inconsistent. The general license channels, radio signals, or other means paragraph (a) to read as follows: contained in § 515.542(b) authorizes the of telecommunications for the provision of telecommunications services between provision of telecommunications § 515.206 Exemption of information and services between Cuba and the United informational materials. Cuba and the United States, including telephone, telegraph and similar States. Consistent with the authority (a) The importation from any country provided in the CDA, § 515.542(c) services, and the transmission of radio and the exportation to any country of and television broadcasts and news wire requires the obtaining of specific information or informational materials licenses on a case–by–case basis as a feeds between Cuba and the United as defined in § 515.332, whether States, are authorized. condition for any full or partial commercial or otherwise, regardless of (c) Full or partial payments owed to payments to Cuba arising out of format or medium of transmission, are Cuba as a result of telecommunications telecommunications services between exempt from the prohibitions and services authorized in paragraph (b) of the United States and Cuba. regulations of this part except for this section are prohibited unless Because the Regulations involve a payments owed to Cuba for authorized pursuant to specific licenses, foreign affairs function, Executive Order telecommunications services between which will be issued on a case–by–case 12866 and the provisions of the Cuba and the United States, which are basis provided such payments are Administrative Procedure Act, 5 U.S.C. subject to the provisions of § 515.542. 553, requiring notice of proposed determined to be consistent with the rulemaking, opportunity for public * * * * * public interest and the foreign policy of the United States. participation, and delay in effective Subpart CÐGeneral Definitions date, are inapplicable. Because no 5. The section heading and paragraph notice of proposed rulemaking is 3. Section 515.332 is revised to read (a) of § 515.545 are revised to read as required for this rule, the Regulatory as follows: follows: Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39257 § 515.545 Transactions related to 3131 Highway 53, International Falls, closed to aircraft use. There will be information and informational materials. MN 56649–8904, Telephone: (218) 283– increased enjoyment among users by (a) Except as provided in § 515.542(c), 9821. delineating areas appropriate to all financial and other transactions specialized uses. By identifying areas SUPPLEMENTARY INFORMATION: directly incident to the importation or open to aircraft use, the park will be exportation of information or Background able to limit aircraft use to less sensitive informational materials are authorized. The enabling legislation for Voyageurs areas and improve protection of * * * * * National Park states ‘‘The Secretary resources. The park will also be able to may, when planning for development of improve information to pilots on what § 515.570 [Removed] the park, include appropriate provisions areas are open and what areas are closed 6. Section 515.570 is removed. for * * * use by seaplanes * * *.’’ 16 to aircraft operations as well as Dated: July 14, 1995. U.S.C. Section 160h. The 1980 Master information on sensitive areas that would be affected by aircraft use. This R. Richard Newcomb, Plan for the park states that float planes and ski planes will be allowed upon all regulation will allow the park to Director, Office of Foreign Assets Control. identify those areas where appropriate Approved: July 18, 1995. lakes deemed safe by the Minnesota Department of Transportation. It also use may occur, improve public John P. Simpson, states that this allowance would be information and protect area resources. The NPS is adopting this interim rule Deputy Assistant Secretary (Regulatory, Tariff subject to the findings of the wilderness & Trade Enforcement). to allow an activity that has been study. The 1992 wilderness study identified as compatible with the [FR Doc. 95–18952 Filed 7–28–95; 12:34 pm] recommended that planes be allowed on establishment of the park and an BILLING CODE 4810±25±F the four major lakes (Rainy, activity that was specifically identified Kabetogama, Namakan and Sand Point), in the park’s enabling legislation as an as well as the following interior lakes: DEPARTMENT OF THE INTERIOR acceptable activity in the park. Because Locator, War Club, Quill, Loiten, of the time requirements associated with Shoepack, Little Trout and Mukooda. National Park Service the normal rulemaking process, and the The park has received several requests fact that the NPS has been unable to 36 CFR Part 7 for permission to land float planes on proceed in a timely manner with a park lakes this summer. RIN 1024±AC23 proposed rule this summer, the agency Public aircraft use on park waters has determined that an interim rule occurred prior to the designation of the would allow for aircraft use in a more Voyageurs National Park; Aircraft park in 1971. This use is primarily OperationsÐDesignation of Areas expeditious manner. The interim rule related to fishing, camping, will allow aircraft use to occur while the AGENCY: National Park Service, Interior. transportation to resorts and summer agency proceeds with the required dwellings and is typical for the area. ACTION: Interim rule. rulemaking to adopt a permanent Float plane use is mainly associated special regulation for Voyageurs SUMMARY: The National Park Service with the four major lakes with use of the National Park. (NPS) is adopting this interim rule for interior lakes constituting less than 1% The NPS is adopting this interim rule Voyageurs National Park to allow an of the park’s use. Aircraft are currently pursuant to the ‘‘good cause’’ exception activity that has been identified in the prohibited from using about 22 small of the Administrative Procedure Act (5 1980 Master Plan and the 1992 interior lakes that have been determined U.S.C. 553(b)(B)) from general notice Wilderness Plan. The interim rule will to be too small to use safely by the and comment rulemaking. As discussed designate certain areas open to aircraft Minnesota Department of above, the NPS believes that this use within the park for a limited Transportation. Three other lakes that exception is warranted in order to duration of time while the agency have been used periodically and are authorize float plane use this summer, develops a special regulation to address accessible by hiking trails will not be insofar as such use is identified in the the activity through public notice and opened to float plane use by this park’s enabling legislation, management comment rulemaking. This addition is regulation. The closing of these three plan, wilderness plan, environmental necessary because NPS general interior lakes will allow the park to assessment and environmental impact regulations require special regulatory manage the interior lakes on an statement. Moreover, the development designations for areas in parks open to equitable basis since other motorized of these documents solicited and the operation or use by aircraft. The uses are prohibited. Section 2.17 of 36 provided ample opportunity for public intended effects are to ensure safety, CFR prohibits the operation or use of comment, and the public comment protect resources and provide aircraft on lands and waters within park revealed support for appropriate aircraft appropriate enjoyment to park users. areas except at locations designated use. through the special rulemaking process. Because public comment is a DATES: This rule is effective on August This interim rule will allow the park principal reason for the general 2, 1995 and will expire upon the to grant appropriate requests for aircraft regulation requirement of special publication of a final rule developed operation this summer. It will also regulations to allow the designation of through the normal public notice and increase public safety by identifying locations for this activity, the NPS finds comment rulemaking process. Written where and under what conditions that notice and comment are comments will be accepted through aircraft are allowed to operate and unnecessary and contrary to the public October 2, 1995. improving information to the public on interest for this interim rule. ADDRESSES: Comments should be where they may expect to see aircraft Furthermore, the NPS is developing and addressed to: Superintendent, within the park. This will lessen will be publishing soon in the Federal Voyageurs National Park, 3131 Highway potential conflicts among user groups Register a proposed rule requesting 53, International Falls, MN 56649–8904. and encourage those that do not want to public comment on a special regulation FOR FURTHER INFORMATION CONTACT: associate with aircraft operations to to allow the use of aircraft in Voyageurs Chief Ranger, Voyageurs National Park, select areas within the park that are National Park. This interim rule is 39258 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations limited in duration and will terminate both oral and written, was received (4) Areas within the designated lakes with the publication of a final rule in regarding the matter of snowmobile use may be closed to aircraft use by the the Federal Register. and wilderness designation. There were Superintendent taking into The NPS has also determined, in very few comments received concerning consideration public safety, wildlife accordance with the Administrative aircraft use. management, weather and park Procedure Act (5 U.S.C. 553(d)(3)), that This rule was not subject to Office of management objectives. the publishing of this interim rule 30 Management and Budget review under Dated: July 21, 1995. days prior to the rule becoming effective Executive Order 12866. The Department would be counterproductive and George T. Frampton, Jr., of the Interior determined that this Assistant Secretary for Fish and Wildlife and unnecessary for the reasons discussed document will not have a significant above. A 30-day delay would be Parks. economic effect on a substantial number [FR Doc. 95–18885 Filed 8–1–95; 8:45 am] contrary to the public interest. of small entities under the Regulatory Therefore, under the ‘‘good cause’’ Flexibility Act (5 U.S.C. 601 et seq.). BILLING CODE 4310±70±P exception of the Administrative The economic effects of this rulemaking Procedure Act (5 U.S.C. 553(d)(3)), it are local in nature and negligible in ENVIRONMENTAL PROTECTION has been determined that this interim scope. AGENCY rulemaking is excepted from the 30-day Based on this determination, and in delay in the effective date and shall accord with the procedural 40 CFR Parts 52 and 81 therefore become effective on the date requirements of the National published in the Federal Register. Environmental Policy Act (NEPA), and [NC±72±1±6953a; FRL±5258±4] Drafting Information. The primary authors by Departmental guidelines in 516 DM Approval and Promulgation of of this interim rule are Bruce D. McKeeman, 6 (49 FR 21438), an Environmental Implementation Plans and Designation Chief Ranger, Voyageurs National Park and Assessment (EA), which included of Areas for Air Quality Planning Dennis Burnett, Washington Office of Ranger consultation with the U.S. Fish and Activities. Purposes; State of North Carolina Wildlife Service, and a Finding of No Paperwork Reduction Act Significant Impact (FONSI) have been AGENCY: Environmental Protection prepared. Agency (EPA). This rulemaking does not contain ACTION: information collection requirements that List of Subjects in 36 CFR Part 7 Direct final rule. require approval by the Office of National parks, Reporting and SUMMARY: On August 9, 1991, the North Management and Budget under 44 recordkeeping requirements. Carolina Department of Environmental U.S.C. 3501 et seq. In consideration of the foregoing, 36 Management (NCDEM), submitted a Compliance With Other Laws CFR Chap. I is amended as follows: maintenance plan and a request to redesignate the Charlotte area from Pursuant to the Act of January 3, nonattainment to attainment for carbon 1968, 84 Stat. 1972, 16 U.S.C. Section PART 7ÐSPECIAL REGULATIONS, monoxide (CO). The Charlotte CO 160f(b), the NPS prepared a Wilderness AREAS OF THE NATIONAL PARK nonattainment area consists only of Recommendation and, pursuant to the SYSTEM Mecklenburg County. Subsequently, National Environmental Policy Act, 42 1. The authority citation continues to NCDEM submitted supplemental U.S.C. §§ 4332 et seq., prepared an read as follows: material to the Charlotte submittal on Environmental Impact Statement (EIS) October 7, 1994. Included with this assessing the effects of the Wilderness Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code package was a request to redesignate the Recommendation. On page 30 of the 8–137 (1981) and DC Code 40–721 (1981). Raleigh/Durham area from EIS, the section titled ‘‘Provisions Common To All Alternatives’’ states: 2. In § 7.33, a new paragraph (c) is nonattainment to attainment for CO. ‘‘Under all alternatives motorized added to read as follows: The Raleigh/Durham CO nonattainment vehicles and aircraft would be allowed area consists of Durham and Wake § 7.33 Voyageurs National Park. on Rainy, Kabetogama, Namakan and Counties. Under the Clean Air Act as Sand Point lakes, subject to established * * * * * amended in 1990 (CAA), designations regulations. Special regulations for (c) Aircraft. (1) Aircraft may be can be revised if sufficient data is aircraft access in the park will be operated on the entire water surface and available to warrant such revisions. In required, * * *’’. On page 35, the frozen lake surface of the following this action, EPA is approving the North section titled ‘‘Alternatives’’ also states lakes, except as restricted in paragrah Carolina request because it meets the that the alternatives address the (c)(4) of this section and § 2.17 of this maintenance plan and redesignation appropriateness of motorized use in the chapter: Rainy, Kabetogama, Namakan, requirements set forth in the CAA. park, specifically the location of Sand Point, Locator, War Club, Quill, DATES: This action will be effective snowmobile routes and portages, as well Loiten, Shoepack, Little Trout and September 18, 1995, unless critical or as the lakes open to aircraft and Mukooda. adverse comments are received by motorboat use.’’ Each of the six (2) Approaches, landings and take-offs September 1, 1995. If the effective date alternatives specifically lists the lakes shall not be made within 500 feet of any is delayed, timely notice will be that will be open to motorized and developed facility, boat dock, float, pier, published in the Federal Register. aircraft use. The NPS consulted with the ramp or beach. ADDRESSES: Written comments should U.S. Fish and Wildlife Service pursuant (3) Aircraft may taxi to and from a be sent to Ben Franco, at the EPA to Section 7 of the Endangered Species dock or ramp designated for their use Regional office listed below. Copies of Act, 16 U.S.C. Section 1536 and they for the purpose of mooring and must be the redesignation request and the State issued a ‘‘No Jeopardy Opinion’’ as part operated with due care and regard for of North Carolina’s submittal are of their biological opinion. Public input persons and property and in accordance available for public review during was provided during a series of public with any posted signs or waterway normal business hours at the addresses hearings. Extensive public comment, markers. listed below. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39259 Air and Radiation Docket and Information NCEMC on September 8, 1994. North 2. Meeting Applicable Requirements of Center (Air Docket 6102), U.S. Environmental Carolina submitted evidence that a Section 110 and Part D Protection Agency, 401 M Street, SW., public hearing was held on March 28 Washington, DC 20460. The 1990 CAA Amendments, Environmental Protection Agency, Region and March 30, 1994. modified section 110(a)(2) and, under 4, Air Programs Branch, 345 Courtland Street The 1990 CAA Amendments revised Part D, revised section 172 and added NE., Atlanta, Georgia 30365. section 107(d)(3)(E) to provide five new requirements for all nonattainment Department of Environment, Health and specific requirements that an area must areas. Therefore, for purposes of Natural Resources, P.O. Box 29535, Raleigh, meet in order to be redesignated from redesignation, to meet the requirement North Carolina 27626–0535. nonattainment to attainment. that the SIP contain all applicable FOR FURTHER INFORMATION CONTACT: Ben 1. The area must have attained the requirements under the CAA, EPA has Franco of the EPA Region 4 Air applicable NAAQS; reviewed the SIP to ensure that it Programs Branch at (404) 347–3555, ext. 2. The area must meet all applicable contains all measures that were due 4211, and at the above address. requirements under section 110 and Part under the 1990 Amendments prior to or SUPPLEMENTARY INFORMATION: In a March D of the CAA; at the time the State submitted its 15, 1991, letter to the EPA Region 4 3. The area must have a fully redesignation request. Administrator, the Governor of North approved state implementation plan Carolina recommended the areas of under section 110(k) of CAA; A. Section 110 Requirements Raleigh/Durham and Charlotte be 4. The air quality improvement must Section 110 was amended by the 1990 designated as nonattainment for CO, as be permanent and enforceable; and, Amendments. The North Carolina SIP required by section 107(d)(1)(A) of the 5. The area must have a fully meets the requirements of amended 1990 CAA (Pub. L. 101–549, 104 Stat. approved maintenance plan pursuant to section 110(a)(2). The State 2399, codified at 42 U.S.C. 7401– section 175A of the CAA. implemented an Oxygenated Fuel 767lql). The cities were designated On November 12, 1991, and December program in the area of Raleigh/Durham nonattainment and classified as 8, 1994, Region 4 determined the during the 1992 and 1993 winter ‘‘moderate,’’ except for Charlotte which Charlotte and Raleigh/Durham seasons. The Charlotte area was not was classified as ‘‘not classified,’’ under submittal, respectively, constituted a required to implement an Oxygenated the provisions outlined in sections 186 complete redesignation request under Fuels program. EPA has reviewed the and 187 of the CAA (See 56 FR 56694 the general completeness criteria of 40 SIP and determined that it is consistent (Nov. 6, 1991) and 57 FR 56762 (Nov. CFR 51, appendix V, sections 2.1 and with the requirements of amended 30, 1992), codified at 40 CFR part 81, 2.2. section 110(a)(2). § 81.334). The National Ambient Air The North Carolina redesignation B. Part D Requirements Quality Standard (NAAQS) for CO is 9.5 request for the Raleigh/Durham and ppm. CO nonattainment areas can be Charlotte areas meet the five Before Raleigh/Durham and Charlotte classified as moderate or serious, based requirements of section 107(d)(3)(E), may be redesignated to attainment, the on their design values. Since Raleigh/ noted above. The following is a brief applicable requirements of Part D must Durham had a design value of 10.9 ppm description of how the State has be fulfilled. Subpart I of Part D sets forth (based on 1988 and 1989 data), the area fulfilled each of these requirements. the basic nonattainment requirements was classified as moderate. The Because the maintenance plan is a applicable to all nonattainment areas, Charlotte area was a pre-1990 critical element of the redesignation classified as well as nonclassifiable. nonattainment area and was designated request, EPA will discuss its evaluation Subpart 3 of Part D establishes by operation of law. However, the of the maintenance plan under its additional requirements for Charlotte area was classified as ‘‘not analysis of the redesignation request. nonattainment areas classified under classified’’ because it had a design value section 186(a). The Raleigh/Durham 1. Attainment of the CO NAAQS of 8.4 ppm (based on 1988 and 1989 area was classified as moderate (See 40 data), which is below the 9.5 ppm. The The North Carolina requests are based CFR 81.334). Therefore, in order to be CAA established an attainment date of on an analysis of quality assured CO air redesignated to attainment, the State December 31, 1995, for all moderate CO monitoring data which is relevant to the must meet the applicable requirements areas. ‘‘Not Classified’’ areas, such as maintenance plan and to the of Subpart 1 of Part D, specifically Charlotte, must attain by November 15, redesignation requests. The ambient air sections 172(c) and 176, and the 1995. CO monitoring data for calendar year requirements of Subpart 3 of Part D, The Raleigh/Durham and Charlotte 1991 through calendar year 1993 shows which became due on or before August areas have ambient air quality no violations of the CO NAAQS in the 9, 1991, and October 7, 1994, the dates monitoring data showing attainment of Raleigh/Durham and Charlotte areas. the State submitted complete the CO NAAQS from 1990 through The most recent ambient CO data for the redesignation requests for Charlotte and 1993. The areas continued to monitor calendar year 1994 continue to show no Raleigh/Durham, respectively. EPA attainment in 1994 and 1995. Therefore, violations in the Raleigh/Durham and interprets, according to section in an effort to comply with the CAA and Charlotte areas. Because the Raleigh/ 107(d)(3)(E)(v) to mean that, for a to ensure continued attainment of the Durham and Charlotte areas have redesignation request to be approved, NAAQS, on August 9, 1991, and complete quality assured data showing the State must have met all October 7, 1994, the State of North no more than one exceedance of the requirements that become applicable to Carolina submitted CO redesignation standard per year over at least two the subject area prior to or at time of the requests and maintenance plans for the consecutive years, the area has met the submission of the redesignation request. Charlotte and Raleigh/Durham areas, first statutory criterion of attainment of Requirements of the CAA due respectively. The October 7, 1994, the CO NAAQS (40 CFR 50.9 and subsequent to the submission of the submittal included a revision of the Appendix C1). North Carolina has redesignation request will continue to 1991 Charlotte redesignation request. committed to continue monitoring in be applicable to the area (See section The request for redesignation submittal this area in accordance with 40 CFR Part 175A(c)) until the redesignation request and maintenance plan was approved by 58. is approved. If the redesignation is 39260 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations disapproved, the State remains conformity criteria and procedures due to the implementation of an obligated to fulfill those requirements. consistent with those established in the Oxygenated Fuels program during the Federal rule by November 25, 1994. winter seasons of 1992 and 1993. B1. Subpart 1 of Part D Similarly, North Carolina is required to In association with its emission Section 172(c) of Subpart 1 sets forth submit a SIP revision containing general inventory discussed below, the State of general requirements applicable to all conformity criteria and procedures North Carolina has demonstrated that nonattainment areas. Under section consistent with those established in the actual enforceable emission reductions 172(b), the section 172(c) requirements Federal rule by December 1, 1994. On are responsible for the air quality are applicable as determined by the March 3, 1995, NCDEM submitted improvement and that the CO emissions Administrator but no later than three general and transportation conformity in the base year are not artificially low years after an area is designated as regulations. due to local economic downturn. EPA nonattainment. Because the Raleigh/ B3. Subpart 3 of Part D finds that the combination of existing Durham area was designated as a new EPA approved SIP and federal measures CO nonattainment area on June 6, 1992, Under section 187(a) areas designated contribute to the permanence and the section 172(c) requirements are due nonattainment for CO under the enforceability of reduction in ambient by June 6, 1995. Therefore, the amended CAA and classified as CO levels that have allowed the area to submission by North Carolina of New moderate were required to meet several attain the NAAQS. Source Review and contingency requirements by November 15, 1992. measures required under 172(c) are not Consequently, these requirements are 5. Fully Approved Maintenance Plan yet due. To the extent the moderate CO pertinent only for the Raleigh/Durham Under Section 175A nonattainment area requirements of area. These requirements included a Section 175A of the CAA sets forth section 187(a) supersede the section 1990 Emission Inventory, an Inspection the elements of a maintenance plan for 172(c) requirements, as is the case with and Maintenance Program (I/M), and an areas seeking redesignation from emission inventories, North Carolina Oxygenated Fuel Program. EPA has nonattainment to attainment. The plan has complied with those requirements. reviewed and is approving in this must demonstrate continued attainment B2. Subpart 1 of Part D notice, North Carolina’s 1990 Base Year of the applicable NAAQS for at least ten Emission Inventory. Section 211(m) years after the Administrator approves a Section 176(c) of the CAA requires further required North Carolina to States to revise their SIPs to establish redesignation to attainment. Eight years submit an oxygenated fuels regulation after the redesignation, the state must criteria and procedures to ensure that for the Raleigh/Durham area. NCDEM Federal actions, before they are taken, submit a revised maintenance plan submitted a complete Oxygenated Fuel which demonstrates attainment for the conform to the air quality planning SIP on November 20, 1992, which was goals in the applicable SIP. The ten years following the initial ten-year approved by EPA on June 30, 1994. On period. To provide for the possibility of requirement to determine conformity August 5, 1994, NCDEM submitted a applies to general and transportation future NAAQS violations, the complete I/M SIP, which was approved maintenance plan must contain plans, programs and projects developed, by EPA on June 2, 1995. Therefore, all funded or approved under Title 23 contingency measures, with a schedule Subpart 3 requirements that were for implementation adequate to assure U.S.C. or the Federal Transit Act applicable at the time the State (‘‘transportation conformity’’). Section prompt correction of any air quality submitted its redesignation request have problems. In this notice, EPA is 176 further provides that the conformity been met. revisions to be submitted by States be approving the State of North Carolina’s consistent with Federal conformity 3. Fully Approved SIP Under Section maintenance plan for the Raleigh/ regulations that the CAA required EPA 110(k) of the CAA Durham and Charlotte areas because to promulgate. Congress provided for Based on the approval of provisions EPA finds that North Carolina’s the State revisions to be submitted one under the preamended CAA and EPA’s submittals meet the requirements of year after the date for promulgation of approval of SIP revisions under the section 175A. final EPA conformity regulations. When 1990 Amendments, EPA has determined A. Emissions Inventory—Base Year that date passed without such that the Raleigh/Durham and Charlotte Inventory promulgation, EPA’s General Preamble areas have a fully approved SIP under for the Implementation of Title I section 110(k), which also meets the On November 16, 1992, the State of informed States that the EPA conformity applicable requirements of section 110 North Carolina submitted a regulations would establish a submittal and Part D as discussed above. comprehensive inventory of CO date (see 57 FR 13498, 13557 (April 16, emissions of the Raleigh/Durham and 1992)). 4. Improvement in Air Quality Due to Charlotte areas. The inventory includes EPA promulgated final conformity Permanent and Enforceable Measures emissions from area, stationary, and regulations on November 24, 1993 (58 Under the pre-amended CAA, EPA mobile sources using 1990 as the base FR 62188)) and November 30, 1993 (58 approved the North Carolina SIP control year for calculations. FR 63214). These conformity rules strategy for the Charlotte nonattainment The State submittal contains the require that the States adopt both area, satisfied that the rules and the detailed inventory data and summaries transportation and general conformity emission reductions achieved as a result by county and source category. The provisions in the SIP for areas of those rules were enforceable. The comprehensive base year emissions designated nonattainment or subject to control measures due to an I/M program inventory was submitted in the National a maintenance plan approved under generates annual CO reductions of about Emission Data System format. The CAA section 175A. Pursuant to section 12 percent. The fleet turnover under the inventory was prepared in accordance 51.396 of the transportation conformity Federal Motor Vehicle Emission Control with EPA guidance. It also contains rule and section 51.851 of the general Program produced annual CO emission summary tables of the 1990 and 1991 conformity rule, the State of North reductions of 6 percent. There were base years and projections to the year Carolina is required to submit a SIP additional emission reductions of 19 to 2005 for the Charlotte and Raleigh/ revision containing transportation 21 percent in the Raleigh/Durham area Durham areas, respectively. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39261 1990 CO BASE YEAR EMISSIONS INVENTORY RALEIGH/DURHAM NONATTAINMENT AREA (TONS PER DAY) Year Area Nonroad Mobile Point Total 1990 ...... 40.57 5.03 594.671 .977 641.25 RALEIGH/DURHAM NONATTAINMENT AREA CO EMISSIONS INVENTORY SUMMARY (TONS PER DAY) Year Area Nonroad Mobile Point Total 1991 ...... 57.12 5.22 569.82 1.00 633.16 1993 1 ...... 57.60 5.58 419.68 1.01 483.87 1996 2 ...... 60.01 6.25 483.50 1.08 550.84 1999 2 ...... 63.45 7.18 507.5 1.13 579.26 2002 3 ...... 65.90 8.08 530.8 1.16 605.94 2005 4 ...... 67.87 8.98 552.80 1.20 630.85 1 Oxygenated Fuel program in place (2.7% Oxygen by weight). 2 Oxygenated Fuel program in place (2.0% Oxygen by weight). 3 Oxygenated Fuel program in place (2.2% Oxygen by weight). 4 Oxygenated Fuel program in place (2.6% Oxygen by weight). CHARLOTTE NONATTAINMENT AREA CO EMISSIONS INVENTORY SUMMARY (TONS PER DAY) Year Area Nonroad Mobile Point Total 1990 ...... 33.74 7.39 429.08 23.55 493.76 1993 ...... 35.59 7.97 390.31 9.00 442.87 1996 ...... 37.11 8.55 395.87 3.94 445.47 1999 ...... 39.23 9.16 393.59 4.11 446.09 2002 ...... 40.75 10.00 401.55 4.28 456.58 2005 ...... 41.96 10.97 419.62 4.43 476.98 B. Demonstration of Maintenance— C. Verification of Continued Attainment pattern indicates that an actual CO Projected Inventories Continued attainment of the CO NAAQS violation may be imminent. A NAAQS in the Raleigh/Durham and pattern will be deemed to indicate an Total CO emissions were projected imminent violation if (a) one from 1990 base year out to 2005 for the Charlotte areas depend, in part, on the State’s efforts toward tracking indicators exceedance of the standard per year has Charlotte area, and from 1991 out to been monitored at a single monitor for 2005 for the Raleigh/Durham area. of continued attainment during the maintenance period. The State has two successive years and those These projected inventories were committed to submit periodic exceedances are at least greater than 20 prepared in accordance with EPA inventories of CO emissions every three percent above the standard (i.e., 10.8 guidance. The difference between years. ppm or above) or (b) the monitored air Raleigh/Durham’s 1990 Base Year quality exceedance pattern otherwise D. Contingency Plan Inventory area sources and 1991 Base suggests that a CO NAAQS violation is Year were due to different The level of CO emissions in the likely. Within 45 days of the trigger, the methodologies. For 1991, additional Raleigh/Durham and Charlotte areas State will activate the pre-adopted data was included in the calculation of will largely determine their ability to regulations discussed below to become the emissions. North Carolina will stay in compliance with the NAAQS in effective at the beginning of the next CO reduce the minimum oxygen content for the future. Section 175A(d) of the CAA season. When other measures are the Oxygenated Fuel program in requires that the contingency provisions needed to ensure that a future violation Raleigh/Durham. The projections show include a requirement that the State of the CO NAAQS does not occur, the that calculated CO emissions, assuming implement all measures contained in State will complete the adoption a less stringent oxygenated fuels the SIP prior to redesignation. process within one year of the program, are not expected to exceed the Therefore, North Carolina has provided secondary trigger. In case of a primary contingency measures with a schedule level of the base year inventory during or secondary trigger, NCDEM will for implementation in the event of a this time period. Therefore, based on the implement one or a combination of the future CO air quality problem. The plan results of Mobile5A modeling, it is following contingency measures: contains triggering mechanisms to anticipated that Raleigh/Durham will implementing either a 2.7 or 3.1 percent maintain the CO standard with this determine when contingency measures are needed. The Raleigh/Durham and Oxygenated Fuel program, expanding program. It is also anticipated that the the I/M program coverage, enhanced I/ Charlotte area will maintain the CO Charlotte contingency plans, primary trigger will be a violation of the CO M, transportation control measures, or NAAQS over the projected years. In case employee commute options program. of an air quality problem, an NAAQS. A secondary trigger will be activated within 30 days of the State EPA finds that the contingency Oxygenated Fuel program will be finding either: (1) The periodic measures provided in the State implemented in Charlotte, as a emissions inventory exceeds the base submittal meet the requirements of contingency measure. inventory by 10 percent or more, or (2) section 175A(d) of the CAA. a monitored air quality exceedance 39262 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations E. Subsequent Maintenance Plan interpreted as authorizing the State to approved in this action may bind State, Revisions delete, alter, or rescind any of the CO local and tribal governments to perform In accordance with section 175A(b) of emission limitations and restrictions certain actions and also may ultimately the CAA, the State has agreed to submit contained in the approved CO SIP. lead to the private sector being required a revised maintenance SIP eight years Changes to CO SIP regulations rendering to certain duties. To the extent that the after the area is redesignated to them less stringent than those contained rules and commitments being approved attainment. Such revised SIP will in the EPA approved plan cannot be by this action will impose or lead to the made unless a revised plan for provide for maintenance for an imposition of any mandate upon the attainment and maintenance is additional ten years. State, local or tribal governments either submitted to and approved by EPA. as the owner or operator of a source or Final Action Unauthorized relaxations, deletions, as a mandate upon the private sector, EPA is approving the Raleigh/Durham and changes could result in both a EPA’s action will impose no new and Charlotte CO maintenance plans finding of non-implementation (section requirements under State law; such because they meet the requirements set 179(a) of the CAA) and in a SIP sources are already subject to these forth in section 175A of the CAA. EPA deficiency call made pursuant to requirements under State law. is also approving the 1990 emissions sections 110(a)(2)(H) and 110(k)(2) of Accordingly, no additional costs to inventory as complying with the the CAA. State, local, or tribal governments, or to Under the Regulatory Flexibility Act, requirements of section 172(c)(3) and the private sector, results from this 5 U.S.C. 600 et seq., EPA must prepare 187(a)(1). In addition, the Agency is action. EPA has also determined that a regulatory flexibility analysis approving the requests and this final action does not include a assessing the impact of any proposed or redesignating the Raleigh/Durham and mandate that may result in estimated final rule on small entities. 5 U.S.C. 603 costs of $100 million or more to State, Charlotte CO areas to attainment, and 604. Alternatively, EPA may certify because the State has demonstrated local, or tribal governments in the that the rule will not have a significant aggregate or to the private sector. compliance with the requirements of impact on a substantial number of small section 107(d)(3)(E) for redesignation. entities. Small entities include small List of Subjects The EPA is publishing this action businesses, small not-for-profit 40 CFR Part 52 without prior proposal because the enterprises, and government entities Agency views this as a noncontroversial with jurisdiction over populations of Environmental protection, Air amendment and anticipates no adverse less than 50,000. pollution control, Carbon monoxide, comments. However, in a separate SIP approvals under section 110 and Hydrocarbons, Incorporation by document in this Federal Register subchapter I, Part D of the CAA do not reference, Intergovernmental relations, publication, the EPA is proposing to create any new requirements, but Ozone. approve the SIP revision should adverse simply approve requirements that the 40 CFR Part 81 or critical comments be filed. This State is already imposing. Therefore, action will be effective September 18, because the federal SIP approval does Air pollution control, National parks, 1995, unless, by September 1, 1995, not impose any new requirements, it Wilderness areas. adverse or critical comments are does not have any economic impact on Dated: June 26, 1995. received. any small entities. Redesignation of an Patrick M. Tobin, If the EPA receives such comments, area to attainment under section Acting Regional Administrator. this action will be withdrawn before the 107(d)(3)(E) of the CAA does not impose Chapter I, title 40, Code of Federal effective date by publishing a any new requirements on small entities. Regulations, is amended as follows: subsequent document that will Redesignation is an action that affects withdraw the final action. All public the status of a geographical area and PART 52Ð[AMENDED] comments received will then be does not impose any regulatory addressed in a subsequent final rule requirements on sources. Accordingly, I 1. The authority citation for part 52 based on this action serving as a certify that the approval of the continues to read as follows: proposed rule. The EPA will not redesignation request will not have an Authority: 42.U.S.C. 7401–7671. institute a second comment period on impact on any small entities. this action. Any parties interested in Subpart IIÐNorth Carolina Unfunded Mandates commenting on this action should do so 2. Section 52.1770 is amended by at this time. If no such comments are Under Sections 202, 203, and 205 of adding paragraph (c)(82) to read as received, the public is advised that this the Unfunded Mandates Reform Act of follows: action will be effective September 18, 1995 (‘‘Unfunded Mandates Act’’), 1995. signed into law on March 22, 1995, EPA § 52.1770 Identification of plan. Nothing in this action should be must undertake various actions in * * * * * construed as permitting or allowing or association with proposed or final rules (c) * * * establishing a precedent for any future that include a Federal mandate that may (82) The redesignation and request for revision to any SIP. Each result in estimated costs of $100 million maintenance plan for Raleigh/Durham request for revision to the SIP shall be or more to the private sector, or to State, and Charlotte submitted by the North considered separately in light of specific local, or tribal governments in the Carolina Department of Environmental technical, economic, and environmental aggregate. Management on October 7, 1994 and factors and in relation to relevant Through submission of this state August 9, 1991, as part of the North statutory and regulatory requirements. implementation plan or plan revision, Carolina SIP. The emission inventory The CO SIP is designed to satisfy the the State and any affected local or tribal projections are included in the requirements of Part D of the CAA and governments have elected to adopt the maintenance plans. to provide for attainment and program provided for under section (i) Incorporation by reference. Section maintenance of the CO NAAQS. This 175A and section 187(a)(1) of the Clean 3 of the Redesignation Demonstration final redesignation should not be Air Act. The rules and commitments and Maintenance Plan for Raleigh/ Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39263 Durham, Winston-Salem, and Charlotte PART 81Ð[AMENDED] removing the entries for ‘‘Charlotte area Carbon Monoxide Nonattainment Area and Raleigh-Durham area’’; and by adopted on September 8, 1994. Subpart CÐSection 107 Attainment adding entries for Mecklenburg, Status Designations (ii) Other material. None. Durham, and Wake Counties in alphabetical order; and by revising the * * * * * 1. The authority citation for part 81 continues to read as follows: entry ‘‘Rest of State’’ to read ‘‘Statewide’’. Authority: 42 U.S.C. 7401–7671q. 2. In § 81.334 the ‘‘North Carolina- § 81.334 North Carolina. Carbon Monoxide’’ table is amended by * * * * * NORTH CAROLINAÐCARBON MONOXIDE Designation Classification Date 1 Type Date 1 Type Statewide ...... Unclassifiable/Attainment ******* Durham County ...... September 18, 1995. ******* Mecklenburg County ...... September 18, 1995. ******* Wake County ...... September 18, 1995. ******* 1 This date is November 15, 1990, unless otherwise noted. [FR Doc. 95–18881 Filed 8–1–95; 8:45 am] 1995. If the effective date is delayed due for approval of its programs and BILLING CODE 6560±50±P to comments, timely notice will be delegation of authority under section published in the Federal Register. 112(l) of the Clean Air Act and in ADDRESSES: Written comments should accordance with 40 CFR 63.91, for 40 CFR Part 61 be addressed to: Richard Poeton, Air & NESHAPS pertaining to radionuclide emissions (40 CFR part 61, subparts H [FRL±5269±8] Radiation Branch (AT–082), EPA, 1200 Sixth Avenue, Seattle, Washington, and I, as promulgated). These standards Interim Approval of Delegation of 98101, and concurrently to Allen W. have been incorporated into the law of Authority; National Emission Conklin, Head, Air Emissions and the state of Washington. Standards for Hazardous Air Defense Waste Section, Washington EPA already promulgated interim Pollutants; Radionuclides; Washington Department of Health, Airdustrial approval of the Part 70 operating Center Building #5, P.O. Box 47827, permits program under Title V of the AGENCY: Environmental Protection Olympia, Washington, 98504–7827. Clean Air Act for the state of Agency (EPA). Copies of the state of Washington’s Washington (see 59 FR 55813 ACTION: Direct final rule. application are available for public (November 9, 1994)). Part 70 approval inspection during normal business also confers approval under section SUMMARY: EPA is granting interim hours at the above locations. 112(l) for delegation of unchanged delegation of authority to the state of FOR FURTHER INFORMATION CONTACT: federal standards because requirements Washington to implement and enforce Richard Poeton at (206) 553–8633. for part 70 approval, specified in 40 CFR two National Emission Standards for 70.4(b), encompass section 112(l)(5) SUPPLEMENTARY INFORMATION: Hazardous Air Pollutants (NESHAPs) approval requirements. Therefore, for for radionuclides: National Emission Background part 70 sources, Part 70 approval also Standards for Emissions of Due to the unique nature of constitutes approval under section Radionuclides other than Radon from radionuclide materials, delegation of 112(l)(5) of the state’s programs for Department of Energy Facilities (40 CFR authority to states to implement and delegation of section 112 standards that part 61, subpart H) and National enforce a NESHAP program for are unchanged from federal standards as Emission Standards for Radionuclide radionuclides is not automatic, and promulgated. Emissions from Facilities Licensed by certain standards may only be delegated EPA is granting interim delegation as the Nuclear Regulatory Commission and as promulgated. EPA’s regional offices a direct final rule without prior proposal Federal Facilities not covered by have traditionally assumed the lead because EPA views this as a subpart H (40 CFR part 61, subpart I), responsibility for administering the noncontroversial action and anticipates as promulgated, for sources subject to radionuclides NESHAP. However, EPA no adverse comments. However, as the part 70 operating permits program of is committed to enabling state and local required by 40 CFR 63.91(a)(2), EPA is the state of Washington under Title V of governments, as partners, to implement seeking public comments for 30 days. the Clean Air Act. and enforce the requirements of the Comments shall be submitted DATES: This action will be effective on Clean Air Act. concurrently to EPA and the state of October 2, 1995 unless adverse On March 28, 1994, the state of Washington. If no adverse comments are comments are received by September 1, Washington submitted an application received in response to this rule, this 39264 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations Federal Register notice will serve as the For instance, the EPA Administrator to the provisions associated with final notice of the interim delegation of retains authority to implement those extinguishing an illuminated the implementation and enforcement of sections of the NESHAP that require malfunction indicator light. The current this program. The effective date will be approval of equivalency determinations provisions contained in § 86.094–17(d) 60 days from the date of this publication and alternative test methods, allow have proven to be unexpectedly and no further activity is contemplated waivers for emission testing and burdensome on the industry and do not in relation to this rule. If EPA receives compliance, and to promulgate rules to provide the expected beneficial effects adverse comments, this direct final rule implement 40 CFR part 61. to vehicle owners, repair shop will be withdrawn and all public EPA retains concurrent enforcement personnel, or air quality. comments received will be addressed in authority. In exercising its concurrent DATES: This final action will become a subsequent final rule based on the authority, EPA is not bound by any state effective on October 2, 1995, unless accompanying proposed rule which action or determination in carrying out notice is received by September 1, 1995, appears in the proposed rule section of any authority delegated to the state that any person wishes to submit this Federal Register. However, EPA pursuant to section 112(l). If at any time adverse comments. Should EPA receive will not institute a second comment there is a conflict between the state and such notice, EPA will publish one period on this action. Thus, any parties federal regulations, the federal subsequent action in the Federal interested in commenting on this action standards apply if they are more Register withdrawing this final action. should do so in the next 30 days. stringent than the state regulations. ADDRESSES: Written comments should This interim delegation, which may Final Action be submitted (in duplicate if possible) not be renewed, extends until November to: The Air Docket, room M–1500 (Mail Pursuant to Section 112(l) of the 9, 1996, which is the expiration date of Code 6102), Waterside Mall, Attention: Clean Air Act, 42 U.S.C. 7412(l), and 40 the interim approval of the Washington Docket No. A–90–35, 401 M Street, SW., CFR 63.91, EPA hereby grants interim Title V operating permits program. If Washington, DC 20460. Materials delegation of its authority for the EPA grants full approval of the relevant to this rulemaking are implementation and enforcement of the Washington Title V operating permits contained in Docket No. A–90–35, and following National Emission Standards program, full delegation of these two are available for public inspection and for Radionuclides for sources subject to radionuclide NESHAPS (40 CFR part 61, photocopying between 8:00 a.m. and part 70 and located, or to be located, in subparts H and I) for part 70 sources 5:30 p.m. Monday through Friday. The the state of Washington: may be incorporated into that approval. telephone number is (202) 260–7548 (1) National Emission Standards for If EPA has not granted full delegation to Emissions of Radionuclides Other Than and the facsimile number is (202) 260– the state by that date, EPA will resume 4400. A reasonable fee may be charged Radon From Department of Energy sole authority for implementation of the Facilities (40 CFR part 61, Subpart H); by EPA for copying docket material. federal radionuclide NESHAPS in Those wishing to notify EPA of their and Washington at that time. (2) National Emission Standards for intent to submit adverse comments on Radionuclide Emissions From Facilities List of Subjects in 40 CFR Part 61 this action should contact Todd Sherwood, Certification Division, U.S. Licensed by the Nuclear Regulatory Environmental protection, Air Commission and Federal Facilities Not Environmental Protection Agency, 2565 pollution control, Intergovernmental Plymouth Road, Ann Arbor, Michigan Covered by Subpart H (40 CFR part 61, relations, Radiation protection. Subpart I). 48105. This interim delegation is limited to Dated: July 20, 1995. FOR FURTHER INFORMATION CONTACT: the NESHAP standards and authorities Chuck Clarke, Todd Sherwood, (313) 668–4405. Regional Administrator, Region 10. as promulgated in 40 CFR part 61, SUPPLEMENTARY INFORMATION: Subparts H and I, applied to part 70 [FR Doc. 95–18987 Filed 8–1–95; 8:45 am] sources, and incorporated into the law BILLING CODE 6560±50±P I. Introduction and Background of the state of Washington: the On February 19, 1993, the EPA delegation does not extend to any promulgated a final rulemaking additional state standards. Specifically, 40 CFR Part 86 requiring manufacturers of light-duty EPA’s interim delegation applies to [AMS±FRL±5268±6] vehicles and light-duty trucks to install WAC 246–247–040(1), to the extent the on-board emission control diagnostics standards reference the federal RIN 2060±AC65 (OBD) systems on such vehicles standards as promulgated; WAC 246– beginning in model year 1994.1 The Control of Air Pollution From New 247–075(1); WAC 246–247–080(2); regulations promulgated in that final Motor Vehicles and New Motor Vehicle WAC 246–247–085(1), where it rulemaking require that, ‘‘If a Engines: Regulations Requiring On- incorporates by reference the malfunction has previously been Board Diagnostic SystemsÐRevision monitoring, testing, quality assurance, detected, the MIL may be extinguished to Requirements for Storage of Engine recordkeeping, reporting, and if the malfunction does not reoccur Conditions Associated With compliance determination procedures during three subsequent sequential trips Extinguishing a Malfunction Indicator and requirements of the federal during which engine speed is within Light standards. The federal requirement to 375 rpm, engine load is within 10 file an application to construct or AGENCY: Environmental Protection percent, and the engine’s warm-up modify has not been incorporated into Agency (EPA). status is the same as that under which Washington state law. Therefore, ACTION: Direct final rule. the malfunction was first detected, and facilities subject to the federal NESHAPs no new malfunctions have been are still required to submit all such SUMMARY: This direct final rulemaking detected.’’ 2 The State of California, in applications to EPA. makes certain technical revisions to the its second phase of OBD requirements Not all authorities for the requirements associated with on-board implementing and enforcing the diagnostic (OBD) systems, as specified 1 58 FR 9468, February 19, 1993. NESHAPs can be delegated to the state. by § 86.094–17. Changes are being made 2 40 CFR 86.094–17(d). Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39265 (OBD II),3 had adopted the same necessary to achieve a highly effective extinguishing the MIL.4 The revised requirement, but limited its OBD system. OBD II requirements define a driving applicability to fuel system and engine II. Requirements of this Direct Final cycle as ‘‘engine startup, and engine misfire malfunctions. In contrast, the Rulemaking shutoff,’’ while a ‘‘trip’’ is specified as federal requirement applies to all vehicle operation of sufficient length malfunctions. For non-fuel system and This direct final rulemaking restricts such that all components other than the non-misfire related malfunctions, the the applicability of the requirement catalyst and evaporative system are OBD II regulation allowed the MIL to be preventing the MIL from being monitored. The federal OBD regulation extinguished after undergoing three extinguished unless the vehicle takes specifies that all components be three subsequent sequential trips where subsequent trips without recurrence of monitored periodically, but no less similar engine operating conditions the malfunction, regardless of whether frequently than once per Urban occur and the malfunction does not or not the vehicle experienced similar Dynamometer Driving Schedule (UDDS) engine conditions (i.e., engine speed, reoccur. The ‘‘similar engine or similar ‘‘trip.’’ The preamble to the engine load, engine warm-up as conditions’’ requirement shall be Agency’s final rulemaking also states described above) during the subsequent restricted solely to the fuel system and trips. engine misfire related malfunctions. For that all components monitored by the OBD system shall be evaluated at least The intent behind the federal OBD all other malfunctions, the MIL may be extinguished if the vehicle experiences once every trip, with one CVS–72 provision was to have the MIL driving cycle qualifying as a trip.5 illuminated for any and all malfunctions three subsequent sequential trips where unless it could be verified that the the malfunction does not reoccur, Therefore, under the OBD II malfunction was not valid, or that the regardless of engine conditions. regulation, MIL illumination associated malfunction was only intermittent and EPA has determined that it is with a specific malfunction can no longer existed. Pursuant to that unnecessary and inappropriate to effectively be extinguished after three intent, EPA decided to require that the require ‘‘similar engine conditions’’ to successful monitoring events provided MIL must remain illuminated until the be present for three trips before the malfunction is not again detected 6, vehicle takes three subsequent trips extinguishing the MIL for all non-fuel regardless of whether or not every during which engine conditions are system and non-misfire related component has been monitored. Under similar and the malfunction does not malfunctions. The similar engine the federal OBD use of the term ‘‘trip,’’ conditions required for storage relate to reappear. This decision was made the same holds true. The intent being engine operating speed and load. Under assuming that usually only one that three subsequent sequential the regulations initially promulgated, malfunction, and no more than two or successful monitoring events occur these conditions would need to be three malfunctions, would exist on a without again detecting the malfunction vehicle at any given time with one stored for all malfunctions so that a vehicle passing through these same prior to extinguishing an illuminated malfunction trouble code stored for MIL associated with that malfunction. each. However, because of the way most conditions without re-detecting the OBD systems are designed, one real malfunction would be allowed to III. Public Participation and Effective malfunction may cause storage of extinguish the MIL under the Date several different trouble codes; and, a presumption that the first detection was set of ‘‘similar operating conditions’’ not a valid detection. However, only The Agency is publishing this action are, by manufacturer design not by fuel system and engine misfire related as a direct final rule because it views the regulation, stored for each trouble code, malfunctions are likely to occur changes contained herein as not one set for each malfunction. exclusively at certain speed and load noncontroversial and anticipates no Consequently, according to auto conditions. Therefore, only for adverse or critical comments. This manufacturers, two or three malfunctions associated with the fuel direct final rulemaking alters an existing malfunctions could result in storage of system or engine misfire is it provision by reducing the required as many as 15 trouble codes, with a set appropriate to assure the vehicle has memory of vehicle computers and of similar operating conditions stored in been operated over the same speed and having no resultant impact on OBD the memory bank of the on-board load conditions before determining the effectiveness or air quality. malfunction is not recurring. For all computer for each of 15 trouble codes, This action will be effective on rather than each of three malfunctions. other malfunctions, the engine speed and load are not pertinent to the October 2, 1995, unless EPA is notified As a result, auto manufacturers have by September 1, 1995, that adverse or stated that they are forced to dedicate decision of whether the first malfunction detection was correct or critical comments will be submitted. enough computer memory to store Should EPA receive such notice, EPA similar engine conditions for as many as incorrect. Therefore, for malfunctions will publish one action withdrawing 50 to 200 trouble codes, depending on other than those associated with fuel this final action and another proposing the number of codes used by the system or engine misfire, the vehicle manufacturer, because they cannot risk will still have to undergo three trips this action and requesting comments. having insufficient storage capacity in without re-detecting the malfunction, the unlikely event that such a high but the engine speed and load would number of malfunctions are detected not be considered and, therefore, would 4 California Air Resources Board Mail-Out #95– and trouble codes stored. Such not have to be stored in computer 03. computer memory requirements are memory. 5 The CVS–72 driving cycle is equivalent to the costly, are inconsistent with California It is important to note that recent UDDS as defined in 40 CFR part 86, Appendix I, revisions to the California OBD II paragraph (a). OBD II computer memory requirements, 6 Specifically, the MIL may be extinguished after and, as explained below, are not regulation specify three ‘‘driving cycles’’ rather than three ‘‘trips’’ prior to three subsequent sequential driving cycles during which the monitoring system responsible for 3 Title 13, California Code of Regulations, illuminating the MIL functions without detecting § 1968.1(d). the malfunction. 39266 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations IV. Administrative Requirements certifies that this regulation will not proceed through the following options have a significant impact on a from a series of menus: A. Administrative Designation substantial number of small entities. (T) Gateway to TTN Technical Areas Under Executive Order 12866,7 the D. Paperwork Reduction Act (Bulletin Boards) Agency must determine whether the (M) OMS regulatory action is ‘‘significant’’ and The Paperwork Reduction Act of (K) Rulemaking and Reporting therefore subject to OMB review and the 1980, 44 U.S.C. 3501 et seq., and At this point, the system will list all requirements of the Executive Order. implementing regulations, 5 CFR Part available files in the chosen category in The Order defines ‘‘significant 1320, do not apply to this action as it chronological order with brief regulatory action’’ as one that is likely does not involve the collection of descriptions. File information can be to result in a rule that may: information as defined therein. obtained from the ‘‘READ.ME’’ file. To (1) have an annual effect on the economy E. Unfunded Mandates Act download a file, the user needs to of $100 million or more or adversely affect choose a file transfer protocol in a material way the economy, a sector of Section 202 of the Unfunded appropriate for the user’s computer from the economy, productivity, competition, jobs, Mandates Reform Act of 1995 the options listed on the terminal. the environment, public health or safety, or (‘‘Unfunded Mandates Act’’), signed TTNBBS is available 24 hours a day, State, local, or tribal governments or into law on March 22, 1995, EPA must 7 days a week except Monday morning communities; prepare a budgetary impact statement to from 8–12 Eastern Time, when the (2) create a serious inconsistency or accompany any proposed or final rule system is down for maintenance and otherwise interfere with an action taken or that includes a Federal mandate that planned by another agency; backup. For help in accessing the (3) materially alter the budgetary impact of may result in expenditure by State, system, call the systems operator at entitlements, grants, user fees, or loan local, and tribal governments, in the (919) 541–5384 in Research Triangle programs or the rights and obligations of aggregate; or by the private sector, of Park, North Carolina, during normal recipients thereof; or, $100 million or more. Under Section business hours Eastern Time. (4) raise novel legal or policy issues arising 205, EPA must select the most cost- out of legal mandates, the President’s effective and least burdensome List of Subjects in 40 CFR Part 86 priorities, or the principles set forth in the alternative that achieves the objectives Environmental protection, Executive Order. of the rule and is consistent with Administrative practice and procedure, It has been determined that this rule statutory requirements. Section 203 Air pollution control, Gasoline, Motor is not a ‘‘significant regulatory action’’ requires EPA to establish a plan for vehicles, Motor vehicle pollution, under the terms of Executive Order informing and advising any small Reporting and recordkeeping 12866 and is therefore not subject to governments that may be significantly requirements. OMB review. Also, this rule is not or uniquely impacted by the rule. Dated: July 25, 1995. subject to the Unfunded Mandates EPA has determined that the action Carol M. Browner, Reform Act of 1995, signed into law on promulgated today does not include a Administrator. March 22, 1995, because it does not Federal mandate that may result in have costs of $100 million or more. estimated costs of $100 million or more For the reasons set out in the preamble, part 86 of title 40 of the Code B. Reporting and Recordkeeping to either State, local or tribal of Federal Regulations is amended as Requirements governments in the aggregate, or to the private sector. This action has the net follows: This direct final rulemaking does not effect of reducing burden of the on- change the information collection board diagnostic systems on regulated PART 86ÐCONTROL OF AIR requirements submitted to and entities. Therefore, the requirements of POLLUTION FROM NEW AND IN-USE approved by OMB in association with the Unfunded Mandates Act do not MOTOR VEHICLES AND NEW AND IN- the OBD final rulemaking.8 apply to this action. USE MOTOR VEHICLE ENGINES: CERTIFICATION AND TEST C. Impact on Small Entities F. Electronic Copies of Rulemaking PROCEDURES The Regulatory Flexibility Act of 1980 Documents requires Federal agencies to identify 1. The authority citation for part 86 Electronic copies of the preamble and potentially adverse impacts of federal continues to read as follows: the regulatory text of this direct final regulations upon small entities. This rulemaking are available on the Office of Authority: Secs. 202, 203, 205, 206, 207, direct final rulemaking will provide a 208, 215, 216, 217, and 301(a), Clean Air Act, Air Quality Planning and Standards small cost savings to both large and as amended (42 U.S.C. 7521, 7522, 7524, (OAQPS) Technology Transfer Network small volume automobile manufacturers 7525, 7541, 7542, 7549, 7550, 7552, and bulletin Board System (TTNBBS). by reducing the required computer 7601(a)). Instructions for accessing TTNBBS and memory capacity of their vehicle downloading the relevant files are Subpart AÐ[Amended] computers. This direct final rulemaking described below. will have no impact on businesses 2. Section 86.094–17 is amended by which manufacture, rebuild, distribute, TTNBBS can be accessed using a dial- revising paragraph (d) to read as or sell automotive parts, nor those in telephone line (919) 541–5742 and a follows: involved in automotive service and 1200, 2400, or 9600 bps modem repair. (equipment up to 14.4 Kbps can be § 86.094±17 Emission control diagnostic Therefore, pursuant to section 605(b) accommodated). The parity of the system for 1994 and later light-duty vehicles and light-duty trucks. of the Regulatory Flexibility Act, 5 modem should be set to N or none, the U.S.C. 605(B) et seq., the Administrator data bits to 8, and the stop bits to 1. * * * * * When first signing on the bulletin board, (d) The MIL shall illuminate and 7 58 FR 51735 (October 4, 1993). the user will be required to answer some remain illuminated when any of the 8 58 FR 9468, February 19, 1993; and, 59 FR basic informational questions to register conditions specified in paragraphs (a) 38372, July 28, 1994. into the system. After registering, and (b) of this section are met, or Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39267 whenever the engine control enters a SUPPLEMENTARY INFORMATION: Ammonium hydroxide’’, the letters default or secondary mode of operation. Need for Correction ‘‘AMH’’ should be removed from the The MIL shall blink under any period of ‘‘CHRIS code’’ column to the ‘‘Related operation during which engine misfire As published, the final rule contains CHRIS codes’’ column; and, in the entry is occurring at a level likely to cause typographical errors and omissions for ‘‘Glycidyl ester of C10 trialkyl acetic catalyst damage as determined by the which may prove to be misleading and acid, see Glycidyl ester of tridecyl acetic manufacturer. The MIL shall also are in need correction. acid’’, the letters ‘‘GILT’’ should be illuminate when the vehicle’s ignition is Correction of Publication moved from the ‘‘CHRIS code’’ column in the ‘‘key-on’’ position before engine to the ‘‘Related CHRIS codes’’ column. Accordingly, the publication on June starting or cranking and extinguish after 11. On page 34048, in Table 1,in the 29, 1995, of the final rule [CGD 95–900], engine starting if no malfunction has entry for ‘‘Octyl phthalate, see Dialkyl which was the subject of FR Doc. 95– previously been detected. If a fuel (C7–C13) pathalates’’, the letters ‘‘DAN’’ 15749, is corrected as follows: system or engine misfire malfunction should be moved from the ‘‘CHRIS 1. On page 34045, in the second has previously been detected, the MIL code’’ column to the ‘‘Related CHRIS column, in paragraph 2.c. fourth line, may be extinguished if the malfunction codes’’ column; and, in the entry for paragraph 2.e. third line, paragraph 2.f. does not reoccur during three ‘‘Oils, edible: Maize’’, the letters ‘‘LEO/ fourth line, paragraph 2.h. fourth line, subsequent sequential trips during OCO’’ should be moved from the and paragraph 2.i. third line, the which engine speed is within 375 rpm, ‘‘CHRIS code’’ column to the ‘‘Related superscript period ‘‘.’’ should be a bullet engine load is within 10 percent, and CHRIS codes’’ column. ‘‘•’’. the engine’s warm-up status is the same 12. On page 34049, in Table 1, in the as that under which the malfunction 2. On the same page, in the second column, in paragraph 2., the following entry for ‘‘Soyabean oil (epoxidized)’’, was first detected, and no new the letters ‘‘OSC/EVO’’ should be moved malfunctions have been detected. If any words should be in bold face type: a. Paragraph 2.c., fifth line, the word from the ‘‘CHRIS code’’ column to the malfunction other than a fuel system or ‘‘Related CHRIS codes’’ column; in the engine misfire malfunction has been ‘‘alkyl’’. b. Paragraph 2.d., starting on the fifth entry for ‘‘Tetraprophlbenzene, see detected, the MIL may be extinguished line, the words ‘‘Poly(2-8)alkylene Alkyl(69+)benzens’’, the letters ‘‘AKB’’ if the malfunction does not reoccur glycol monoalkyl (C1–C6) ether should be moved from the ‘‘CHRIS during three subsequent sequential trips acetate.’’ code’’ column to the ‘‘Related CHRIS during which the monitoring system c. Paragraph 2.e., fifth line, the word codes’’ column; in the entry ‘‘1,3,5- responsible for illuminating the MIL ‘‘Polydimethylsiloxane’’. Trioxane’’, in the ‘‘Group No.’’ column, functions without detecting the 2 2 d. Paragraph 2.f., fifth line, the word replace the number ‘‘ 42’’ with ‘‘ 41’’; in malfunction, and no new malfunctions ‘‘mixture’’. the entry for ‘‘Trixylyl phosphate, see have been detected. e. Paragraph 2.i., fourth line, the Trixylenyl posphate’’, the letters ‘‘TRP’’ * * * * * words ‘‘Alcohols (C13+)’’. should be moved from the ‘‘CHRIS [FR Doc. 95–18990 Filed 8–1–95; 8:45 am] 3. On the same page, in the third code’’ column to the ‘‘Related CHRIS BILLING CODE 6560±50±P column, in paragraph 6.d., ‘‘(c10+)’’ codes’’ column; and, in the entry for should read ‘‘(C10+)’’. ‘‘Urea solution’’, the letters ‘‘URE’’ 4. On page 34046, in the first column, should be moved from the ‘‘CHRIS in paragraph q., seventh line, add a code’’ column to the ‘‘Related CHRIS DEPARTMENT OF TRANSPORTATION quotation mark before the word codes’’ column. ‘‘Related’’. 13. On the same page, in the third Coast Guard 5. On the same page, in the second column, in paragraph e., third line, add column, fourth line, the number ‘‘7’’ a quotation mark before the second 46 CFR Parts 30 and 150 should be ‘‘8’’. letter ‘‘N–’’; and in paragraph f., first 6. On the same page, in the second line, ‘‘Phonols’’ should be ‘‘Phenols’’; [CGD 95±900] column, paragraph s. should read as 14. On page 34051, in Table 1, in follows: column a., the entry— RIN 2115±AF07 s. In the ‘‘Chemical name’’ column, ‘‘Bromochlorone- thane’’ should read remove the words ‘‘Ethylene glycol ‘‘Bromochloromethane’’; Bulk Hazardous Materials; Correction ethyl ether’’ and add, in their place, the ‘‘Dibromo-methane’’ should read words ‘‘Ethylene glycol ethyl ether, see AGENCY: Coast Guard, DOT. ‘‘Dibromomethane’’; Polk(2-8)alkylene glycol monoalkyl (C1– ACTION: Correction to final rule. C6) ether’’, and in the ‘‘Related CHRIS ‘‘3,4- Dichloro- 1-butene’’should ‘‘3,4- codes’’ column for the new entry, add Dichloro-1-butene’’; SUMMARY: This Document contains the code ‘‘PAG’’. ‘‘N-(2- Methoxy-1-ethyl)-2-ethyl-6- corrections to the final rule [CGD 95– 7. On the same page, in the second methyl chloro-acetanilide, see 900], which was published Thursday, column, in paragraph t., second and Metolachlor’’ should read ‘‘N-(2- June 29, 1995, (60 FR 34043). The rule third lines, add a quotation mark before Methoxy-1-methyl ethyl)-2-ethyl-6- amends the regulations on carriage of the word ‘‘Diethyl’’. methyl chloroacetanilide, see bulk hazardous materials by adding 8. On the same page, in the third Metolachlor’’; cargoes recently authorized for carriage column, first line, add ‘‘2¥’’ before the ‘‘Nitro propane (20%), Nitroethane or added to the International Maritime word ‘‘Ethoxyethyl’’. (80%) 7’’ should read ‘‘Nitropropane Organization’s Chemical Codes. 9. On the same page, in the third (20%), Nitroethane (80%) 7’’; and EFFECTIVE DATE: This rule is effective on column, paragraph ee., fourth line, add ‘‘Potassium polysul aide, Potassium August 2, 1995. a quotation mark before the word thiosulfate solution (41% or less)’’ FOR FURTHER INFORMATION CONTACT: Mr. ‘‘Ethylene’’. should read ‘‘Potassium polyslfide, Curtis G. Payne, Hazardous Materials 10. On page 34047, in Table 1, in the Potassium thiosulfate solution (41% or Branch, (202) 267–1577. entry for ‘‘Ammonia,aqueous, see less)’’. 39268 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations Dated: July 24, 1995. become part of this docket and will be INFORMATION CONTACT by August 23, J.C. Card, available for inspection or copying at 1995. Rear Admiral, U.S. Coast Guard, Chief, Office room 3406, U.S. Coast Guard Participants are reminded that of Marine Safety, Security and Environmental Headquarters, between 8 a.m. and 3 discussion of issues outside the above Protection. p.m., Monday through Friday, except agenda may be limited by the Coast [FR Doc. 95–18764 Filed 8–1–95; 8:45 am] Federal holidays. Guard. BILLING CODE 4910±14±M FOR FURTHER INFORMATION CONTACT: With advance notice and as time Mr. Samuel E. Wehr, Office of Marine permits, members of the public may Safety, Security and Environmental make oral presentations during the 46 CFR Part 160 Protection, Attn: G–MVI–3/14, 2100 meeting. Persons wishing to make oral [CGD 94±110] Second Street, SW, Washington, DC presentations should make notification 20593–0001, telephone (202) 267–1444 RIN 2115±AE96 no later than 4 p.m. Thursday, August between the hours of 8 a.m. and 4 p.m. 24, 1995. Individuals making oral Recreational Inflatable Personal Monday through Friday except Federal presentations at the meeting are Flotation Device Standards holidays, or facsimile (202) 267–1069. encouraged to submit a written copy of SUPPLEMENTARY INFORMATION: The Coast their remarks for the rulemaking docket. AGENCY: Coast Guard, DOT. Guard has received comments Interested persons are also invited to ACTION: Notice of meeting; request for indicating that the ‘‘Life-Saving Index’’ participate by providing written comments. (LSI) provisions of the Recreation comments as requested in response to Inflatable Personal Flotation Device the IR cited above. SUMMARY: The Coast Guard published an Standards IR published in the Federal If as an outgrowth of this meeting, a interim rule (IR) on Recreational Register on June 23, 1995 (60 FR 32836) standard is developed for the LSI Inflatable Personal Flotation Device are confusing and have caused Model, which provides a suitable basis (PFD) Standards on June 23, 1995, uncertainty for manufacturers. for the evaluation of inflatable PFDs which introduced a new concept for Appendix A to the Draft Regulatory under 46 CFR 160.076–27, notice of approval of PFDs, the ‘‘Life-Saving Evaluation, which is on file as part of proposed rulemaking (NPRM) or Index’’ (LSI). Comments on the IR the docket where indicated under supplemental NPRM (SNPRM) in which indicate that there is some confusion ADDRESSES and was sent to the Coast Guard discusses and proposes and uncertainty about use of the LSI. manufacturers, provides a great deal of adoption of all or part of it, will be The Coast Guard will conduct a public guidance on how to apply the LSI published in the Federal Register. meeting to discuss the use of the LSI in provisions in the approval process. the approval of inflatable PFDs. This However, to facilitate the use of this Dated: July 27, 1995. meeting is intended for PFD and method for approval so that as wide a J.C. Card, inflation system manufacturers and variety as possible of inflatable PFDs Rear Admiral, U.S. Coast Guard, Chief, Office technical experts knowledgeable in the can be approved, the Coast Guard is of Marine Safety, Security and Environmental field as well as other interested parties. holding this meeting. Protection. DATES: The meeting will be held August The agenda for the August 28, 1995 [FR Doc. 95–19007 Filed 8–1–95; 8:45 am] 28, 1995, from 9 a.m. to 4 p.m. Notice meeting will include the following BILLING CODE 4910±14±M of interest in participation should be topics: made by August 23, 1995 to ensure (1) Overview of Appendix A to the adequate space is available. Written Draft Regulatory Evaluation. material must be received not later than (2) Response to questions on the FEDERAL COMMUNICATIONS October 23, 1995. information in Appendix A to the Draft COMMISSION ADDRESSES: The meeting will be held at Regulatory Evaluation. U.S. Coast Guard Headquarters, Room (3) Sample calculations of LSIs for 47 CFR Part 1 2415, 2100 Second Street, SW, representative PFD designs. Washington, DC 20593–0001. Persons (4) Discussion of methods to [DA95±1524] having an interest in participating in the standardize the LSI model. meeting, should notify the Coast Guard (5) Discussion of potential methods to Anti-Drug Abuse Act of 1988 by contacting Mr. Samuel Wehr, Office demonstrate increased wearability of Marine Safety, Security and values for inflatable PFDs. AGENCY: Federal Communications Environmental Protection, Attn: G– (6) Coast Guard policy on annual Commission. MVI–3/14, 2100 Second Street, SW, review and revision of the minimum LSI ACTION: Final rule. Washington, DC 20593–0001, telephone value required for approval and impact (202) 267–1444 between the hours of 8 on existing approvals issued under the SUMMARY: This Order will amend the a.m. and 4 p.m. Monday through Friday LSI. Commission’s Rules to reflect the except Federal holidays, or facsimile (7) Discussion of PFD information correct citation to the Anti-Drug Abuse (202) 267–1069. pamphlet requirements and Act of 1988. The Commission amended Written comments may be mailed to standardization. its rules to be in compliance with the the Executive Secretary, Marine Safety Attendance is open to the public, but Anti-Drug Abuse Act of 1988. The Council (G–LRA) (CGD 94–110), U.S. notice of intent to attend the meeting is purpose of this Order is to provide Coast Guard Headquarters, 2100 Second requested in order that adequate space guidance to the public and avoid any Street SW., Washington, DC 20593– and audio/visual aids can be provided. potential uncertainty. 0001, or may be delivered to room 3406 In order to determine what EFFECTIVE DATE: August 2, 1995. at the same address between 8 a.m. and accommodations need to be arranged, 3 p.m., Monday through Friday, except persons wishing to attend the meeting FOR FURTHER INFORMATION CONTACT: Federal holidays. The telephone number should notify Mr. Samuel Wehr at the Wendy A. Whitley, Office of General is (202) 267–1477. Comments will number listed under FOR FURTHER Counsel, (202) 418–1720. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39269 SUPPLEMENTARY INFORMATION: applicant nor any party to the Any petitions for reconsideration application is subject to a denial of must be received by NHTSA not later Order Federal benefits that includes FCC than September 1, 1995. Adopted: July 7, 1995; Released: July 10, benefits pursuant to section 5301 of the ADDRESSES: Any petitions for 1995 Anti-Drug Abuse Act of 1988. 21 U.S.C. reconsideration should refer to the In the Matter of: Amendment of Sections 862. If a section 5301 certification has docket and notice numbers above and 1.2001 and 1.2002 of the Commission’s been incorporated into the FCC be submitted to: Docket Section, Rules. application form being filed, the National Highway Traffic Safety By the Managing director: applicant need not submit a separate Administration, 400 Seventh Street, 1. By this Order, we amend Sections certification. If a section 5301 S.W., Washington, D.C. 20590. Docket 1.2001 and 1.2002 of the Commission’s certification has not been incorporated hours are 9:30 a.m. to 4 p.m., Monday Rules, 47 CFR 1.2001 and 1.2002 to into the FCC application form being through Friday. reflect the correct citation to the Anti- filed, the applicant shall be deemed to FOR FURTHER INFORMATION CONTACT: Mr. Drug Abuse Act of 1988. 21 U.S.C. 862. have certified by signing the Clive Van Orden, Office of Vehicle The citation to this act was changed application, unless an exhibit is Safety Compliance, National Highway subsequent to the time our rules were included stating that the signature does Traffic Safety Administration, 400 written. not constitute such a certification and Seventh Street, S.W., Washington, D.C. 2. Accordingly, pursuant to Section explaining why the applicant is unable 20590. (202–366–2830). 0.231(b) of the Commission’s rules 47 to certify. If no FCC application form is SUPPLEMENTARY INFORMATION: This rule CFR 0.231(b), It is ordered that Sections involved, the applicant must attach a was preceded by a notice of proposed 1.2001 and 1.2002 of the Commission’s certification to its written application. If rulemaking (NPRM) that NHTSA Rules, 47 CFR 1.2001, 1.2002 are the applicant is unable to so certify, the published on March 24, 1995 (60 FR amended as set forth below effective applicant shall be ineligible for the 15529). The NPRM noted that under upon publication in the Federal authorization for which it applied, and uniform tire quality grading (UTQG) Register. will have 90 days from the filing of the standards at 49 CFR 575.104, tires must application to comply with this rule. If Federal Communications Commission be labelled with information indicating a section 5301 certification has been their relative performance in the areas of Andrew S. Fishel, incorporated into the FCC application Managing Director. treadwear, traction, and temperature form, failure to respond to the question resistance. For the purpose of evaluating Rule Changes concerning certification shall result in treadwear performance, NHTSA dismissal of the application pursuant to established a 400 mile roadway course PART 1ÐPRACTICE AND the relevant processing rules. near San Angelo, Texas, which is PROCEDURE * * * * * designed to produce treadwear rates that Part 1 of chapter I of title 47 of the [FR Doc. 95–18949 Filed 8–1–95; 8:45 am] are generally representative of those Code of Federal Regulations is amended BILLING CODE 6712±01±M encountered by tires in public use. as follows: Under the UTQG standards, the 1. The authority citation for part 1 projected mileage obtained for tested continues to read: tires must be corrected to account for DEPARTMENT OF TRANSPORTATION Authority: 47 U.S.C. 151, 154, 303, and environmental and other variations that occur during testing on the course. This 309(j) unless otherwise noted. National Highway Traffic Safety is done by comparing the performance Administration 2. Section 1.2001 is revised to read as of the tested tires to that of course follows: 49 CFR Part 575 monitoring tires run in the same § 1.2001 Purpose. convoy. The course monitoring tires are To determine eligibility for [Docket No. 95±19; Notice 2] specially manufactured under professional and/or commercial licenses controlled conditions so that they can issued by the Commission with respect RIN 2127±AF±64 be used as a grading standard, and are to any denials of Federal benefits made available by NHTSA for purchase imposed by Federal and/or state courts Consumer Information Regulations; at the San Angelo test facility. under authority granted in 21 U.S.C. Fees for Course Monitoring Tires and The NPRM noted that the UTQG 862. for Use of Traction Skid Pads standards also require that tire traction 3. Section 1.2002 is amended by be evaluated on skid pads that have AGENCY: National Highway Traffic revising paragraph (a) to read as follows: specified locked-wheel traction Safety Administration (NHTSA), coefficients. Two of these traction skid § 1.2002 Applicants required to submit Department of Transportation. pads have been constructed at NHTSA’s information. ACTION: Final rule. facility in San Angelo, as well as at (a) In order to be eligible for any new, several commercial facilities that may modified, and/or renewed instrument of SUMMARY: This rule amends NHTSA’s also be used by tire manufacturers. authorization from the Commission, consumer information regulations on The NPRM stated that an audit including but not limited to, uniform tire quality grading by conducted by the Department of authorizations issued pursuant to establishing fees for the purchase of Transportation’s Office of Inspector sections 214, 301, 302, 303(1), 308, treadwear course monitoring tires and General (OIG) concluded that NHTSA 310(d), 318, 319, 325(b), 351, 361(b), for the use of the traction skid pads at was not recovering the full cost of the 362(b), 381, and 385 of the NHTSA’s Uniform Tire Quality Grading course monitoring tires that it sells at Communications Act of 1934, as Test Facility in San Angelo, Texas. San Angelo and was not charging a user amended, by whatever name that DATES: The amendment established by fee for the use of the traction skid pads instrument may be designated, all this final rule will become effective on at that facility, contrary to the applicants shall certify that neither the September 1, 1995. requirements of Office of Management 39270 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations and Budget (OMB) Circular A–25, not acting in a sovereign capacity in a ‘‘daily’’ basis. STL recommended that which establishes Federal policy making the San Angelo facility available the fee instead be imposed on a ‘‘per regarding fees assessed for Government for traction tests, and that it may set’’ basis. Because inefficiencies may services and for the sale or use of accordingly charge a market rate for result in some users taking longer than Government goods or resources. To those services, as provided in OMB others in performing each ‘‘set,’’ NHTSA address these deficiencies, the NPRM Circular A–25. This listing was not has concluded that it would be more proposed to establish $379.00 as the fee intended to suggest that all of the named reasonable for the fee to be calculated at for each course monitoring tire that facilities are well suited to meet the an hourly rate. The UTQG facility at San NHTSA sells, and to assess a user grade testing criteria of the UTQG Angelo is open each day for eight and charge of $288 per day for the use of the standards. The capability of any of these one-half hours, from 7:30 am to 4:00 traction skid pads at San Angelo. The facilities to meet those criteria is a pm. Based on a daily rate of $288.00, the NPRM included calculations showing matter of objective analysis that does hourly rate would be $34.00. NHTSA is these amounts to be the minimum not turn on whether the facility adopting this hourly rate as the user fee necessary for NHTSA to recover the predated NHTSA’s construction of for the traction skid pads at San Angelo. direct and indirect costs that it incurs in traction skid pads at San Angelo. Fees will be assessed at this hourly rate furnishing these goods and services. STL’s contention that NHTSA incurs for each hour and for each fraction of a Two comments were submitted in little if any additional costs in making hour that the traction skid pads are response to the NPRM. The first of these the traction skid pads at San Angelo used. was from Standards Testing Labs (STL) available for commercial use is A second comment was submitted in of Massillon, Ohio. STL challenged the erroneous. Any use of the facility response to the NPRM, by the Rubber statement in the NPRM that contributes to the deterioration of the Manufacturers Association (RMA), on manufacturers are not restricted to the skid pad surfaces, and reduces the behalf of U.S. tire manufacturers. The use of the traction skid pads at NHTSA’s service life of monitoring and RMA took exception to the proposed facility in San Angelo, and may instead maintenance support equipment. Even charge of $379.00 for each course use those at any commercial facility. if this were not the case, NHTSA would monitoring tire that NHTSA sells, on the STL contended that the list of still be obligated to impose a user fee for basis that manufacturers are obliged to commercial facilities provided in the the use of the traction skid pads. As purchase these tires from a single NPRM included ones that were noted in the NPRM, OMB Circular A– source—the Federal government—and abandoned and others that are ill suited 25 expresses the general policy that ‘‘[a] that such a circumstance can lead to to meet the grade testing criteria of the user charge . . . will be assessed against what the RMA characterized as UTQG standards. STL further contended each identifiable recipient for special excessive ‘‘monopoly-type’’ pricing. The that the statement regarding the benefits derived from Federal activities RMA acknowledged that the availability of commercial facilities is beyond those received by the general government must cover its costs in undermined by the fact that these public.’’ The OIG cited this policy in its setting the purchase price for course facilities were already in existence audit report findings that NHTSA’s monitoring tires, but requested that when NHTSA constructed traction skid failure to assess a fee for the use of the NHTSA devise a plan for controlling pads at San Angelo, and that the agency traction skid pads was contrary to the and reducing overhead costs to keep the has since replaced the pads at least once requirements of OMB Circular A–25. program efficient for tire manufacturers in their original location, and then The agency proposed a user fee for the and effective for U.S. taxpayers. relocated the pads to an oval track with NHTSA proposed a charge of $379.00 traction skid pads at San Angelo in all new asphalt and concrete surfaces. In for each course monitoring tire, which order to correct this deficiency. STL’s opinion, these actions were taken was derived by performing the As noted in the NPRM, NHTSA so that a facility meeting the following calculation for the 700 course proposed a fee of $288.00 per day for requirements of the UTQG standards monitoring tires that are purchased the use of the traction skid pads at San would be available. annually by the agency: STL further contended that because Angelo by performing the following calculation, based on an equivalent of Purchase price of course mon- NHTSA built and must maintain itoring tires ...... $175,000 traction skid pads at San Angelo in 360 days of industry use in 1993: General facility costs relating order to test assigned grades for traction Skid pad calibration expenses .... $6,210 to tires ...... 3,400 compliance purposes, the agency incurs General facility costs relating to Warehouse storage fees ...... 24,000 little if any additional costs in making skid pads ...... 7,140 Salaries relating to tires ...... 29,825 Depreciable items (skid system, the facility available for grade Testing fees to establish base water truck, air compressor, course wear rate for tires ..... 32,800 assignment purposes. STL estimated skid track, tractor sweeper, that the proposed fee for the traction equipment, buildings) ...... 65,904 Total ...... 265,025 skid pads will increase user costs by Salaries relating to skid pads ...... 24,375 Number of tires purchased= 70%, and will produce a decrease in the 700 volume of testing. If costs are to be Total ...... 103,629 $265,025/700 = $378.61 cost shared, STL stated it would be more $103,629/360 days industry use per tire. = equitable for the user fee to be imposed $287.86 cost per day. Two-thirds of the $379.00 proposed on a ‘‘per set’’ rather than a ‘‘daily’’ Since NHTSA recognizes that some charge is attributable to NHTSA’s basis, since testing for any given day is users may not need a full day to conduct acquisition cost of $250.00 for each tire. sometimes aborted through no fault of traction testing, and that some tests may That price, which is set by the tire’s the tester, due primarily to changes in have to be aborted for reasons beyond manufacturer, is a matter beyond the the weather or to pad instability. the user’s control, such as weather government’s control. An additional In response to the first issue raised by conditions or pad instability, the agency $45.00 is attributable to the testing that STL, NHTSA notes that it identified agrees with STL’s contention that it NHTSA must perform to establish the commercial facilities with traction skid would be more equitable for the user fee base course wear rate for these tires. pads in the NPRM to support the to be imposed on something other than Warehousing expenses result in an agency’s position that the government is Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39271 additional charge of $34.00 for each tire. across a manufacturer’s entire Authority: 49 U.S.C. 322, 30111, and The only component of the proposed production, the amendment should 30123; delegation of authority at 49 CFR 1.50. charge attributable to overhead expenses have a negligible cost impact on 2. A new Appendix D is added to is the $50.00 that covers general facility vehicles and tires. For these reasons, § 575.104, to read as follows: costs and salaries relating to the testing, vehicle manufacturers, small maintenance, and sale of the tires. In businesses, small organizations, and § 575.104 Uniform tire quality grading order to control these costs, NHTSA small governmental units that purchase standards. uses a minimal staff and relies motor vehicles should not be * * * * * extensively on electronic mail in significantly affected by these user fees. Appendix D—User Fees processing orders for course monitoring 3. Executive Order 12612 (Federalism) 1. Course Monitoring Tires: A fee of tires. The $50.00 overhead expense $379.00 will be assessed for each course represents thirteen percent of the sale This action has been analyzed in accordance with the principles and monitoring tire purchased from NHTSA at price of each tire, an amount that Goodfellow Air Force Base, San Angelo, appears quite reasonable, particularly criteria contained in Executive Order Texas This fee is based upon the direct and when compared to overhead charges in 12612, and it has been determined that indirect costs attributable to: (a) The the range of 110 to 150 percent that are this rule does not have sufficient purchase of course monitoring tires by applied within the tire industry. Federalism implications to warrant NHTSA, (b) a pro rata allocation of salaries Although it recognizes that it is the only preparation of a Federalism Assessment. and general facility costs associated with source for the purchase of these tires, as No State laws will be affected. maintenance of the tires, (c) warehouse storage fees for the tires, and (d) testing fees a government agency, NHTSA is in no 4. National Environmental Policy Act paid by NHTSA to establish the base course position to take advantage of this The agency has considered the wear rate for the tires. situation by charging what the RMA environmental implications of this rule 2. Use of Government Traction Skid Pads: characterizes as ‘‘monopoly’’ rates. If it in accordance with the National A fee of $34.00 will be assessed for each recovered more than its actual costs in Environmental Policy Act of 1969 and hour, or fraction thereof, that the traction the sale of course monitoring tires, skid pads at Goodfellow Air Force Base, San determined that it will not significantly Angelo, Texas are used. This fee is based NHTSA would be in violation of a law affect the human environment. that prohibits government agencies from upon the direct and indirect costs augmenting the funds that they are 5. Paperwork Reduction Act attributable to: (a) depreciation on facilities and equipment comprising or used in appropriated by Congress. In view of In accordance with the Paperwork conjunction with the traction skid pads (i.e., these circumstances, NHTSA is Reduction Act of 1980, P.L. 96–511, the skid system, water truck, air compressor, skid adopting the proposed charge of $379.00 agency notes that there are no track, tractor sweeper, equipment, buildings), as the fee for the course monitoring tires information collection requirements (b) the calibration of the traction skid pads, that it sells. associated with this rulemaking action. and (c) a pro rata allocation of salaries and general facility costs associated with Rulemaking Analyses and Notices 6. Civil Justice Reform maintenance of the traction skid pads. 1. Executive Order 12866 (Federal This rule does not have any 3. Fee payments shall be by check, draft, Regulatory Planning and Review) and retroactive effect. Under section 103(d) money order, or Electronic Funds Transfer System made payable to the Treasurer of the DOT Regulatory Policies and Procedures of the National Traffic and Motor United States. This rulemaking action was not Vehicle Safety Act (49 U.S.C. 30111), 4. The fees set forth in this Appendix reviewed under E.O. 12866. NHTSA has whenever a Federal motor vehicle safety continue in effect until adjusted by the analyzed this rulemaking action and standard is in effect, a state may not Administrator of NHTSA. The Administrator determined that it is not ‘‘significant’’ adopt or maintain a safety standard reviews the fees set forth in this Appendix within the meaning of the Department applicable to the same aspect of and, if appropriate, adjusts them by rule at least every 2 years. of Transportation’s regulatory policies performance which is not identical to and procedures. the Federal standard. Section 105 of the Issued on: July 27, 1995. Act (49 U.S.C. 30161) sets forth a Ricardo Martinez, 2. Regulatory Flexibility Act procedure for judicial review of final Administrator. In accordance with the Regulatory rules establishing, amending or revoking [FR Doc. 95–19018 Filed 8–1–95; 8:45 am] Flexibility Act, NHTSA has evaluated Federal motor vehicle safety standards. BILLING CODE 4910±59±P the effects of this action on small That section does not require entities. Based upon this evaluation, I submission of a petition for certify that the amendment resulting reconsideration or other administrative DEPARTMENT OF COMMERCE from this rulemaking will not have a proceedings before parties may file suit significant economic impact on a in court. National Oceanic and Atmospheric substantial number of small entities. List of Subjects in 49 CFR Part 575 Administration Accordingly, the agency has not Consumer protection, Labeling, Motor prepared a regulatory flexibility 50 CFR Parts 210, 216, 250, 270, and vehicle safety, Motor vehicles, Rubber analysis. 604 and rubber products, Tires. The agency believes that motor [Docket No. 950718182±5182±01; vehicle and tire manufacturers and tire In consideration of the foregoing, I.D. 070695B] brand owners typically do not qualify as § 575.104, Uniform tire quality grading small entities. This amendment may standards, in Title 49 of the Code of RIN 0648±AI08 Federal Regulations at Part 575, is affect small businesses, small Removal of Regulations organizations, and small governmental amended as follows: AGENCY: units to the extent that these entities PART 575Ð[AMENDED] National Marine Fisheries purchase vehicles and tires. However, Service (NMFS), National Oceanic and because the user fees established 1. The authority citation for Part 575 Atmospheric Administration (NOAA), through this amendment can be spread will continue to read as follows: Commerce. 39272 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations ACTION: Final rule. moratorium pursuant to section are applicable to the development of 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)). fishery management plans. The SUMMARY: NMFS amends the Code of On March 5, 1975 (40 FR 10183), information in part 604 is readily Federal Regulations (CFR) to remove NMFS issued rules of practice and available to the public elsewhere, and regulations that are no longer needed. procedure for all hearings conducted its maintenance in part 604 is not This action is consistent with the pursuant to section 103(d). Subpart G of needed. Therefore, part 604 is being President’s Regulatory Reform Initiative. part 216 contains these rules. Since that removed. EFFECTIVE DATE: time, MMPA 103(d) hearings have been August 2, 1995. Classification FOR FURTHER INFORMATION CONTACT: held for only six rulemaking George H. Darcy, NMFS, 301/713–2344. proceedings. As a result of amendments Because this rule only removes to the MMPA in 1984, 1991, and 1994, regulations that are no longer necessary, SUPPLEMENTARY INFORMATION: it is unlikely that section 103(d) no useful purpose would be served by On March 4, 1995, as part of the hearings will be conducted in the providing prior notice and opportunity President’s Regulatory Reform Initiative, foreseeable future. If section 103(d) for public comment on this rule. the President directed agencies to rules of practice and procedure are Accordingly, under 5 U.S.C. 553(b)(B), conduct a page-by-page review of all needed in the future, NMFS will the AA, for good cause, finds that it is regulations and eliminate or revise those provide parties and the presiding unnecessary to provide prior notice and that are outdated or otherwise in need Administrative Law Judge with an opportunity for public comment for of reform. After conducting a review of proposed guidance for conducting the this rule. Also, because this rule only 50 CFR parts 210, 216 (subparts G and proceeding. As part of the pre-hearing removes regulations that are no longer H), 250, 270, and 604, it was determined conference, the participants will needed, the AA, for good cause, finds that they were not needed and could be determine the process for conducting that no useful purpose would be served removed. the hearing. Subpart H of part 216 by delaying the rule’s effective date for 50 CFR Part 210 contains only a reference note that is no 30 days. Therefore, this rule is made longer needed. Because part 216 effective upon publication. Part 210 contains regulations that subparts G and H are no longer This final rule has been determined to were promulgated under the North necessary, they are being removed. be not significant for the purposes of Pacific Fisheries Act of 1954, which E.O. 12866. implemented the International 50 CFR Part 250 Convention for the High Seas Fisheries Part 250 of title 50 CFR contains List of Subjects of the North Pacific Ocean. After that regulations that implemented section 4 50 CFR Part 210 convention was replaced by the of the Fish and Wildlife Act of 1956 (16 Fisheries. Convention for the Conservation of U.S.C. 742c), which established a Anadromous Stocks in the North Pacific Fisheries Loan Fund (Fund). Under that 50 CFR Part 216 Ocean, the 1954 statute was repealed by Act, the Fund ceased to exist on Public Law 102–567. Thus, part 210 is Administrative Practice and September 30, 1986, and any balance procedure, Imports, Indians, Marine without statutory basis and is being remaining in the Fund was transferred removed. Mammals, Penalties, Reporting and to the Treasury as miscellaneous recordkeeping requirements, 50 CFR Part 216, Subparts G and H receipts. Thus, part 250 is no longer Transportation. needed and is being removed. Sections 101(a)(2), 101(a)(3)(A), and 50 CFR Part 250 101(b) of the Marine Mammal Protection 50 CFR Part 270 Fisheries, Fishing vessels, Loan Act (MMPA) (16 U.S.C. 1371(a)(2), Part 270 of title 50 CFR governs the programs-business, Reporting and 1371(a)(3)(A), and 1371(b)) authorize establishment and conduct of Fish and recordkeeping requirements. the Assistant Administrator for Seafood Promotional Councils Fisheries, NOAA (AA) to (1) issue (Councils) under the authority of the 50 CFR Part 270 regulations governing the taking of Fish and Seafood Promotion Act of Administrative practice and marine mammals incidental to 1986. That Act authorized the procedure, Fisheries, Reporting and commercial fishing operations; (2) establishment of a National Council to recordkeeping requirements, Seafood. waive section 101’s moratorium on the carry out generic marketing programs, taking and importing of marine including consumer education and 50 CFR Part 604 mammals under the AA’s jurisdiction, research. Congress funded the National Administrative practice and and adopt regulations with respect to Council, but did not fund the Regional procedure, Fisheries, Fishing. the taking and importing of such Councils. Funding for the National Dated: July 26, 1995. mammals; and (3) prescribe regulations Council expired in fiscal year 1991; no governing the taking of depleted marine Regional Councils have been established Richard H. Schaefer, mammals by any Indian, Aleut, or by the industry, and NMFS is unaware Acting Assistant Administrator for Fisheries, Eskimo, respectively. In prescribing of any plans to do so. Therefore, part National Marine Fisheries Service. regulations to carry out the provisions of 270 is no longer needed and is being For the reasons set out in the these sections, section 101 requires that removed. preamble, 50 CFR part 210; part 216, the procedures of section 103 (16 U.S.C. subparts G (consisting of §§ 216.70– 1373) be followed. Section 103(d) 50 CFR Part 604 216.90) and H (Note); and parts 250, requires that regulations be made on the Part 604 of title 50 CFR contains 270, and 604 are removed; and record after opportunity for an agency abbreviated summaries of laws, other subchapter H is vacated. hearing on such regulations and on any than the Magnuson Fishery [FR Doc. 95–18897 Filed 8–1–95; 8:45 am] determination by the AA to waive the Conservation and Management Act, that BILLING CODE 3510±22±F 39273 Proposed Rules Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 This section of the FEDERAL REGISTER reasonable time thereafter. Thus, 107(13) (of event of a loss each participant shall contains notices to the public of the proposed the Federal Credit Union Act, 12 U.S.C. share in the loss equal to its interest in issuance of rules and regulations. The § 1757(13)) was adopted to allow Federal the participation loan; (4) provide for purpose of these notices is to give interested credit unions to sell certain loans subsequent the distribution of payments of to origination * * * persons an opportunity to participate in the principal to each participant rule making prior to the adoption of the final 43 FR 51610 (November 6, 1978). rules. proportionate to its interest in the However, the Board amended its participation loan; (5) provide for loan opinion in 1981 as follows: status reports to each participant; and NATIONAL CREDIT UNION The participation regulation applies where (6) state the terms or conditions under ADMINISTRATION a third party funnels funds into the credit which the agreement may be terminated union with the intent of actually or modified. 12 CFR Part 701 participating in making the loan, for example Under the proposal, the ‘‘originating where the participant will assist in preparing lender’’ is required to use the same Organization and Operations of the loan documentation and the participant’s underwriting standards it uses for loans Federal Credit Unions funds will actually be disbursed at that are not being sold as participation origination. The participation regulation does AGENCY: National Credit Union not apply when an organization merely loans unless there is a participation Administration (NCUA). arranges to purchase loans subsequently agreement in place prior to the originated by the credit union. disbursement of the loan. If a ACTION: Proposed rule. 49 FR 31660 (June 17, 1981). participation agreement is in place prior SUMMARY: The NCUA Board (Board) is In 1991, the Board considered but to disbursement, all of the participating committed to providing federal credit later rejected changes which would credit unions will have agreed on unions (FCUs) greater flexibility in have amended the definition of underwriting standards. The originating pursuing lending opportunities that are ‘‘participation loan’’ and deleted the lender would reflect those standards consistent with principles of safety and requirement that the loan participation either in its loan policies or the soundness. The NCUA Board is agreement precede loan disbursement. participation agreement. Also, the therefore proposing to amend its The Board was concerned that: proposal requires the purchaser of a regulations on loan participation to participation interest to have a FCUs may have a decreased interest in broaden loan participation authority by participation policy in place prior to properly underwriting a loan if they know entering into a participation agreement. removing the requirement that the they can later reduce their risk by selling participation agreement precede loan participation interests in it. Alternatively, Current Section 701.22(b)(2), as well disbursement. FCUs interested in obtaining a participation as the proposed rule, allow either the board of directors or the investment DATES: Comments must be postmarked after the loan is made may not properly committee to execute the participation or posted on the NCUA electronic investigate the loan and may instead rely on the original participants to have properly agreement. In recognition of the far bulletin board by October 2, 1995. underwritten the loan. FCUs may jump in reaching impact a participation ADDRESSES: Send comments to Becky without a proper due diligence review. agreement has on an FCU’s lending, Baker, Secretary of the Board, National 56 FR 15034, 15035 (April 15, 1991). investment and business strategies, the Credit Union Administration, 1775 The Board now believes that the Board is interested in receiving Duke Street, Alexandria, Virginia concerns it expressed in 1991 can be comments on whether this authority 22314–3428. addressed through the FCUs exercise of should be solely with the board of FOR FURTHER INFORMATION CONTACT: due diligence before entering into directors. Mary F. Rupp, Staff Attorney, Office of participation agreements as required in With these safeguards in place, it is General Counsel, National Credit Union this proposal. The FCU is still required contemplated that eliminating the Administration, 1775 Duke Street, to have a master participation ‘‘prior to disbursement’’ restriction may Alexandria, Virginia 22314–3428 or agreement. The proposal does not assist FCUs with their liquidity telephone: (703) 518–6540. specify at what point the agreement management and will also provide FCUs SUPPLEMENTARY INFORMATION: must be executed. The Board invites with a means of reducing risk. By comment on whether the rule should deleting this requirement, the Board A. Background require that the agreement (without recognizes that there may be some NCUA’s current ‘‘participation loan’’ identifying the specific loans) must be overlap between Sections 701.22 and regulation requires the participation in place prior to the disbursement of the 701.23 of NCUA’s Rules and agreement to precede any disbursement loan if the loan is intended for Regulations; the eligible obligations of the loan proceeds. When Section participation, and prior to the sale of the rule. This is a result of the interplay of 701.22 of NCUA’s Rules and loan if the loan was originally made to Sections 107(5)(E) and 107(13) of the Regulations was originally issued, the hold in portfolio. FCU Act. Both of these sections Board discussed the term Although the regulation does not authorize the purchase and sale of a ‘‘participation’’ as follows: require that specific provisions be partial interest in certain loans. A loan In granting Federal credit unions the power included in the master agreement, purchase or sale will be viewed as to participate in making loans to members, prudence dictates that at a minimum the permissible provided it is authorized Congress was using the term ‘‘participation’’ agreement shall: (1) Identify types of under either section. to mean arrangements made prior to or at the loans; (2) state servicing and collection The Board welcomes comment on this time of origination and carried out within a requirements; (3) provide that in the proposal. 39274 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules B. Section-by-Section Analysis List of Subjects in 12 CFR Part 701 prior to entering into a participation agreement; Proposed Section 701.22(a)(1) Credit, Credit unions, Reporting and recordkeeping requirements. * * * * * Deletes the requirement that the [FR Doc. 95–18892 Filed 8–1–95; 8:45 am] By the National Credit Union participation agreement precede BILLING CODE 7535±01±P disbursement of the loan but retains the Administration Board on July 27, 1995. requirement of a participation Becky Baker, agreement and that the participation be Secretary of the Board. 12 CFR Part 741 made with ‘‘eligible organizations.’’ Accordingly, NCUA proposes to Requirements for Insurance Proposed Section 701.22(b)(2) amend 12 CFR chapter VII as follows: AGENCY: National Credit Union The phrase ‘‘prior to final PART 701ÐORGANIZATION AND Administration (NCUA). disbursement’’ has been eliminated. OPERATION OF FEDERAL CREDIT ACTION: Notice of proposed rulemaking. Proposed Section 701.22(c)(4) UNIONS SUMMARY: The proposed rule will A phrase has been added to the 1. The authority citation for part 701 consolidate all current regulations and ‘‘originating lender’’ approval provision continues to read as follows: requirements that apply to federally requiring the FCU to use the same Authority: 12 U.S.C. 1752(5), 1755, 1756, insured state-chartered credit unions underwriting standard for participation 1757, 1759, 1761a, 1761b, 1766, 1767, 1782, (FISCUs) in one place, part 741, loans as those used for loans not being 1784, 1787, 1789 and Pub. L. 101–73. Section Requirements for Insurance. The sold as participation loans unless there 701.6 is also authorized by 31 U.S.C. 3717. proposal will not impose any new is a participation agreement in place Section 701.31 is also authorized by 15 requirements on FISCUs. prior to the disbursement of the loan. U.S.C. 1601, et seq., 42 U.S.C. 1981 and 42 U.S.C. 3601–3610. DATES: Comments must be postmarked An additional sentence has also been or posted on the NCUA electronic added, requiring that, where a Section 701.35 is also authorized by 12 U.S.C. 4311–4312. bulletin board by October 2, 1995. participation agreement is in place prior ADDRESSES: Send comments to Becky to disbursement, either the originating 2. Section 701.22 is amended by Baker, Secretary of the Board, National credit union’s loan policies or the revising paragraphs (a)(1), (b)(2), (c)(4) Credit Union Administration Board, participation agreement addresses and (d)(1) to read as follows: participation loan underwriting 1775 Duke Street, Alexandria, Virginia standards. § 701.22 Loan participation. 22314–3428. (a) * * * FOR FURTHER INFORMATION CONTACT: Proposed Section 701.22(d)(1) Linda Groth, State Program Officer, (1) Participation loan is a loan where Office of Examination and Insurance, at A phrase has been added to the ‘‘non one or more eligible organizations the above address or telephone (703) originating lender’’ approval provision participates pursuant to a written 518–6360 or Mary Rupp, Staff Attorney, requiring the FCU to have a agreement with the originating lender. Office of General Counsel, at the above participation policy in place prior to * * * * * entering into a participation agreement. address or telephone (703) 518–6540. (b) * * * SUPPLEMENTARY INFORMATION: C. Regulatory Procedures (2) A written master participation Request for Comments Regulatory Flexibility Act agreement shall be properly executed, acted upon by the Federal credit union’s The NCUA Board seeks comments on The Regulatory Flexibility Act board of directors or the investment the proposed changes to part 741 of the requires the NCUA to prepare an committee and retained in the Federal NCUA Rules and Regulations. analysis to describe any significant credit union’s office. The agreement economic impact any regulation may shall include provisions which identify Background have on a potential number of small the participation loan or loans; and Part 741 applies to all credit unions credit unions (primarily those under $1 * * * * * whose accounts are insured by the million in assets). The NCUA Board has (c) * * * National Credit Union Share Insurance determined and certifies under the Fund (NCUSIF). It applies to federal authority granted in 5 U.S.C. 605(b) that (4) Require the credit committee or credit unions (FCUs), FISCUs and credit the proposed rule, if adopted, will not loan officer to use the same unions making application for insurance have a significant economic impact on underwriting standards for participation of accounts. It prescribes requirements a substantial number of small credit loans used for loans that are not being for obtaining and maintaining federal unions. Accordingly, the NCUA Board sold in a participation agreement unless insurance and for the payment of has determined that a Regulatory there is a participation agreement in insurance premiums and an insurance Flexibility Analysis is not required. place prior to the disbursement of the capitalization deposit. loan. Where a participation agreement is Paperwork Reduction Act Part 741 also serves as a reference for in place prior to disbursement, either FISCUs in determining which NCUA These amendments do not change the the credit union’s loan policies or the rules apply to them. It is NCUA’s paperwork requirements. participation agreement shall address general practice, when a regulation for any variance from non-participation Executive Order 12612 FCUs also applies to FISCUs, to refer to loan underwriting standards. the regulation in part 741. This amendment does not affect state (d) * * * Some regulations that apply to regulation of credit unions. It (1) Participate only in loans it is FISCUs, however, are not currently implements provisions of the Federal empowered to grant, having a included in part 741. Additionally, the Credit Union Act applying only to participation policy in place which sets Agreement for Insurance of Accounts, federal credit unions. forth the loan underwriting standards which outlines conditions for state- Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39275 chartered credit unions obtaining and continuing insurability’’ after wording to the Federal Credit Union maintaining federal insurance, contains ‘‘insurance’’ to clarify that the criteria Bylaws. requirements that are not included in listed in this section apply in order to Proposed Sections 741.206 Through part 741. This proposal corrects those maintain, as well as to obtain, federal 741.218 shortcomings by addressing, in part 741, insurance. all regulations and requirements that Proposed § 741.3(a)(3) incorporates a As described below, these sections apply to FISCUs. This revision will aid requirement imposed on FISCUs by the refer to other existing regulations that FISCUs by simplifying the process of Agreement for Insurance of Accounts. apply to FISCUs and are not currently determining which regulations they An Investment Valuation Reserve addressed in part 741. must follow. The revision does not Account must be established for those Proposed Section 741.206 impose any additional requirements or investments owned by FISCUs that do This new section addresses NCUA’s new burdens on FISCUs. not conform to NCUA’s investment regulation concerning Corporate Credit Additionally, the proposed revision regulation for federal credit unions (12 Unions (part 704). reorganizes part 741 into subparts A and CFR part 703). The reserve must equal B. Subpart A contains requirements that the net excess of book value over Proposed Section 741.207 apply to all insured credit unions and current market value. If the market This new section addresses the are not codified elsewhere in NCUA’s value cannot be determined, a reserve Community Development Revolving regulations. Subpart B contains equal to the full book value must be Loan Program for Credit Unions and requirements that are set forth in established. Current § 741.9(a)(3) Designation as a Low Income Credit various other parts of NCUA’s requires a special reserve account, but Union (part 705 and § 701.32(d)). regulations affecting FCUs and that are, does not address the market value issue. by incorporation in part 741, applicable The requirement that state-chartered Proposed Section 741.208 to FISCUs as well. corporate credit unions comply with This new section provides that Section-by-Section Analysis part 704 has not been carried over from FISCUs choosing to merge or voluntarily current § 741.9(a)(3) to proposed terminate or convert their insured status Proposed Section 741.0 § 741.3(a)(3), because it is contained in must meet the requirements of Section This section has been modified to proposed § 741.3(b)(3). 206 of the FCU Act (12 U.S.C. 1786) and include an explanation of new subpart Similarly, the requirement that parts 708a and 708b of the NCUA Rules A which contains substantive management agree to comply with ‘‘full and Regulations. and fair disclosure’’ has not been carried requirements that are not codified Proposed Section 741.209 elsewhere in this chapter and new over from current § 741.9(c) to proposed subpart B which lists additional § 741.3(c), because it is contained in This new section addresses regulations, set forth elsewhere in this proposed § 741.3(a)(1). Management Official Interlocks (part 711). chapter as applying to federal credit Proposed Section 741.10 unions, that also apply to FISCUs. Proposed Section 741.210 This section is new and incorporates Subpart A requirements currently imposed on This new section addresses the Central Liquidity Facility (part 725). Proposed Sections 741.1, 741.2, 741.4, FISCUs by the Agreement for Insurance 741.5, 741.6, 741.7, 741.8 and 741.9. of Accounts. It affects those FISCUs Proposed Section 741.211 permitted by state law to accept In the current part 741, these sections This new section addresses uninsured nonmember shares or appear as §§ 741.7, 741.5, 741.11, Advertising (part 740). deposits. The FISCU is required to 741.10, 741.13, 741.12, 741.4 and identify these nonmember accounts as Proposed Section 741.212 741.14, respectively. Except for the nonmember shares or deposits on all renumbering, the sections are This new section addresses Share statements or reports required by the unchanged. Only technical changes are Insurance (part 745). NCUA Board and advise, in writing, any made to these sections. They are as nonmember share and deposit holders Proposed Section 741.213 follows: The sections are renumbered. that their accounts are not insured by Section 741.1 is revised to clarify that This new section addresses NCUSIF. This would not apply to low pursuant to NCUA’s examination Administrative Actions, Adjudicative income nonmember deposits that are authority, records and documents must Hearings, Rules of Practice and insured pursuant to § 701.32. be made available to the NCUA Board Procedure, and Investigations (part 747). or its representative. The last fifteen Subpart B Proposed Section 741.214 words of section 741.2 are dropped Proposed Sections 741.201, 741.203, This new section addresses the Report because they are redundant. Section 741.204 and 741.205 of Crime or Catastrophic Act and Bank 741.4(b)(3) is revised to clarify that the Secrecy Act compliance (part 748). NCUA Board may temporarily establish These proposed sections appear in the a normal operating level for the NCUSIF current rule as §§ 741.1, 741.3, 741.6 Proposed Section 741.215 of less than 1.3%. Section 741.4(d) is and 741.8 respectively. Except for This new section addresses the revised to clarify that the annual renumbering, these sections remain Records Preservation Program (part insurance premium may be waived by unchanged. 749). the NCUA Board. Proposed Section 741.202 Proposed Section 741.216 Proposed Section 741.3 This section appears in the current This new section addresses Flood This proposed section on criteria for rule as § 741.2. It is changed for Insurance (part 760). insurance is a restatement of the clarification purposes only. Proposed existing § 741.9, with some minor § 741.202(b) substitutes the term Proposed Section 741.217 changes. The introduction has been ‘‘financial officer’’ for ‘‘treasurer’’. The This new section addresses Truth in amended by adding the phrase, ‘‘and in purpose of the change is to conform the Savings (part 707). 39276 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Proposed Section 741.218 741.8 Purchase of assets and assumption of Subpart AÐRegulations That Apply To liabilities. This new section addresses Both Federal Credit Unions and 741.9 Uninsured membership shares. Federally Insured State-Chartered Involuntary Liquidation and Creditor 741.10 Disclosure of share insurance. Claims (part 709). Credit Unions and That Are Not Subpart B—Regulations Codified Elsewhere Codified Elsewhere in NCUA's Regulatory Procedures in NCUA’s Regulations as Applying to Regulations Regulatory Flexibility Act Federal Credit Unions That Also Apply to Federally Insured State-Chartered Credit § 741.1 Examination. The Regulatory Flexibility Act Unions As provided in Sections 201 and 204 requires NCUA to prepare an analysis to 741.201 Minimum fidelity bond of the Act (12 U.S.C. 1781 and 1784), describe the significant economic requirements. the NCUA Board is authorized to impact any proposed regulation may 741.202 Audit and verification examine any insured credit union or have on a substantial number of small requirements. any credit union making application for credit unions (primarily those under $1 741.203 Minimum loan policy insurance of its accounts. Such million in assets). This proposal is a requirements. examination may require access to all compilation of existing regulations and 741.204 Maximum public unit and records, reports, contracts to which the requirements already in place for nonmember accounts, and low-income credit union is a party, and information FISCUs. It does not add any additional designation. concerning the affairs of the credit requirements or burden. Accordingly, 741.205 Reporting requirements for credit union. Upon request, such unions that are newly chartered or in the NCUA Board has determined and documentation must be provided to the certifies under the authority granted in troubled condition. 741.206 Corporate credit unions. NCUA Board or its representative. Any 5 U.S.C. 605(b) that the proposed rule, 741.207 Community development revolving credit union which makes application if adopted, will not have a significant loan program for credit unions. for insurance will be required to pay the economic impact on a significant 741.208 Mergers of Federally insured credit cost of such examination and number of small credit unions and that unions: voluntary termination or processing. To the maximum extent a Regulatory Flexibility Act analysis is conversion of insured status. feasible, the NCUA Board will utilize not required. 741.209 Management official interlocks. examinations conducted by state Paperwork Reduction Act 741.210 Central Liquidity Facility. regulatory agencies. 741.211 Advertising. The proposed rule does not impose 741.212 Share insurance. § 741.2 Maximum borrowing authority. any new paperwork requirements. 741.213 Administrative actions, Any credit union which makes adjudicative hearings, rules of practice Executive Order 12612 application for insurance of its accounts and procedure. pursuant to Title II of the Act, or any The proposed rule does not make any 741.214 Report of Crime or Catastrophic insured credit union, must not borrow, substantive changes. Therefore, no new Act and Bank Secrecy Act compliance. from any source, an aggregate amount in analysis of part 741’s effect on state 741.215 Records preservation program. excess of 50 per centum of its paid-in interests is required. 741.216 Flood insurance. and unimpaired capital and surplus 741.217 Truth in savings. (shares and undivided earnings, plus List of Subjects in 12 CFR Part 741 741.218 Involuntary liquidation and net income or minus net loss). Bank deposit insurance, Credit unions creditor claims. and Reporting and recordkeeping Authority: 12 U.S.C. 1757, 1766, and 1781– § 741.3 Criteria. requirements. 1790. Section 741.4 is also authorized by 31 In determining the insurability of a By the National Credit Union U.S.C. 3717. credit union which makes application Administration Board on July 27, 1995. § 741.0 Scope. for insurance and in continuing the Becky Baker, insurability of its accounts pursuant to Secretary of the Board. The provisions of this part apply to Title II of the Act, the following criteria federal credit unions, federally insured shall be applied: Accordingly, NCUA proposes to revise part state-chartered credit unions, and credit 741 as follows: (a) Adequacy of reserves. unions making application for insurance (1) General rule. State-chartered credit PART 741ÐREQUIREMENTS FOR of accounts pursuant to Title II of the unions must meet, at a minimum, the INSURANCE Act, unless the context of a provision statutory reserve and full and fair indicates its application is otherwise disclosure requirements imposed on Sec. limited. This part prescribes various federal credit unions by Section 116 of 741.0 Scope. requirements for obtaining and the Act and part 702 of this chapter. Subpart A—Regulations that Apply to Both maintaining federal insurance and the (2) Charges against reserves. State- Federal Credit Unions and Federally Insured payment of insurance premiums and chartered credit unions may charge State-Chartered Credit Unions and That are capitalization deposit. Subpart A of this losses, including losses other than loan Not Codified Elsewhere in NCUA’s part contains substantive requirements losses, against the statutory reserve in Regulations that are not codified elsewhere in this accordance with either state law or 741.1 Examination. chapter. Subpart B of this part lists procedures established by the state 741.2 Maximum borrowing authority. additional regulations, set forth supervisory authority. However, charges 741.3 Criteria. elsewhere in this chapter as applying to for losses other than loan losses shall be 741.4 Insurance premium and one percent federal credit unions, that also apply to made only after notification to the deposit. federally insured state-chartered credit Regional Director, unless the credit 741.5 Notice of termination of excess insurance coverage. unions. As used in this part, insured union’s ratio of capital to assets is 741.6 Financial and statistical and other credit union means a credit union greater than 6 percent and the charge reports. whose accounts are insured by the reduces the ratio by no more than 1⁄2 741.7 Conversion to a state-chartered credit National Credit Union Share Insurance percent. For purposes of this section, union. Fund (NCUSIF). capital is defined as the total of the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39277 Regular Reserve, the Allowance for Loan adequate to repay the loan in the event (g) Nothing herein shall preclude the Losses, the Allowance for Investment of default; NCUA Board from imposing additional Losses, Undivided Earnings, and other (3) Investment policies which are terms or conditions pursuant to the reserves. within the provisions of applicable law insurance agreement. (3) Special reserve for nonconforming and regulations, i.e., the Act and part investments. State-chartered credit 703 of this chapter for federal credit § 741.4 Insurance premium and one unions (except state-chartered corporate unions and the laws of the state in percent deposit. credit unions) are required to establish which the credit union operates for (a) Scope. This section implements an additional special reserve for state-chartered credit unions, except the requirements of Section 202 of the investments if those credit unions are state-chartered corporate credit unions. Act (12 U.S.C. 1782) providing for permitted by their respective state laws State-chartered corporate credit unions capitalization of the NCUSIF through to make investments beyond those are permitted to make only those the maintenance of a deposit by each authorized in the Act or the NCUA investments that are in conformance insured credit union in an amount Rules and Regulations. For any with part 704 of this chapter and equaling one percent of its insured investment other than loans to members applicable state laws and regulations; shares and payment of an annual and obligations or securities expressly (4) The presence of any account or insurance premium. authorized in Title I of the Act and part security, the form of which has not been (b) Definitions. For purposes of this 703 of this chapter, as amended, state- approved by the Board, except for section: chartered credit unions (except state- accounts authorized by state law for (1) Insurance year means the period chartered corporate credit unions) are state-chartered credit unions. from January 1 through December 31; required to establish and maintain at the (c) Fitness of management. The (2) Insured shares means the total end of each accounting period and prior officers, directors, and committee amount of a credit union’s share, share to payment of any dividend, an members of the credit union must have draft and share certificate accounts, or Investment Valuation Reserve Account conducted its operations in accordance their equivalent under state law (which in an amount at least equal to the net with provisions of applicable law, may include deposit accounts), excess of book value over current regulations, its charter and bylaws. No authorized to be issued to members, market value of the investments. If the person shall serve as a director, officer, other credit unions, public units, or market value cannot be determined, an committee member, or employee of an nonmembers (where permitted under amount equal to the full book value will insured credit union who has been the Act or equivalent state law). be established. When at the end of any convicted of any criminal offense ‘‘Insured shares’’ does not include dividend period, the amount in the involving dishonesty or breach of trust, amounts in excess of insurance coverage Investment Valuation Reserve exceeds except with the written consent of the as provided in part 745 of this chapter; the difference between book value and Board. and market value, the board of directors may (d) Insurance of member accounts (3) Normal operating level means a authorize the transfer of the excess to would not otherwise involve undue risk total value of the NCUSIF equity Undivided Earnings. to the NCUSIF. The credit union must equaling 1.3 percent of the aggregate of (b) Financial condition and policies. maintain adequate fidelity bond all insured shares in insured credit The following factors are to be coverage as specified in § 741.201. Any unions as of the end of the preceding considered in determining whether the circumstances which may be unique to insurance year, or such lower value as credit union’s financial condition and the particular credit union concerned established by action of the NCUA policies are both safe and sound: shall also be considered in arriving at Board. (1) The existence of unfavorable the determination of whether or not an (c) One percent deposit. Each insured trends which may include excessive undue risk to the NCUSIF is or may be credit union shall maintain with the losses on loans (i.e., losses which present. For purposes of this section, the NCUSIF during each insurance year a exceed the regular reserve or its term ‘‘undue risk to the NCUSIF’’ is deposit in an amount equaling one equivalent [in the case of state-chartered defined as a condition which creates a percent of the total of the credit union’s credit unions] plus other irrevocable probability of loss in excess of that insured shares as of the close of the reserves established as a contingency normally found in a credit union and preceding insurance year. The deposit against losses on loans), the presence of which indicates a reasonably amount shall be adjusted annually on a special reserve accounts used foreseeable probability of the credit date to be determined by the NCUA specifically for charging off loan union becoming insolvent because of Board. balances of deceased borrowers, and an such condition, with a resultant claim (d) Premium. Unless waived by the expense ratio so high that the required against the NCUSIF. NCUA Board, each insured credit union transfers to reserves create a net (e) Powers and purposes. The credit shall pay to the NCUSIF, on a date to operating loss for the period or that the union must not perform services other be determined by the NCUA Board, an net gain after these transfers is not than those which are consistent with the insurance premium for that insurance sufficient to permit the payment of a promotion of thrift and the creation of year in an amount equaling one-twelfth nominal dividend; a source of credit for its members, of one percent of the credit union’s total (2) The existence of written lending except as otherwise permitted by law or insured shares as of the close of the policies, including adequate regulation. preceding insurance year. documentation of secured loans and the (f) Letter of disapproval. A credit (e) Redistribution of NCUSIF equity. protection of security interests by union whose application for share When the NCUSIF exceeds its normal recording, bond, insurance, or other insurance is disapproved shall receive a operating level, the NCUA Board will, at adequate means, adequate letter indicating the reasons for such least annually, make a proportionate determination of the financial capacity disapproval, a citation of the authority adjustment for insured credit unions of of borrowers and comakers for for such disapproval, and suggested the amount necessary to reduce the repayment of the loan, and adequate methods by which the applying credit NCUSIF to its normal operating level. determination of value of security on union may correct its deficiencies and Such adjustment will be in the form loans to ascertain that said security is thereby qualify for share insurance. determined by the NCUA Board and 39278 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules may include a waiver of insurance involuntary liquidation will not be § 741.6 Financial and statistical and other premiums, premium rebates, and/or entitled to a return of its deposit. Any reports. distributions from NCUSIF equity. solvent credit union that is closed due (a) Each operating insured credit (f) Forms 1304 and 1305. A certified to involuntary liquidation shall be union with assets in excess of copy of Form 1304 will be provided to entitled to a return of its deposit prior $50,000,000 shall file with the NCUA a all federally insured state-chartered to final distribution of member shares. quarterly Financial and Statistical credit unions and Form 1305 to all Any other credit union whose insurance Report on Form NCUA 5300, on or federally chartered credit unions in coverage with the NCUSIF terminates before January 22 (as of the previous connection with the computation and will be entitled to a return of the full December 31), April 22 (as of the funding of their annual premium amount of its deposit immediately after previous March 31), July 22 (as of the payment and any change in their one the final date on which any shares of the previous June 30) and October 22 (as of percent deposit. Form 1305 also credit union are insured, except that the the previous September 30) of each year. includes the annual operating fee. NCUA Board reserves the right to delay All other operating insured credit Forms 1304 and 1305 are invoices and payment by up to one year if it unions shall file with the NCUA on or are precalculated based on the credit determines that immediate payment before January 31 and on or before July union’s previous year’s insured shares. would jeopardize the financial 31 of each year a semiannual Financial The forms provide for any adjustments and Statistical Report on Form NCUA declared by the NCUA Board, resulting condition of the NCUSIF. This includes termination of insurance due to mergers 5300, as of the previous December 31 (in in a single net transfer of funds between the case of the January filing) or June 30 the credit union and the NCUA. and consolidations. A credit union that receives a return of its deposit during an (in the case of the July filing). Additional copies of each credit union’s (b) Insured credit unions shall, upon insurance year shall have the option of Form 1304 and 1305 may be obtained written notice from the NCUA Board or leaving a nominal sum on deposit with from the appropriate NCUA Regional Regional Director, file such financial or the NCUSIF until the next distribution Office. other reports in accordance with from NCUSIF equity and will thus (g) New charters. A newly-chartered instructions contained in such notice. credit union that obtains share qualify for a prorated share of the insurance coverage from the NCUSIF distribution. § 741.7 Conversion to a state-chartered during the insurance year in which it (k) Assessment of administrative fee credit union. has obtained its charter shall not be and interest for delinquent payment. Any federal credit union that required to pay an insurance premium Each federally insured credit union petitions to convert to a state-chartered for that insurance year. The credit union shall pay to the NCUA an administrative federally insured credit union is shall fund its one percent deposit on a fee, the costs of collection, and interest required to apply to the Regional date to be determined by the NCUA on any delinquent payment of its Director for continued insurance of its Board in the following insurance year, capitalization deposit or insurance accounts and meet the requirements as but shall not participate in any premium. A payment will be considered stated in the Act and this part. If the distribution from NCUSIF equity related delinquent if it is postmarked later than application for continued insurance is to the period prior to the credit union’s the date stated in the invoice provided not approved, such insurance will funding of its deposit. to the credit union. The NCUA may terminate subject to the conditions set (h) Conversion to Federal insurance. waive or abate charges or collection of forth in section 206(d) of the Act. An existing credit union that converts to interest, if circumstances warrant. insurance coverage with the NCUSIF § 741.8 Purchase of assets and during an insurance year shall (1) The administrative fee for a assumption of liabilities. immediately fund its one percent delinquent payment shall be an amount (a) Any credit union insured pursuant deposit based on the total of its shares as fixed from time to time by the NCUA to Title II of the Act must apply for and as of the close of the month prior to Board based upon the administrative receive approval from the NCUA Board conversion and shall pay a premium costs of such delinquent payments to before either purchasing or acquiring (unless waived in whole or in part for the NCUA in the preceding year. loans or assuming or receiving an all insured credit unions during that (2) The costs of collection shall be assignment of deposits, shares, or year) in an amount that is prorated to calculated as the actual hours expended liabilities from: reflect the remaining number of months by NCUA personnel multiplied by the (1) Any credit union that is not in the insurance year. The credit union average hourly cost of the salaries and insured pursuant to Title II of the Act; will be entitled to a prorated share of benefits of such personnel. (2) Any other financial-type any distribution from NCUSIF equity institution (including depository declared subsequent to the credit (3) The interest rate charged on any institutions, mortgage banks, consumer union’s conversion. delinquent payment shall be the U.S. finance companies, insurance (i) Mergers of nonfederally insured Department of the Treasury Tax and companies, loan brokers, and other loan credit unions. Where a nonfederally Loan Rate in effect on the date when the sellers or liability traders); or insured credit union merges into a payment is due as provided in 31 U.S.C. (3) Any successor in interest to any federally insured credit union, the 3717. institution identified in paragraphs (a)(1) or (a)(2) of this section. continuing federally insured credit § 741.5 Notice of termination of excess union shall immediately pay to the insurance coverage. (b) Approval is not required for: NCUSIF a prorated insurance premium (1) Purchases of student loans or real (unless waived in whole or in part for In the event of a credit union’s estate secured loans to facilitate the all federally insured credit unions), and termination of share insurance coverage packaging of a pool of loans to be sold an additional one percent deposit based other than that provided by the NCUSIF, or pledged on the secondary market upon the increase in insured shares the credit union must notify all under § 701.23(b)(1) (iii) or (iv) of this resulting from the merger. members in writing of such termination chapter or comparable state law for (j) Return of deposit. Any insolvent at least 30 days prior to the effective state-chartered credit unions, or credit union that is closed for date of termination. purchases of member loans under Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39279 § 701.23(b)(1)(i) of this chapter or (b) Corporate credit unions must (b) Obtain a low-income designation comparable state law for state-chartered comply with § 704.17 of this chapter in in order to accept nonmember accounts, credit unions; or lieu of § 701.20. other than from public units or other (2) Assumptions or receipt of credit unions, provided it has the § 741.202 Audit and verification authority to accept such accounts under deposits, shares or liabilities as rollovers requirements. or transfers of member retirement state law. The state regulator shall make (a) The supervisory committee of each accounts or in which an NCUSIF- the low-income designation with the credit union insured pursuant to Title II insured credit union perfects a security concurrence of the appropriate regional of the Act shall make or cause to be interest in connection with an extension director. The designation will be made made an audit of the credit union at of credit to any member. and reviewed by the state regulator on least once every calendar year covering the same basis as that provided in § 741.9 Uninsured membership shares. the period elapsed since the last audit. § 701.32(d) for federal credit unions. Any credit union that is insured The audit must fully meet the Removal of the designation by the state pursuant to Title II of the Act may not requirements set forth in §§ 701.12 and regulator for such credit unions shall be offer membership shares that, due to the 701.13 of this chapter. with the concurrence of NCUA. terms and conditions of the account, are (b) Each credit union which is insured pursuant to Title II of the Act shall not eligible for insurance coverage. This § 741.205 Reporting requirements for verify or cause to be verified, under credit unions that are newly chartered or in prohibition does not apply to shares that controlled conditions, all passbooks and troubled condition. are uninsured solely because the accounts with the records of the Any federally insured credit union amount is in excess of the maximum financial officer not less frequently than chartered for less than 2 years or any insurance coverage provided pursuant once every 2 years. The verification credit union defined to be in troubled to part 745 of this chapter. must fully meet the requirements set condition as set forth in § 701.14(b)(3) of § 741.10 Disclosure of share insurance. forth in §§ 701.12(e) and 701.13 of this this chapter must adhere to the Any credit union which is insured chapter. requirements stated in § 701.14(c) concerning the prior notice and NCUA pursuant to Title II of the Act and is § 741.203 Minimum loan policy permitted by state law to accept requirements. review. Federally insured state- chartered credit unions must submit nonmember shares or deposits from Any credit union which is insured required information to both the sources other than other credit unions pursuant to Title II of the Act must: appropriate NCUA Regional Director and public units (or, for low-income (a) Adhere to the requirements stated and their state supervisor. NCUA will designated credit unions, any in § 701.21(h) of this chapter concerning consult with the state supervisor before nonmembers), shall identify such member business loans, § 701.21(c)(8) of making its determination pursuant to nonmember accounts as nonmember this chapter concerning prohibited fees, § 701.14(d)(2) and (f). NCUA will notify shares or deposits on any statement or and § 701.21(d)(5) of this chapter the state supervisor of its approval/ report required by the NCUA Board for concerning nonpreferential loans. State- disapproval no later than the time that insurance purposes. Immediately after a chartered, NCUSIF-insured credit it notifies the affected individual state-chartered credit union receives unions in a given state are exempt from pursuant to § 701.14(d)(1). notice from NCUA that its member these requirements if the state accounts are federally insured, the regulatory authority for that state adopts § 741.206 Corporate credit unions. credit union shall advise any present substantially equivalent regulations as Any corporate credit union insured nonmember share and deposit holders determined by the NCUA Board. In pursuant to Title II of the Act shall by letter that their accounts are not nonexempt states, all required NCUA adhere to the requirements of part 704 insured by the NCUSIF. Also, future reviews and approvals will be handled of this chapter. nonmember share and deposit fund in coordination with the state credit holders will be so advised by letter as union supervisory authority; and § 741.207 Community development they open accounts. (b) adhere to the requirements stated revolving loan program for credit unions. in part 722 of this chapter concerning Any credit union which is insured Subpart BÐRegulations Codified appraisals. pursuant to Title II of the Act and is a Elsewhere in NCUA's Regulations as ‘‘participating credit union,’’ as defined Applying to Federal Credit Unions That § 741.204 Maximum public unit and in § 705.3 of this chapter, shall adhere Also Apply to Federally Insured State- nonmember accounts, and low-income designation. to the requirements stated in part 705 of Chartered Credit Unions this chapter. Any credit union that is insured, or § 741.201 Minimum fidelity bond that makes application for insurance, § 741.208 Mergers of federally insured requirements. pursuant to Title II of the Act must: credit unions: voluntary termination or (a) Any credit union which makes (a) Adhere to the requirements of conversion of insured status. application for insurance of its accounts § 701.32 of this chapter regarding public Any credit union which is insured pursuant to Title II of the Act must unit and nonmember accounts, pursuant to Title II of the Act and which possess the minimum fidelity bond provided it has the authority to accept merges with another credit union or non coverage stated in § 701.20 of this such accounts. Requests by federally credit union institution, and any state- chapter in order for its application for insured state-chartered credit unions for chartered credit union which such insurance to be approved and for an exemption from the limitation of voluntarily terminates its status as a such insurance coverage to continue. A § 701.32 will be made and reviewed on federally-insured credit union, or federally insured credit union whose the same basis as that provided in converts from federal insurance to other fidelity bond coverage is terminated § 701.32 for federal credit unions, insurance from a government or private shall mail notice of such termination to provided, however that NCUA will not source authorized to insure member the Regional Director not less than 35 grant an exemption without the accounts, shall adhere to the applicable days prior to the effective date of such concurrence of the appropriate state requirements stated in Section 206 of termination. regulator. the Act and parts 708a and 708b of this 39280 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules chapter concerning mergers and adhere to the requirements stated in part Information Division, Air Traffic Rules voluntary termination or conversion of 760 of this chapter. and Procedures Service, Federal insured status. Aviation Administration, 800 § 741.217 Truth in savings. Independence Avenue, SW., § 741.209 Management official interlocks. Any credit union which is insured Washington, DC 20591; telephone: (202) Any credit union which is insured pursuant to Title II of the Act shall 267–9230. pursuant to Title II of the Act shall adhere to the requirements stated in part adhere to the requirements stated in part 707 of this chapter. SUPPLEMENTARY INFORMATION: 711 of this chapter concerning Comments Invited management official interlocks, issued § 741.218 Involuntary liquidation and Interested parties are invited to under the provisions of the Depository creditor claims. Any credit union which is insured participate in this proposed rulemaking Institution Management Interlocks Act by submitting such written data, views, (12 U.S.C. 3201 et seq.). pursuant to Title II of the Act shall adhere to the applicable provisions in or arguments as they may desire. § 741.210 Central liquidity facility. part 709 of this chapter. Section 709.3 Comments that provide the factual basis Any credit union which is insured of part 709 applies only to federal credit supporting the views and suggestions pursuant to Title II of the Act and is a unions. presented are particularly helpful in member of the Central Liquidity developing reasoned regulatory [FR Doc. 95–18893 Filed 8–1–95; 8:45 am] Facility, shall adhere to the decisions on the proposal. Comments requirements stated in part 725 of this BILLING CODE 7535±01±P are specifically invited on the overall chapter. regulatory, aeronautical, economic, environmental, and energy-related § 741.211 Advertising. DEPARTMENT OF TRANSPORTATION aspects of the proposal. Any credit union which is insured Communications should identify the pursuant to Title II of the Act shall Federal Aviation Administration airspace docket number and be adhere to the requirements prescribed submitted in triplicate to the address by part 740 of this chapter. 14 CFR Part 71 listed above. Commenters wishing the [Airspace Docket No. 95±ANM±3] FAA to acknowledge receipt of their § 741.212 Share insurance. comments on this notice must submit (a) Member share accounts received Proposed Alteration of Federal with those comments a self-addressed, by any credit union which is insured Airways V±19, V±148, and V±263; CO stamped postcard on which the pursuant to Title II of the Act in its following statement is made: usual course of business, including AGENCY: Federal Aviation ‘‘Comments to Airspace Docket No. 95– regular shares, share certificates, and Administration (FAA), DOT. ANM–3.’’ The postcard will be date/ share draft accounts, are insured subject ACTION: Notice of proposed rulemaking. time stamped and returned to the to the limitations and rules in subpart commenter. All communications A of part 745 of this chapter. SUMMARY: This action proposes to received on or before the specified (b) The payment of share insurance realign three Federal airways located in closing date for comments will be and the appeal process applicable to any Colorado. In May, the Byers, CO, Very considered before taking action on the credit union which is insured pursuant High Frequency Omnidirectional Range/ proposed rule. The proposal contained to Title II of the Act are addressed in Distance Measuring Equipment (VOR/ in this notice may be changed in light subpart B of part 745 of this chapter. DME) became operational as part of the of comments received. All comments new Denver Airport airspace submitted will be available for § 741.213 Administrative actions, realignment. Consequently, the FAA is examination in the Rules Docket both adjudicative hearings, rules of practice and proposing to realign Federal Airways V– procedure. before and after the closing date for 19, V–148, and V–263. This proposal comments. A report summarizing each Any credit union which is insured would enhance air traffic procedures. pursuant to Title II of the Act shall substantive public contact with FAA adhere to the applicable rules of DATES: Comments must be received on personnel concerned with this practice and procedures for or before August 18, 1995. rulemaking will be filed in the docket. administrative actions and adjudicative ADDRESSES: Send comments on the Availability of NPRM’s hearings prescribed by part 747 of this proposal in triplicate to: Manager, Air Traffic Division, ANM–500, Docket No. Any person may obtain a copy of this chapter. Subpart E of part 747 applies Notice of Proposed Rulemaking (NPRM) 95–ANM–3, Federal Aviation only to federal credit unions. by submitting a request to the Federal Administration, 1601 Lind Avenue, Aviation Administration, Office of § 741.214 Report of crime or catastrophic SW., Renton, WA 98055–4056. Public Affairs, Attention: Public Inquiry act and bank Secrecy Act Compliance. The official docket may be examined Center, APA–220, 800 Independence Any credit union which is insured in the Rules Docket, Office of the Chief Avenue SW., Washington, DC 20591, or pursuant to Title II of the Act shall Counsel, Room 916, 800 Independence by calling (202) 267–3485. adhere to the requirements stated in part Avenue, SW., Washington, DC, Communications must identify the 748 of this chapter. weekdays, except Federal holidays, notice number of this NPRM. Persons between 8:30 a.m. and 5:00 p.m. § 741.215 Records preservation program. interested in being placed on a mailing An informal docket may also be Any credit union which is insured list for future NPRM’s should also examined during normal business hours pursuant to Title II of the Act shall request a copy of Advisory Circular No. at the office of the Regional Air Traffic maintain a records preservation program 11–2A, which describes the application Division. as prescribed by part 749 of this chapter. procedure. FOR FURTHER INFORMATION CONTACT: § 741.216 Flood insurance. Norman W. Thomas, Airspace and The Proposal Any credit union which is insured Obstruction Evaluation Branch (ATP– The FAA is considering an pursuant to Title II of the Act shall 240), Airspace-Rules and Aeronautical amendment to part 71 of the Federal Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39281 Aviation Regulations (14 CFR part 71) to From Newman, TX, via INT Newman 286° parties present testimony and evidence realign three Federal airways, V–19, V– and Truth or Consequences, NM, 159° regarding the issues raised by the radials; Truth or Consequences; INT Truth or 148, and V–263, because of the ° ° proposed revision and by this hearing commissioning of the Byers, CO, VOR/ Consequences 028 and Socorro, NM, 189 notice. This notice also reopens the radials; Socorro; Albuquerque, NM; INT DME. This proposal would enhance air Albuquerque 036° and Santa Fe, NM, 245° public comment period and corrects an traffic procedures. Domestic VOR radials; Santa Fe; Las Vegas, NM; Cimarron, error in the proposed revision. Federal airways are published in NM; Pueblo, CO; Colorado Springs, CO; INT DATES: An informal public hearing will paragraph 6010(a) of FAA Order Colorado Springs 036° and Byers, CO, begin at 9 a.m. on September 27, 1995 7400.9B dated July 18, 1994, and 211°T(201°M) radials; Byers; Gill, CO; and on each succeeding day. effective September 16, 1994, which is Cheyenne, WY; Muddy Mountain, WY; 5 Notices of intention to appear at the incorporated by reference in 14 CFR miles, 45 miles 71 MSL, Crazy Woman, WY; Sheridan, WY; Billings, MT; 38 miles 72 informal pubic hearing, along with all 71.1. The Domestic VOR Federal ° testimony and evidence which will be airways listed in this document would MSL, INT Billings 347 and Lewistown, MT, 104° radials; Lewistown; INT Lewistown introduced into the hearing record, must be published subsequently in the Order. 322° and Havre, MT, 226° radials; to Havre. be postmarked by September 13, 1995. The FAA has determined that this * * * * * Comments must be postmarked by proposed regulation only involves an September 13, 1995. established body of technical V–148 [Revised] ADDRESSES: Notices of intention to regulations for which frequent and From Falcon, CO; Byers, CO; Thurman, appear at the hearing and testimony and routine amendments are necessary to CO; 65 MSL INT Thurman 067° and Hayes documentary evidence which will be keep them operationally current. It, Center, NE, 246° radials; Hayes Center; North introduced into the hearing record must therefore—(1) is not a ‘‘significant Platte, NE; O’Neill, NE; Sioux Falls, SD; be submitted in quadruplicate to Mr. regulatory action’’ under Executive Redwood Falls, MN; Gopher, MN; Hayward, Tom Hall, Occupational Safety and Order 12866; (2) is not a ‘‘significant WI; Ironwood, MI; to Houghton, MI. Health Administration, Division of rule’’ under DOT Regulatory Policies * * * * * Consumer Affairs, room N3647, 200 and Procedures (44 FR 11034; February V–263 [Revised] Constitution Avenue N.W., Washington, 26, 1979); and (3) does not warrant From Corona, NM, INT Corona 278° and D.C. 20210, telephone (202) 219–8615. preparation of a regulatory evaluation as Albuquerque, NM, 160° radials; The informal public hearing will be the anticipated impact is so minimal. Albuquerque; INT Albuquerque 019° and Since this is a routine matter that will ° held in the Frances Perkins Building Santa Fe, NM, 268 radials; Santa Fe; Las auditorium, U.S. Department of Labor, only affect air traffic procedures and air Vegas, NM; Cimarron, NM; Tobe, CO; 54 navigation, it is certified that this rule, miles 69 MSL; Lamar, CO; 17 miles 63 MSL; 200 Constitution Avenue N.W., 20210. when promulgated, will not have a Hugo, CO; Byers, CO; to Akron. From Pierre, FOR FURTHER INFORMATION CONTACT: significant economic impact on a SD; Aberdeen, SD. Hearings: Mr. Tom Hall, Occupational substantial number of small entities * * * * * Safety and Health Administration, under the criteria of the Regulatory Issued in Washington, DC, on July 26, Division of Consumer Affairs, room Flexibility Act. 1995. N3647, 200 Constitution Avenue N.W., Reginald C. Matthews Washington, D.C. 20210, telephone List of Subjects in 14 CFR Part 71 Acting Manager, Airspace—Rules and (202) 219–8615. Proposal: Mr. Richard Airspace, Incorporation by reference, Aeronautical Information Division. E. Liblong, Office of Information, Navigation (air). [FR Doc. 95–18914 Filed 8–1–95; 8:45 am] Division of Consumer Affairs, U.S. BILLING CODE 4910±13±P Department of Labor, room N3647, 200 The Proposed Amendment Constitution Avenue N.W., Washington, In consideration of the foregoing, the D.C. 20210, telephone (202) 219–8151. Federal Aviation Administration DEPARTMENT OF LABOR SUPPLEMENTARY INFORMATION: On proposes to amend 14 CFR part 71 as January 14, 1993, the Occupational follows: Occupational Safety and Health Safety and Health Administration Administration (OSHA) issued a General Industry PART 71Ð[AMENDED] standard (§ 1910.146) to require 29 CFR Part 1910 1. The authority citation for 14 CFR protection for employees who enter part 71 continues to read as follows: [Docket No. S±019A] permit-required confined spaces (permit spaces). The permit space standard, Authority: 49 U.S.C. 40103, 40113, 40120; RIN 1218±AA51 which provides a comprehensive E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 regulatory framework for the safe Comp., p. 389; 49 U.S.C. 106(g); 14 CFR Permit-Required Confined Spaces 11.69. performance of entry operations, AGENCY: Occupational Safety and Health became effective on April 15, 1995. § 71.1 [Amended] Administration (OSHA), U.S. On March 15, 1993, the United 2. The incorporation by reference in Department of Labor. Steelworkers of America (USWA) 14 CFR 71.1 of the Federal Aviation ACTION: Notice of informal public petitioned the United States Court of Administration Order 7400.9B, Airspace hearing; reopening of public comment Appeals for the 11th Circuit for judicial Designations and Reporting Points, period; correction. review of § 1910.146. In particular, the dated July 18, 1994, and effective USWA contended that § 1910.146(k)(2), September 16, 1994, is amended as SUMMARY: This notice schedules an which addresses the use of off-site follows: informal public hearing concerning rescue services, was vague and OSHA’s proposal (59 FR 60735) to ineffective. The USWA also stated that Paragraph 6010(a)—Domestic VOR Federal Airways modify the existing rescue provisions of OSHA had inappropriately omitted both the standard (§ 1910.146) covering entry a requirement for testing or monitoring * * * * * into permit-required confined spaces. performed to comply with the standard V–19 [Revised] The Agency requests that interested and a requirement for employees to 39282 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules have access to testing or monitoring recommendations, so OSHA can final rule may not have been sufficiently results. adequately assess these materials when clear as to a ‘‘host’’ employer’s Based on discussions with the USWA, drafting the final rule for this responsibility for the performance of OSHA agreed to initiate further rulemaking. ‘‘outside’’ rescue services. Accordingly, rulemaking, issuing a notice of proposed the Agency has proposed to revise Rescue and Emergency Services rulemaking (NPRM) (59 FR 60735) on § 1910.146(k)(2) so the standard clearly November 28, 1994. The proposed Existing paragraph (k)(1) sets indicates that ‘‘host’’ employers are revisions to § 1910.146(k)(2) more requirements for employers who have required to retain rescue services that clearly express what the Agency their own employees enter permit can respond adequately and in a timely intended when it promulgated the spaces to provide rescue and emergency fashion when summoned to perform permit space standard. They state services. The criteria set by this rescues. specifically that host employers must paragraph are designed to protect such In response, some commenters (Exs. ensure that prospective rescuers who employees from permit space hazards 161–9, 161–13, 161–31, 161–42 and are not employees of the host employer and to maximize their ability to provide 161–50) expressed support for the are able to respond to a rescue summons effective rescue and emergency services. proposed revisions as the appropriate in a timely manner and are equipped Paragraph (k)(1) applies both to rescuers means to ensure that rescue services and trained to perform permit space employed by employers who are performed adequately. Those rescues at the host employer’s facility. conducting permit space operations and commenters indicated that compliance In addition, based on information to rescuers employed by outside rescue would pose no difficulties. received subsequent to the services, insofar as such employers are On the other hand, several promulgation of § 1910.146, OSHA regulated by OSHA (State and local commenters (Exs. 161–1, 161–2, 161–5, proposed to make § 1910.146(k)(3)(i), government employees in non-State 161–6, 161–11 and 161–33) expressed which deals with the point of Plan States are not covered). concern that the proposed language attachment for a retrieval line, more OSHA’s experience indicates that appears to rule out the use of outside performance-oriented by allowing any many employers who conduct permit rescue services. Those commenters point of attachment which enables the space operations rely on off-site rescue stated that OSHA should not discourage entrant’s body to present the smallest services, such as those provided by local the use of off-site rescue services possible profile during retrieval. fire departments, in lieu of establishing because there will be situations where Also, the Agency asked for public an adequate rescue capability using affected employers have no viable input on the USWA’s suggestion that their own employees. The Agency has alternative to relying on those services. OSHA add provisions which would acknowledged that there are Furthermore, those commenters have require that employers provide for circumstances where it is reasonable for indicated that an ‘‘off-site’’ rescue employee observation of permit space ‘‘host employers’’ to rely on persons service summoned by a ‘‘host’’ testing or monitoring, and that other than their own employees to employer might well be able to respond employers also provide employee access provide rescue and emergency services. at least as quickly and effectively as an to the results of permit space testing or Accordingly, existing paragraph (k)(2) ‘‘on-site’’ resuce service set up by the monitoring. sets criteria for the use of such employer conducting entry operations. The NPRM set a 90 day comment ‘‘outside’’ rescue and emergency One commenter (Ex. 161–1) expressed period, ending on February 27, 1995, to services. concern that ‘‘[a]doption of this section receive written comments on the In particular, the host employer must as stated may force small inexperienced proposed revisions and the issues provide the ‘‘outside rescuers’’ with employers into establishing in-house raised. OSHA received 51 written pertinent information about the resuce teams with little or no practical comments (Exs. 161–1 through 161–51). identified permit space hazards and give training.’’ In addition, a commenter (Ex. Several commenters (Ex. 161–21, 161– them access to any permit space from 161–6) stated that ‘‘[o]n-site rescue 22, 161–38, 161–40, 161–44) required which rescue may be necessary, so that teams are usually comprised of that OSHA convene an informal public the rescue service can develop electricians, pipefitters, maintenance hearing to address their concerns. The appropriate rescue plans and can workers and other craftspeople where comments received in response to the practice performing rescues. rescue is a sideline. Whereas most on- proposed revision and issues raised are Pursuant to §§ 1910.146(d)(9) and site teams are only given a minimal available for inspection and copying in (f)(11), the host employer is currently amount of time to train, many off-site the OSHA Docket Office, Docket No. S– required to establish effective means of technical rescue teams do nothing but 019A, room N2625, U.S. Department of summoning rescuers and document train for and run fire and rescue calls.’’ Labor, 200 Constitution Avenue, N.W., those means in the entry permit. Unless However, another commenter (Ex. 161– Washington, D.C. 20210. non-entry rescue procedures have been 40) stated that on-site employees, Based on the response to the NPRM, implemented or the potential rescuers properly trained and equipped, would OSHA has decided to convene an are standing by as entry operations perform better than off-site rescue informal public hearing, beginning on proceed, some time will pass between services, because on-site personnel September 27, 1995, and to reopen the the transmittal of the rescue summons would be familiar with the facility and comment period to obtain public input and the retrieval of an entrant. OSHA regarding the need to more clearly closer to the spaces being entered. expects affected employers to make In addition, the USWA (Ex. 161–38) express a host employer’s responsibility arrangements for rescue which commented as follows: to assess a prospective rescue service’s maximize the likelihood that entrants capabilities (i.e., is equipped, trained, will be retrieved safely while In our June 22, 1993 letter, the USWA and can respond in a timely manner) minimizing the risks for potential expressed concern that the provisions of the and regarding the need for employee standard (primarily paragraph (k)(2)) rescuers. allowing off-site rescue services were vague participation in testing and monitoring. However, in response to a submission and ineffective. In subsequent discussions The Agency requests that hearing (Ex. 1) from the United Steelworkers of with OSHA and the DOL solicitors, we participants and commenters provide America (USWA), the Agency has argued that only an on-site rescue service supporting information for any acknowledged (59 FR 60736) that the could respond in time to save the life of an Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39283 entrant overcome by a hazardous For example, several commenters imperative, because a slightly hypoxic atmosphere, trapped by an engulfing liquid (Exs. 161–23, 161–30, 161–38 and 161– environment may disable an entrant or solid, or critically injured by some other 45) asked that the Agency indicate without creating a risk of permanent confined space hazard. We also pointed out clearly what constitutes ‘‘timely’’ brain damage. Another commenter (Ex. that the standard imposes a number of response to a rescue summons. Some 161–38) took issue with that comment, requirements on on-site rescue services, but not on off-site services, thus giving commenters. (Exs. 161–2, 161–6, 161–7 stating that OSHA must require rescue employers an unwarranted incentive to and 161–26) noted that rescuer within the first few minutes, because choose off-site services. proficiency was as important as the the Agency cannot assume an Subsequent discussions with employers response time and suggested that OSHA environment is only slightly hypoxic. and professional rescue services, along with set performance criteria for assessing the Some atmospheric hazards can cause comments submitted to this docket [S–019A] timeliness of response. Another death or permanent injury within four by other parties, have caused us to modify commenter (Ex. 161–38) suggested that to six minutes. However, rescuers that position. We remain skeptical that an employers be required to have rescuers responding from outside of the off-site service can respond rapidly enough arrive within four minutes of summons immediate area of the entry space would in most circumstances. We are, however, where entrant has been exposed to usually not be able to begin a rescue in willing to admit the possibility. In addition, four to six minutes. Therefore, the only the mere fact that a rescue service is atmospheric or engulfment hazards, and maintained on site is no guarantee that the within 10 minutes otherwise. way rescuers could successfully retrieve service will reach the scene of an emergency One commenter (Ex. 161–25) stated as entrants under such circumstances on time, especially in a very large plant. follows: would be to have personnel present and prepared to initiate rescue throughout Accordingly, we would support a Even with well trained rescue personnel performance-based approach to this issue, so on-site, extracting an incapacitated person the period of entry operations. One long as the desired performance was spelled from a confined space while attempting to commenter (Ex. 161–33) has stated that out with sufficient specificity, and so long as adminster first aid is not a quick process. the proposed rule appears to require ‘‘a it applied to both on-site and off-site rescue Therefore, the fact that rescue capability rescue team to be standing by services. happens to be off-site and perhaps is immediately outside every space during A number of commenters (Exs. 161– unfamiliar with the site’s confined spaces every entry.’’ The commenter indicated may have little impact on the ultimate that such a measure would be 1, 161–14, 161–20, and 161–29) outcome of such an incident. suggested that the Agency drop the inappropriate where there was ‘‘non- proposed revisions to § 1910.146(k). For Another commenter (Ex. 161–39) emergency entry into a permit space.’’ As stated both in the NPRM and example, a commenter (Ex. 161–35) recognized that a rescue service which elsewhere in this notice, OSHA stated that the proposed revision responds to a permit space accident intended this rulemaking simply to ‘‘places the host employer in an within four minutes will still need time clarify the existing requirements of unenviable position of being held to prepare for entry, making it § 1910.146(k)(2). In particular, the accountable for the performance of ‘‘impossible for an outside rescue service to * * * have oxygen to the Agency has attempted to indicate specified employee activities over clearly that an employer who retains an which the host employer has no patient within four minutes.’’ However, that commenter stated ‘‘if the rescuers off-site rescue and emergency service control.’’ In addition, a commenter (Ex. must ensure that the designated service 161–20) indicated that the rationale can get to the patient close to this four- minute time frame, then a rescue may has the equipment, training and overall behind the proposed revisions failed to ability to respond in a timely fashion take into account the application of the still be possible.’’ Other commenters (Exs. 161–14, 161– when summoned to rescue a permit requirements in existing space entrant. OSHA does not thereby § 1910.146(k)(1) to all employers (except 20, 161–28 and 161–33) stated that OSHA should not attempt to specify intend to require that host employers some public sector employers) who ‘‘guarantee’’ the performance of off-site send employees into permit spaces to what constitutes ‘‘timeliness’’ because the existing standard provides sufficient services, to make compliance more perform rescues. That commenter also burdensome for off-site services than for stated as follows: guidance regarding how to assess the adequacy of rescuer response in a on-site services, or to prevent the use of Many employers will use off-site services specific situation. For example, a off-site services. The Agency has because they do not have the specialized commenter (Ex. 161–33) stated as consistently maintained that the rescue training and experience of these follows: purpose of § 1910.146(k) is to require organizations. If a host employer is utilizing that employers’ provisions for rescue, by the outside rescuer because it does not have After careful deliberation, the Agency whatever means, are adequate. The the expertise to maintain a team in-house, properly rejected any attempt to incorporate proposed amendment to how can the host determine, let alone be held a timeliness requirement into the standard. accountable as to whether that expertise is Rather than adopting a timeliness § 1910.146(k)(2) (59 FR 60735) was ‘‘functioning appropriately’’? [emphasis in requirement which would be infeasible, intended solely to clarify the original original] would encourage conduct likely to endanger intent of that paragraph. rescuers, and inevitably would be subject to As amended, paragraph (k)(2) would Other commenters (Ex. 161–26, 161–37, inconsistent enforcement through subjective read as follows: 161–42, 161–46) suggested that any (if not arbitrary) 20–20 hindsight, the Agency (2) When an employer (host employer) revision of existing § 1910.146(k) be concluded ‘‘that prevention of emergencies arranges to have persons other than the host limited to providing clear guidance in permit spaces is the most effective employer’s employees (outside rescuer) regarding how to assess the relative approach to this problem.’’ 58 FR 4527/1. perform permit space rescue, the host merits of on-site and off-site options, The Agency recognizes that permit employer shall ensure that: and set performance criteria that would space hazards vary in their capacity to (i) The outside rescuer can effectively apply to all rescue services. These kill or permanently injure employees respond in a timely manner to a rescue summons. commenters were primarily concerned and that what constitutes ‘‘timely’’ (ii) The outside rescuer is equipped, that the Agency apply the same criteria rescue will vary accordingly. A trained and capable of functioning to all rescuers, whether on-site or off- commenter (Ex. 161–6) has indicated appropriately to perform permit space site. that immediate rescue is not always rescues at the host employer’s facility. 39284 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules (iii) The outside rescuer is aware of the development and implementation of a proposed revision to paragraph (k)(3)(i), hazards they may confront when called on to permit space program. of § 1910.146, beginning on the tenth perform rescue at the host employer’s On the other hand, some commenters line of the third column of page 60739, facility. (Exs. 161–9, 161–12, 161–13, 161– is corrected to read as follows: (iv) The outside rescuer is provided with 25,161–30, 161–50) opposed the access to all permit spaces from which rescue (i) Each authorized entrant shall use a may be necessary so that the outside rescuer inclusion of a requirement for employee chest or full body harness, with a retrieval can develop appropriate rescue plans and observation of monitoring, stating that line attached at the center of the entrant’s practice rescue operations. existing § 1910.146 already addressed back near shoulder level, above the entrants employee access to monitoring head or other point which the employer can The Agency requests testimony and information and that the suggested establish will ensure that the entrant will further comment concerning both the requirement would impose present the smallest possible profile during need for and the adequacy of the unreasonable burdens and delays. Other removal. Wristlets may be used in lieu of the proposed language. Does the proposed commenters (Exs. 161–20, 161–26, 161– chest or full body harness if the employer can language adequately clarify the host 29, 161–35, 161–48) also stated that demonstrate that the use or full body harness employer’s responsibilities in using the is infeasible or creates a greater hazard and section 8(c)(3) of the OSH Act does not that the use of wristlets is the safest and most services of a rescue service not require employee participation in effective alternative. comprised of his own employees? If not, permit space monitoring, because * * * * * how can the proposed provisions be § 1910.146 is a safety standard and the further improved? Is addition guidance statute applies to the promulgation of Public Participation—Notice of Hearing necessary? health standards. In addition, some commenters (Exs. Pursuant to section 6(b) of the act, an Two commenters (Ex. 161–2 and 161– opportunity to submit oral testimony 44) have provided examples of programs 161–15, 161–27 and 161–35) stated that adoption of the suggested provision concerning the proposed revisions and for the proper organization, training and issues raised will be provided at an equipping of rescue services. The would intrude on labor/management relations by mandating collaboration, informal public hearing scheduled to Agency solicits input regarding the begin at 9 a.m. on September 27, 1995 extent to which it would be appropriate while other commenters (Exs. 161–26 and 161–49) expressed concern that in the auditorium of the Francis Perkins to incorporate criteria, such as that Building, 200 Constitution Avenue, provided by the commenters, either as such a requirement would raise safety problems because employees would be N.W., Washington, D.C. 20210. The regulatory text or in a non-mandatory hearing will be extended to subsequent appendix. exposed to dangerous atmospheres. One other commenter (Ex. 161–45) stated days as necessary. Employee Participation in Testing and that it was unnecessary to mandate Notice of Intention To Appear Monitoring employee participation, but that permit space programs should provide for the All persons desiring to participate at In response to a submission from the survey of a permit space at an affected the hearing must file, in quadruplicate, USWA (Ex. 1), the NPRM solicited employee’s request, as a means of a notice of intention to appear, comment as to whether § 1910.146 building trust that the employer is postmarked on or before September 13, should be revised to require that looking out for the well-being of the 1995. The notice must be addressed to affected employees, or their designated employees. Mr. Tom Hall, OSHA Division of representatives, be permitted to observe In response to the above-described Consumer Affairs, Docket S–019A, room the evaluation of confined space comments, OSHA requests additional N3647, U.S. Department of Labor, 200 conditions, including any testing or input regarding the need for regulatory Constitution Avenue, N.W., monitoring conducted under the permit language addressing employee Washington, D.C. 20210, telephone space standard. The USWA (Ex. 161– participation in permit space (202) 219–8615. The notice of intention 38), which requested a hearing on this monitoring. to appear may also be transmitted by issue, expressed support for facsimile to (202) 219–5986, provided Correction incorporation of employee participation the original and 3 copies of the notice into the permit standard. In particular, In its notice of November 28, 1994 (59 subsequently are sent to Mr. Hall. the USWA stated that such a provision FR 60735) OSHA made an error in the The notices of intention to appear, was required under section 8(c)(3) of the regulatory text portion of the proposed which will be available for inspection OSH Act, which provides for employee revision of paragraph (k)(3)(i). The and copying at the OSHA Technical observation of monitoring performed to preamble discussion (in the middle Data Center Docket Office, room N2625, verity compliance with health column of page 60738) makes it clear 200 Constitution Avenue, N.W., standards. The commenter also stated that OSHA intended to amend only the Washington, D.C. 20210, telephone ‘‘A worker entering a confined space first sentence of paragraph (k)(3)(i). (202) 219–7894, must contain the risks sudden death if the monitoring is However, the proposed regulatory text following information: not done properly. Surely that worker (in the third column of page 60739) did (1) The name, address, and telephone should have the right to observe the not include the existing paragraph number of each person wishing to monitoring.’’ (k)(3)(i) language which provides for the appear; Other commenters (Exs. 161–39 and use of wristlets, creating the impression 161–43) stated that it was appropriate to that OSHA intended to disallow the use (2) The capacity in which the person require employee participation in of wristlets. Indeed, several commenters will appear; monitoring and testing because it would (Exs. 161–20, 161–25, 161–26, 161–48) (3) The approximate amount of time reassure employees that the results were called the omission to the Agency’s requested for the presentation; accurate and reliable. In addition, a attention and expressed support for the (4) The specific issues that will be commenter (Ex. 161–40) indicated that retention of the sentence in the final addressed; employee participation in monitoring rule. The exclusion of the sentence (5) A statement of the position that was an example of the approaches that regarding the use of wristlets from the will be taken with respect to each issue could be used to involve workers in the proposal was inadvertent. Therefore, the addressed, and; Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39285 (6) Whether the party expects to parties which can be carried out the position taken with respect to each submit documentary evidence, and, if expeditiously and in the absence of issue. so, a brief summary of that evidence. rigid procedures which might unduly The data, views and arguments that impede or protract the rulemaking are submitted will be available for Filing of Testimony and Evidence process. public inspection and copying at the Before the Hearing The hearing will be conducted in above address. Any party requesting more than 10 accordance with 29 CFR part 1911. The All timely written submissions will be minutes for a presentation at the hearing will be presided over by an made a part of the record for this hearing, or who will submit Administrative Law Judge who will proceeding. documentary evidence, must provide, in have all the necessary and appropriate Authority and Signature quadruplicate, the complete text of the authority to conduct a full and fair testimony, including any documentary informal hearing as provided in 29 CFR This document was prepared under evidence to be presented at the hearing, 1911, including the powers to: the direction of Joseph A. Dear, to the OSHA Division of Consumer (1) Regulate the course of the Assistant Secretary of Labor for Affairs. This material must be proceedings; Occupational Safety and Health, U.S. postmarked on or before September 13, (2) Dispose of procedural requests, Department of Labor, 200 Constitution 1995. These materials will be available objections and comparable matters; Avenue, N.W., Washington, D.C. 20210. for inspection and copying at the (3) Confine the presentation to the It is issued under section 6(b) of the Technical Data Center Docket Office. matters pertinent to the issues raised; Occupational Safety and Health Act of The amount of time requested in each (4) Regulate the conduct of those 1970 (29 U.S.C. 655), Secretary of submission will be reviewed. In those present at the hearing by appropriate Labor’s Order No. 1–90 (55 FR 9033) instances where the information means; and 29 CFR part 1911. contained in the submission does not (5) In the Judge’s discretion, question Signed at Washington, D.C. this 28th day justify the amount of time requested, a and permit the questioning of any of July, 1995. more appropriate amount of time will be witness and to limit the time for Joseph A. Dear, allocated and the participant will be questioning, and; Assistant Secretary of Labor. provided appropriate notice. (6) In the Judge’s discretion, keep the [FR Doc. 95–18920 Filed 8–1–95; 8:45 am] Any party who has not substantially record open for a reasonable, stated time complied with the requirements for to receive written information and BILLING CODE 4510±26±M requesting more than 10 minutes of additional data, views and arguments presentation time will be limited to a 10 from any person who participated in the minute presentation. Any party who has oral proceedings. DEPARTMENT OF DEFENSE not filed a notice of intention to appear Following the close of the hearing, the Office of the Secretary may be allowed to testify, as time presiding Administrative Law Judge permits, at the discretion of the will certify the record to the Assistant 32 CFR Part 220 Administrative Law Judge. Secretary of Labor for Occupational The hearing will be open to the Safety and Health. The Administrative Collection From Third Party Payers of public, and any interested person is Law Judge does not make or recommend Reasonable Costs of Healthcare welcome to attend. However, only any decisions as to the content of the Services persons who have filed proper notice of final standard. intention to appear will be permitted to The proposed revisions and issues AGENCY: Office of the Secretary, DoD. ask questions and otherwise participate raised will be reviewed in light of all ACTION: Proposed rule. fully in the proceeding. testimony and written submissions SUMMARY: Any participant who requires received as part of the record. Decisions This proposed rule would audiovisual equipment for their oral made by OSHA concerning the establish a new rule under the Third testimony must submit a request for proposed revisions and issues will be Party Collection program for such equipment in their notice of intent based on the entire record of the determining the reasonable costs of to appear, specifying the type of proceeding, including the written health care services provided by equipment needed. comments and data received from the facilities of the uniformed services in public. cases in which care is provided under Conduct and Nature of Hearing TRICARE Resource Sharing Agreements. The hearing will commence at 9 a.m. Written Comments For purposes of the Third Party on September 27, 1995 in Washington, Interested persons are invited to Collection program such services will be D.C. Any procedural matters relating to submit written data, views and treated the same as other services the hearing will be resolved arguments with respect to the issues provided by facilities of the uniformed immediately after commencement. The raised in this notice. These comments services. The proposed rule also lowers informal nature of the rulemaking must be postmarked on or before the high cost ancillary threshold value hearing to be held is established in the September 13, 1995, and submitted in from $60 to $25 for patients that come legislative history of section 6 of the Act quadruplicate to the Docket Office, to the uniformed services facility for and is reflected in the OSHA hearing Docket No. S–019A, room N–2625, U.S. ancillary services requested by a source regulations (see 29 CFR 1911.15(a)). Department of Labor, 200 Constitution other than a uniformed services facility Although the presiding officer is an Avenue, N.W., Washington, D.C. 20210, provider. The reasonable costs of such Administrative Law Judge and telephone (202) 219–7894. Comments services will be accumulated on a daily questioning by interested parties is limited to 10 pages or less also may be basis. allowed on the issues, it is clear that the transmitted by facsimile to (202) 219– DATES: Written comments on this hearing shall remain informal and 5046, provided the original and three proposed rule must be received on or legislative in type. The intent, in copies are sent to the Docket Office before October 2, 1995. essence, is to provide an opportunity for thereafter. Written submissions must ADDRESSES: LCDR Pat Kelly, Office of effective oral presentation by interested clearly identify the issue addressed and the Assistant Secretary of Defense 39286 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules (Health Affairs), Health Services TRICARE Resource Sharing a final rule within approximately 60 Operations and Readiness, Pentagon Agreements are similar to Partnership days after close of the comment period. Room 3E343, Washington, D.C. 20301– Program payment arrangements in that List of Subjects in 32 CFR Part 220 1200. both result in civilian providers coming FOR FURTHER INFORMATION CONTACT: into the military facility and providing Claims, Health care, Health insurance. LCDR Patrick Kelly, (703) 756–8910. care in that facility. However, a For the reasons stated in the SUPPLEMENTARY INFORMATION: Currently, significant difference exists in the preamble, 32 CFR part 220 is proposed the Third Party Collection program method of payment. Under the to be amended as follows: regulation includes a special rule for Partnership Program, payment is on a fee-for-service basis under the normal PART 220ÐCOLLECTION FROM Partnership Program providers. The THIRD PARTY PAYERS OF Partnership Program allows civilian operation of the CHAMPUS program. Under Resource Sharing, the method of REASONABLE COSTS OF health care providers authorized to HEALTHCARE SERVICES provide care under the CHAMPUS payment may be on a salary basis or program to provide services to other arrangement made by the managed 1. The authority citation for part 220 CHAMPUS beneficiaries in military care support contractor. Under the continues to read as follows: hospitals and to receive payment from Partnership Program, the CHAMPUS Authority: 5 U.S.C 301; 10 U.S.C. 1095. the CHAMPUS program. Pursuant to second payer requirement applies. Under Resource Sharing Agreements, 2. Section 220.8 is amended by CHAMPUS payment rules, CHAMPUS the overall managed care contract revising paragraphs (h) and (k) to read is always the secondary payer to other separates the financing from the normal as follows: health insurance plans; Thus, CHAMPUS payment rules and allows CHAMPUS may not make payment to § 220.8 Reasonable costs. for special payment rules. the Partnership Program provider in Based on this, we are establishing a * * * * * (h) Special rule for certain ancillary cases in which the beneficiary has other special rule for Resource Sharing services ordered by outside providers health insurance. To accommodate this Agreements. Or, more accurately, we are and provided by a facility of the CHAMPUS requirement, the third Party establishing the normal rule for Uniformed Services. If a Uniformed Collection program currently excludes Resource Sharing Agreements. That is to Partnership Program provider services say that care provided in whole or in Services facility provides certain from the military hospital claims. Thus, part through TRICARE Resource Sharing ancillary services, prescription drugs or for example, for inpatient hospital care, Agreements will be handled for other procedures requested by a source the Third Party Payer now receives two purposes of third party billings just like other than a Uniformed Services facility claims, one from the military facility for all other services provided in the and are not incident to any outpatient the hospital and ancillary costs, and a military facility, and will be billed at the visit or inpatient services, the separate claim from the provider for the same rates. The special rule applicable reasonable cost will not be based on the professional services. to the Partnership Program providers, usual DRG or per visit rate. Rather, a The current practice has produced under which two claims are made to the separate standard rate shall be some confusion in that it is a departure third party payer, will not apply under established based on the accumulated from the normal procedure for claims TRICARE Resource Sharing Agreements. cost of the particular services, drugs, or arising from care provided by military As a result, care provided in military procedures provided during one day. hospitals. In addition, because the facilities will be billed to third party The billing threshold shall be published Partnership Program providers function payers in the same manner and same annually. For fiscal year 1996 that independently from the military amount, regardless of whether the threshold limit shall be $25. The hospital’s management system, there are professional services were provided by reasonable cost for the services, drugs or no DoD standards that govern the a military physician or Resource procedures to which this special rule amounts claimed by various Partnership Sharing Agreement provider. applies shall be calculated and made Program providers. The TRICARE program is being available to the public annually. DoD is now proceeding with phased in region-by-region throughout * * * * * implementation of a major managed the United States. As it takes hold, we (k) Special rules for TRICARE care program, called TRICARE, in its expect the Partnership Program to be Resource Sharing Agreements and military medical treatment facilities and phased out and be replaced by TRICARE Partnership Program providers. CHAMPUS. Under TRICARE, regional Resource Sharing Agreements. Thus, in (1) In general. This paragraph (k) managed care support contractors will several years, the special Partnerhship establishes special Third Party work with military treatment facilities Program rule will no longer be needed, Collection program rules for TRICARE on a wide range of managed care and the simpler, single-claim rule for Resource Sharing Agreements and activities. Among the activities of the TRICARE Resource Sharing Agreements Partnership Program providers. managed care contractors is the will apply. We view this as both a (i) TRICARE Resource Sharing Resource Sharing Program. Under this simplification and an improvement in Agreements are agreements under the program, the contractor makes the Third Party Collection program. authority of 10 U.S.C. 1096 and 1097 agreements with military hospitals in With respect to regulatory procedures, between uniformed services treatment the region under which the contractor this proposed rule is not a significant facilities and TRICARE managed care will supply personnel and other regulatory action under Executive Order support contractors under which the resources in order to allow the facility 12866, nor does it significantly affect a TRICARE managed care support to increase the services it can make substantial number of small entities contractor provides personnel and other available to DoD health care under the Regulatory Flexibility Act, resources to the uniformed services beneficiaries. The TRICARE program is nor impose new information collection treatment facility concerned in order to now the subject of a separate requirements under the Paperwork help the facility increase the availability rulemaking proceeding, which will Reduction Act. This is a proposed rule. of health care services for beneficiaries. result in comprehensive regulations All public comments are invited. We TRICARE is the managed care program codified at 32 CFR 199.17. expect to proceed with promulgation of authorized by 10 U.S.C. 1097 (and Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39287 several other statutory provisions) and DEPARTMENT OF TRANSPORTATION inspection and copying at, the office of established by regulation at 32 CFR the Commander (obr), Ninth Coast 199.17. Coast Guard Guard District, room 2083, 1240 East (ii) Partnership Program providers Ninth Street, Cleveland, Ohio 44199– 33 CFR Part 117 2060, between 6:30 a.m. and 3 p.m., provide services in facilities of the Monday through Friday, except Federal uniformed services under the authority [CGD09±95±023] holidays. of 10 U.S.C. 1096 and the CHAMPUS RIN 2115±AE47 The public hearing on August 22, program. They are similar to providers 1995 will be held at the Ralph H. Drawbridge Operation Regulations; providing services under TRICARE Metcalfe Federal Building, 77 West Chicago River, Illinois Resource Sharing Agreements, except Jackson Street, Chicago, IL 60604. that payment arrangements are different. AGENCY: Coast Guard, DOT. FOR FURTHER INFORMATION CONTACT: Ms. Those functioning under TRICARE ACTION: Notice of proposed rulemaking; Carolyn Malone, Bridge Branch, Ninth Resource Sharing Agreements are under notice of public hearing. Coast Guard District, (216) 522–3993. special payment arrangements with the SUPPLEMENTARY INFORMATION: TRICARE managed care contractor; SUMMARY: The Coast Guard is proposing those under the Partnership Program file changing the operating regulations Drafting Information claims under the standard CHAMPUS governing the drawbridges over the The principal persons involved in program on a fee-for-service basis. Chicago River system, most of which are drafting this document were: (2) Special rule for TRICARE Resource owned and operated by the City of Commander James M. Collin, U.S. Coast Chicago. This proposed rule would Sharing Agreements. Services provided Guard, and Project Counsel; Mr. A.F. establish the times when, and the in facilities of the uniformed services in Bridgman, Jr., Chief, Regulations and conditions under which, the bridges whole or in part through personnel or Administrative Law Division, U.S. Coast need to open for the passage of Guard. other resources supplied under a commercial and recreational vessels, TRICARE Resource Sharing Agreement and require advance notice of a Request for Comments are considered for purposes of this Part recreational vessel’s time of intended The Coast Guard encourages as services provided by the facility of passage through the bridges. Special interested persons to submit written the uniformed services. Thus, third provisions would be added to provide data or views concerning this proposed party payers will receive a claim for drawbridge openings for flotillas of five rule. Persons submitting comments such services in the same manner and or more recreational vessels. The should include their names and for the same costs as any similar proposed regulations have one set of addresses and identify this notice services provided by a facility of the rules for the period of high vessel [CGD09–95–023]. Please submit two uniformed services. activity, 1 April through 30 November, copies of all comments and attachments (3) Special rule for Partnership and other rules for the remainder of the in an unbound format, no larger than 1 Program providers. For inpatient year. Further, certain bridges on the 8 ⁄2 by 11 inches, suitable for copying and electronic filing. Persons wanting services for which the professional North Branch of the Chicago River have acknowledgment of receipt of comments provider services were provided by a been deleted from the previous should enclose stamped, self-addressed Partnership Program provider, the permanent rule because they no longer exist or are no longer in the route of postcards or envelopes. The Coast professional charges component of the commercial or recreational vessels. The Guard will consider all comments total inpatient DRG rate will be deleted changes are being proposed in response received during the comment period. from the claim from the facility of the to a request by the City of Chicago to The comment period has been limited to uniformed services. The third party reduce the number of required bridge August 30, 1995, in order to enable the payer will receive a separate claim for openings. That request was premised on Coast Guard to have a final rule in effect professional services directly from the the unique situation in Chicago, where by the end of the boating season. individual health care provider. The 26 bridges cross the Chicago River and Public Hearing same is true for the professional services its North and South branches in the very provided on an outpatient basis under heart of the City. As a result, City The Coast Guard will hold a public the Partnership Program. Claims from officials asserted that drawbridge hearing on this proposal on August 22, Partnership Program providers are not openings in Chicago have a greater 1995, from 7 p.m. until 11 p.m. at the covered by 10 U.S.C. 1095 or this part, potential impact on vehicular traffic Ralph H. Metcalfe Federal Building, 77 but are governed by statutory and than in any other major city in the West Jackson Street, Chicago, IL 60604. regulatory requirements of the United States. This action should Attendance at the hearing is open to the public. Persons wishing to make oral CHAMPUS program. accommodate the needs of vehicle traffic while providing for the presentations should notify Ms. Carolyn * * * * * Malone at the number listed under FOR July 28, 1995. reasonable needs of navigation. The Coast Guard will hold a public hearing FURTHER INFORMATION CONTACT no later L.M. Bynum, on this proposal on August 22, 1995, in than the day before the meeting. Written Alternate OSD Federal Register Liaison Chicago, IL. material may be submitted at the Officer, Department of Defense. hearing for inclusion in the public DATES: Written comments on this [FR Doc. 95–18961 Filed 8–1–95; 8:45 am] docket. Individuals making oral proposed rulemaking must be received BILLING CODE 5000±04±M presentations at the hearing are by August 30, 1995. encouraged to submit a written copy of The hearing will be held on August their remarks for the rulemaking docket. 22, 1995, from 7 p.m. until 11 p.m. ADDRESSES: Comments should be Regulatory History addressed to, and documents referenced Since the 1970’s, the regulations for in this preamble are available for the operation of the bridges on the 39288 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Chicago River had provided for on Commander authorized a temporary Intent to issue a temporary deviation for signal openings seven days a week, deviation to the permanent rule for the the spring breakout and announced a except during rush hours Monday period October 11, 1994 through public hearing to discuss the proposed through Fridays. This regulation is December 5, 1994. A notice of this schedule in the deviation. The proposed referred to as the ‘‘permanent rule.’’ On deviation, soliciting comments on the deviation would have required the May 12, 1993, under the provisions of effect of the deviation, was published on draws to open, except during rush- 33 CFR 117.43, the Coast Guard October 24, 1994 (59 FR 53351). The hours, for recreational vessels that had published (58 FR 27933) a deviation deviation provided for openings of provided twenty-four hours notice of from the permanent rule to allow the bridges, with a twenty-four hour their intended passage through the City of Chicago to limit weekday advance notice to the City of Chicago, draws. This proposal was published to openings for recreational vessels, to from 7 a.m. to 7 p.m. on Saturdays and provide a basis for discussion and require advance notice for opening, and Sundays, and on Wednesdays between comment. The proposal explicitly noted to require the recreational vessels to be the hours of 6:30 p.m. and 10 p.m., that any deviation ultimately issued for organized in flotillas of five to twenty- throughout the entire period. In the spring 1995 season might differ as five vessels for passage. Deviations such addition, from October 11 through a result of comments received and as this for not more than 90 days are October 23 the draws were to be opened positions expressed during the course of utilized to evaluate suggested changes to between the hours of 10:30 a.m. to 1:30 a public hearing scheduled for March 9, drawbridge operation requirements. p.m. on Tuesdays and Thursdays, and 1995. Subsequent deviations, with varying from October 23 through December 5 The hearing provided all concerned requirements, were published on June the draws were to be opened for vessel parties with the opportunity to present 16 (58 FR 33191), August 12 (58 FR passage between the hours of 10:30 a.m. oral and written statements, with 42856), October 21 (58 FR 54289) and and 1:30 p.m. on Wednesdays. Flotilla supporting data, to the Coast Guard for November 29, 1993 (58 FR 62532). size was specified. The Coast Guard evaluation to determine if any revisions On Wednesday, December 22, 1993, decided on this approach since it was should be made to the proposed the Coast Guard published a notice of consonant with public comments on deviation. A Coast Guard representative proposed rulemaking and notice of behalf of the City and its citizens urging presided at the hearing which was well public hearing entitled Drawbridge that ‘‘on demand’’ openings should not attended. In addition to individual Operation Regulation: Chicago River, IL continue, and also with the boatyards comments by boaters and other (58 FR 67745). The Coast Guard which had stated that some weekday interested persons, there were multiple received 132 letters commenting on this openings were necessary. Moreover, the presentations, primarily by proposal. A public hearing was held on schedule set forth in this deviation representatives of three interested January 20, 1994 in Chicago, Illinois, accommodated the Court’s concern by groups: the City of Chicago, the attended by 107 persons, of whom 32 providing weekday openings during the boatyards, and national level maritime made oral statements or furnished data fall season. organizations. on the proposed regulations. The comment period ended on The vast majority of the 68 written Following this notice and comment January 15, 1995. The Coast Guard comments were received from a wide rulemaking, on April 18, 1994, the Coast received twenty-one comments on this variety of Chicago civic organizations Guard promulgated a new final rule for deviation. The City expressed and businesses, including property drawbridge operations on the Chicago opposition to any new permanent owners and managers and developers. River. This rule provided for evening regulation for the spring 1995 breakout. Individual businesses commenting openings on Tuesday and Thursday, In support of its position, the City ranged from taxi companies and Saturday and Sunday openings during provided data concerning the number of delivery services to Union Station, the day, and Wednesday daylight boat runs during the preceding spring AMTRAK, and De Paul University. The openings from April 15 through June 15. and fall seasons, including the number City of Chicago, including the Chicago It also specified a flotilla size of between of boats traversing through the Police Department and members of the 5 and 25 vessels. drawbridges and the number of times Chicago City Council, also submitted On September 26, 1994, the United the individual drawbridges were opened comments and additional data. These States District Court for the District of and delays that occurred. The City was comments opposed the temporary Columbia issued an order in the case of unable to provide a vehicular traffic deviation which would have allowed Crowley’s Yacht Yard, Inc., Plaintiff, v. count for the fall, but stated that it unrestricted weekday openings, other Federico Pena, Secretary, United States would provide traffic count statistics for than during rush hours, and urged that Department of Transportation, the spring season. The City urged a openings be limited to weekends and Defendant, (C.A. No. 94–1152 SSH), deviation schedule allowing one evenings. They vigorously opposed any rescinding the new final rule published weekday daylight opening and weekend daytime weekday openings. The boating on April 18, 1994, and reinstating the openings. Comments from the boatyards organizations and the boatyards favored previous regulations or permanent rule. favored the existing regulatory structure a 24-hour notification with no The Court’s decision was based on its and also opposed a new permanent additional restrictions other than during conclusion that there was not a regulation for the spring breakout. rush hours. sufficient basis in the administrative Thirteen of the other twenty comments At the public hearing, City record to support the Coast Guard’s favored no change to the existing representatives stated that they have decision to allow weekday daylight regulations and expressed opposition to determined that weekday daylight openings only in the spring, and its establishing minimum and maximum openings are not necessary, since all view that a traffic study provided by the flotilla sizes. Other comments indicated outgoing and incoming vessels can be City was suspect since it took place in that, if a change is necessary, there accommodated on weekends. They part during the ‘‘Taste of Chicago’’ should be weekday daylight openings stated that weekday openings are too festival, which resulted in increased and expressed opposition to flotilla disruptive to emergency services, vehicular traffic. sizes. commercial vehicular traffic during As a result of the Court decision and On February 16, 1995 (60 FR 8941), business hours, and pedestrian and to gather data for future use, the District the Coast Guard published a Notice of midday vehicular traffic. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39289 Representatives of commercial interests 1995 (60 FR 18061) a Notice of Intent to vehicle traffic delays and congestion, stated their opposition to weekday form a negotiated rulemaking committee the Coast Guard chartered a negotiated openings due to disruption of deliveries, to bring together representatives of all rulemaking committee in accordance public transportation, and emergency affected parties to attempt to reach with the Federal Advisory Committee services. Representatives of the consensus on a new permanent rule. Act (5 U.S.C. App) (FACA). The boatyards stated that the permanent On May 18, 1995, the United States negotiating committee, consisting of regulation in effect should not be District Court for the District of representatives of the City of Chicago, modified until data are collected for an Columbia vacated the April 10, 1995 Chicago commercial interests, boatyards entire navigation season. They temporary deviation and reinstated the on the Chicago River system, the discussed their practice of voluntarily permanent rule in effect previously, Chicago Yachting Association, and the arranging flotillas to minimize the codified at 33 C.F.R. 117.391 (1993). Coast Guard, met to share views and number of openings required, and The Court’s decision was premised on attempted to come to consensus on the asserted there was a need for individual its conclusion that the Coast Guard’s best possible operating parameters for vessels to transit the Chicago River authority to issue temporary deviations the operation of the City of Chicago system in order to obtain routine is subject to the Administrative bridges. The committee met under the servicing or repairs. They asserted that Procedures Act constraints and that, guidance of an experienced neutral failure to provide convenient access to while the Coast Guard had provided facilitator, on June 5, 14, 20, 28 and July the boatyards seriously affected their notice, comment, and a hearing, the 12, 1995. During the day-long sessions business, citing a reduction in the Court did not have before it the the committee engaged in detailed number of vessels utilizing their yards administrative record on which the discussions concerning the history of for winter storage as well as a decline decision was based. Although the drawbridge operations, future concerns, in income from repairs. Representatives reinstated permanent rule provides for and the goals sought by the interest of the boaters stated that not all boats opening the bridges ‘‘on signal’’ except groups represented. Despite a full and can participate in weekend flotillas, but during rush hours, the drawbridges have frank exchange of views, the they can join weekday daylight flotillas. been operating on scheduled weekend presentation of several alternatives by In their opinion, nighttime navigation is and limited weekday openings through the Coast Guard, and modifications not conducive to safety. Individual voluntary cooperative agreements suggested by members, the committee boaters also expressed concern over the between the principal boatyards and the was unable to come to consensus on an safety of large flotillas transitting the City. appropriate operating schedule for the confined waters of the Chicago River Negotiated Rulemaking bridges. As stated in the notice system. Representatives of national announcing the establishment of the As detailed above, there have been a negotiated rulemaking committee, the manufacturing and boating interests wide variety of temporary deviations expressed concern that the right of free Coast Guard is committed to proceeding and one permanent rule addressing with notice and comment rulemaking navigation was being unduly restricted bridge operating schedules on the by the proposed temporary deviation, procedures in order to have a final rule Chicago River. In addition, there have in place by the end of the boating season and that if the Coast Guard restricted been two court challenges that have openings on the Chicago River, it would in the fall, 1995, when recreational overturned these schedules and vessels leave Lake Michigan for winter be a precedent for restricting navigation reinstated the pre-1993 operating elsewhere. storage. Accordingly, the Coast Guard regulations. There have also been has published this notice of proposed As a result of the public hearing and periods of voluntary cooperation when rulemaking and has scheduled a public a reassessment of all the comments boatyard owners and City hearing. In the absence of a consensus- received, the Coast Guard promulgated representatives have worked together to based rule, this proposal is based on the a temporary deviation to the operating established scheduled openings within extensive administrative record that the schedule of the Chicago River Bridges regulatory parameters. All of these Coast Guard has assembled to date. on April 10, 1995 (60 FR 18006) activities have supported the idea that a covering the period from April 15, 1995 formal negotiated rulemaking leading to Summary of Issues to July 13, 1995. The temporary a meeting of the minds and cooperation When the City of Chicago first came deviation featured daytime and evening by all interested parties would provide to the Coast Guard in 1993 with a openings on Tuesdays and Thursdays as the best chance for successful request to change the bridge regulation well as weekend openings, flotilla rulemaking. Utilizing an experienced that had been in existence since the maximums, and 24-hour advance notice and impartial facilitator, the Coast 1970’s, the Coast Guard began looking at prior to opening. The temporary Guard contacted representatives of the whether that ‘‘on demand’’ regulation deviation recognized the concerns of the City, commercial interests, boatyards, was appropriate. A primary factor in City and business interests by limiting and boaters, and determined that they this review was the statutory change in weekday openings. It also addressed the would participate in a negotiated 1988 that specifically requires the Coast concerns expressed by the boatyards rulemaking and received their Guard to balance land and water and boaters by not requiring a minimum assurances they would negotiate in good transportation needs. As amended in flotilla size and by providing for transits faith. 1988, 33 U.S.C. 499 provides that rules on four days of the week. The advance In light of the difficulties experienced and regulations governing drawbridges notice requirement was selected as in arriving at a drawbridge rule that best shall, to the extent practical and being adequate to allow scheduling of accommodates the needs of vehicular feasible, provide for regularly scheduled bridge openings by the City, but and boating traffic, as required by the openings of drawbridges during seasons responsive to unanticipated needs for 1988 amendment to 33 U.S.C. 499 of the year, and during times of the day, transits by boats. It provided the basis which provides that rules and when scheduled openings would help for comparing the merits of an regulations governing drawbridges shall, reduce motor vehicle traffic delays and alternative schedule with previously to the extent practical and feasible, congestion on roads and highways imposed schedules. Simultaneously, the provide for regularly scheduled linked by drawbridges. As noted above, Coast Guard published on April 10, openings that would help reduce motor and detailed more fully below, Chicago 39290 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules is unique in that no other major city has over the main branch. In addition, due obligation to promulgate a rule which so many drawbridges incorporated into to the confined nature of the Chicago will balance the needs of land and a downtown web of thoroughfares. Thus River and the close proximity of the maritime transportation and that clearly the potential for disruption of vehicular bridges, few recreational sailing vessels sets forth the rights and obligations of traffic related to openings of the ‘‘cruise’’ on the river. These the bridge owner and the vessel owners. drawbridges is greater in Chicago than circumstances are drastically different It should be noted that the proposed in any other major city in the United from the normal situations addressed by rulemaking does not govern all the States. drawbridge regulations. Virtually all of drawbridges on the Chicago River. The In recent years the number of the Coast Guard’s drawbridge proposal only affects the bridges owned boatyards on the Chicago River system regulations concern single bridges. The or operated by the City. With the has decreased. There also has been procedures and guidance in the Bridge exception of bridges which carry evidence of physical deterioration in Administration Manual (COMDTINST Chicago Transit Authority trains, the bridge operations. Due to changes in the M16590.5A) primarily address those bridges carry vehicular and pedestrian number of personnel utilized by the City normal situations. Accordingly, in the traffic. There are four railroad bridges, to open the bridges, costs associated Chicago situation the Coast Guard not owned by the City, that are manned with operating the bridges have adopted a systems approach to by bridge tenders 24 hours a day. These increased. Expanded commercial analyzing the need for changes to the bridges would continue to open on development outside of Chicago’s existing rules and, if changes were signal for both commercial and ‘‘Loop’’ business district has generated found to be appropriate, the nature of recreational vessels. additional vehicular and pedestrian those changes. It was recognized that Summary of Comments traffic demands, raising concerns from unique solutions might be required and Over the course of the history City commercial interests as well as City that any revised rules that resulted outlined above there have been two officials. As a result, there has been should not be considered as setting a public hearings and many comments growing disbelief on the part of the City precedent for the drawbridge from a wide variety of special and and boatyards that voluntary regulations where normal navigational public groups as well as individuals. cooperation among them would and land traffic exists. continue to provide for mutually Positions over the course of this two and In addition, the Coast Guard realized satisfactory drawbridge operations. The one-half year process have run the that it was necessary to distinguish City has desired increased predictability spectrum from opening the bridges on and a move away from an ‘‘on demand’’ between the provisions of the existing demand, with no flotilla or advance opening schedule that leaves the City at permanent rule and the practices that notice restrictions, to opening only on the mercy of any boater’s request to had been followed, on a voluntary basis, weekends with a variety of restrictions. have up to 26 bridges, most owned by in earlier years and during more recent The following discussion briefly the City, open on demand. The City has times. The existing rule requires the summarizes the positions of the asserted that the existing rule cost the bridges to be opened on demand, and interested parties, which have remained City thousands of dollars in labor, bridge logs for the years prior to 1993 essentially unchanged since the City caused thousands of hours of vehicle showed that bridges were opened first requested a change to the existing and pedestrian delay for each series of frequently, during weekday daylight regulations. bridge openings, and benefited only a hours, for single vessel transits. In 1992, The City representatives have urged relatively few boat owners who chose to apparently related to an accident that weekday daylight openings are not traverse the Chicago River without involving the Michigan Avenue bridge necessary, since all outgoing and lowering the masts on their vessels. The and the flooding of a tunnel under the incoming vessels can be accommodated boatyard owners also have wanted main branch of the river, the City on weekends. Weekday openings are too predictable drawbridge openings but desired to limit weekday daylight disruptive to commercial vehicular were concerned that limited openings, openings, concentrate openings on traffic during business hours, emergency particularly during weekday daylight weekends, and arrange for recreational services, and midday pedestrian, public hours, would adversely affect their vessels to transit in flotillas. Since 1993, transit, and vehicular traffic. The City business. The boaters were concerned weekday daylight openings have been has submitted lengthy comments and that individual boaters would continue limited through the voluntary practices data concerning the problems caused by to have reasonable opportunity to of the boatyards in grouping vessels into multiple openings and the costs traverse the river. flotillas for transits, particularly during associated with maintaining and At the outset, the Coast Guard the spring breakout and the return to operating the aging drawbridges. recognized that the situation involving winter storage in the fall. While this Representatives of the City have the drawbridges over the Chicago River practice has worked, with varying attended hearings and discussed the and its branches was both complex and degrees of friction, to limit the number potential impact of bridge openings on unique. The Chicago River and the of drawbridge openings and the emergency response by police, fire, and North and South branches divide the consequent impact on land traffic, the rescue vehicles. In addition, City core portion of the third largest city in statute obligates the Coast Guard to representatives have commented on the the United States into three segments. regulate drawbridge openings, where detrimental effects of vehicle delays on The main branch virtually bisects the necessary. If there is a need to restrict the environment and commercial downtown area, at the North edge of the the number of openings of the development. The comments submitted Chicago Loop. There is virtually no drawbridges over the Chicago River, the on behalf of the City particularly oppose vessel destination in the main branch. Coast Guard cannot leave it to the good on demand openings. Recreational vessels that require bridge will of the boatyard owners and Businesses in Chicago are not in favor openings normally transit the entire individual boaters to limit their requests of weekday daylight openings due to main branch segment enroute to for openings. There are no market forces disruption of deliveries, public destinations on either Lake Michigan or available to balance the needs of the transportation, and emergency services. the North or South branches, thus recreational boater and the citizens of Comments to this effect have been requiring the opening of all ten bridges the City. It is the Coast Guard’s received from taxi companies, couriers, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39291 parcel delivery companies, an employed by the Coast Guard in would be limited to Wednesday ambulance company, hotels, a bank, developing the proposed rule, as morning, with 20-hour advance notice. parking companies, property discussed below, the data on which the (3) On Monday and Friday evenings, management firms, De Paul University, proposal is based, or that provide new after 6:30 p.m., the bridges would be Union Station, AMTRAK, and business data. required to open to accommodate associations. The commercial and transits, if requested 6 hours in advance, business interest comments particularly Proposed Rule with no minimum flotilla requirement. oppose on demand openings. In light of all the comments thus far (4) In addition to the above openings, Representatives of the boatyards received, in writing and during public which would be available for the contended that predictable and readily hearings, the Coast Guard is proposing passage of one or more vessels, available openings are essential to their a rule that it believes best supplemental openings could be continued business viability. They accommodates the needs of the City and scheduled for flotillas of 5 or more urged that provision for passage of its citizens, the commercial interests, vessels, with 20-hour advance notice. single vessels must be retained and the the boatyards, and the individual boater, These openings could not be requested rules should be as flexible as possible to while still conforming to the statutory for rush hour periods. account for peak traffic and unexpected mandate which, in the Coast Guard’s (5) If requests were received for both vessels. They also urged that the view, requires balancing the outbound and inbound transits, the regulations presently in effect should requirement that drawbridges be opened inbound transit would be scheduled to not be modified until data are collected for the passage of vessels with the commence after the outbound transit for an entire navigation season to depict requirement that, to the extent practical had cleared Lakeshore Drive, so that seasonal changes of impact. and feasible, the regulations should only one opening of the Lakeshore Drive Boating interests urged that requiring provide for scheduled openings that bridge could accommodate both transits. The following discussion explains flotillas was too restrictive of the right would help reduce motor vehicle delay how these proposed rules were to navigation and that openings during and congestion. the weekday daylight hours were developed: The proposed regulation would have In crafting these regulations the Coast essential. Boating interests and different rules apply to the period of individual boaters generally supported Guard took into account all the high vessel activity from April 1 comments received from prior Chicago on demand openings, although some through November 30 of each year and comments indicated that limited River rulemaking activities, in writing the period of low activity, from and at hearings, as well as views restrictions on weekday openings would December 1 through March 31 of the be acceptable. They also indicated that expressed and data furnished during the following year. As data, written extensive negotiated rulemaking if a change was necessary, there should comments, and presentations at be daylight openings during the process. During the course of the hearings show, the recreational boating weekdays and openings should not be negotiated rulemaking procedure the season is over well before November 30 restricted to strictly nighttime hours City of Chicago provided the Coast and from December 1 through March 30 from Monday through Friday. Concerns Guard and the committee with two there is little vessel traffic on the were expressed about the difficulties volumes of traffic data to assist in Chicago River. The current regulations encountered in arranging flotillas and determining the scope of the problems provide different rules for the period the hazards to safe navigation presented associated with bridge openings and to from April 1 through December 31, and by large numbers of vessels transiting point out factors or parameters that January 1 through March 31, each year. the confined waters of the Chicago would suggest solutions. They also had River. Some concerns were also Other than the above change, the the consultant who prepared the study expressed over the increased hazards to proposed rules maintain the existing present at two meetings to answer safety inherent in transiting the Chicago provisions for commercial vessels. questions on methodology and other River and navigating on Lake Michigan Editorial changes have been made to study issues. In addition, the Coast at night. clarify the rules and adopt a new format, Guard considered the voluntary The above summary contains the which separates the regulations for practices followed by the boatyards and essence of the comments received by the commercial vessels from those for the City, which have demonstrated that Coast Guard over the past two and one- recreational vessels. The proposed rules using flotillas and scheduling openings half years. The record of comments and also eliminate reference to some bridges in advance is a feasible means of data is voluminous. Some of the which no longer exist. reducing the number of drawbridge comments are duplicative, having been For recreational vessels, the existing openings necessary to accommodate a submitted directly to the Coast Guard permanent rule provides that bridges major portion of the needs of and also included in submissions by the will open on signal from April 1 recreational boaters. City. Extracts from the comments and through December 31, except for First, the Coast Guard decided to references to the data can be found in specified rush hours. In some cases, concentrate on the situation affecting the documents filed by both the plaintiff where bridges are not continually the 10 bridges across the Chicago River. and the defendant in the litigation manned, a delay of up to 30 minutes is While opening bridges across the North outlined above, copies of which have permitted before opening the bridge. and South branches does impact land been included in the public record of The proposed rules would impose the traffic in the downtown area, this rulemaking. following limitations: particularly traffic using the Ohio Street The Coast Guard will continue to (1) On Saturdays and Sundays and Congress Street Parkway bridges, it consider all comments previously openings to accommodate two transits is the Coast Guard’s impression that the received and all comments submitted in would be available each day, if impact is not as immediate or as severe response to this notice of proposed requested 20 hours in advance of the as the impact of opening the bridges on rulemaking. It is not necessary to intended time of passage, without the Chicago River since, other than the resubmit comments or data previously regard to the number of vessels. two bridges mentioned, they are not filed. Comments are desired that (2) Weekday daytime openings, with primary arteries or are not in close specifically address the methodology no minimum flotilla requirement, proximity to the Chicago Loop. As 39292 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules discussed above, whether a recreational accurate traffic count for this bridge the regulation to provide for scheduled vessel’s transit originates on or prior to the public hearing. While the openings to reduce motor vehicle traffic terminates on either the North or South Coast Guard has received additional delays and congestion, where practical branch, and involves some or all of the data from the City, the Coast Guard has and feasible. The Coast Guard construes bridges on either branch, the transit not yet analyzed this new information the statute as requiring only a common invariably involves opening all of the in light of the entire record. The Coast sense evaluation, on a broad level, of the bridges on the Chicago River. If a Guard will consider these newly impact of bridge openings on vehicular beneficial and balanced approach is to submitted data, any revised data, and traffic and the reasonable expectations be taken in modifying the existing any comments on the accuracy of those of the owners and operators of vessels regulations, the changes must address data, before action on a final rule. The to be able to use the navigable waters of these bridges. In addition, it is the 1994 and 1995 data were extrapolated to the United States. In this instance the position of the Coast Guard that if a the other downtown bridges. Based on Coast Guard believes that an appropriate regulation can be developed that this analysis, it is conservatively balance requires some restriction, provides a reasonable balance between estimated that in excess of 3,000 beyond the current rush hour the needs of land and vessel traffic for vehicles are potentially affected by each limitations, on the right of vessel the bridges on the Chicago River, a sequence of bridge openings on owners and operators to request logical extension of those rules to the weekdays between the hours of 10:15 openings. The balance must reflect North and South branches would be a.m. to 3:15 p.m. vehicular traffic needs and the appropriate. The average opening cycle for a bridge peculiarities of the Chicago Loop and The second step was to ascertain takes 8 minutes for a single vessel Must also accommodate the needs of whether there was a demonstrable need transit and 10 minutes for a flotilla of boaters. A proper balance is not one that to change the existing regulations. The 10 or more vessels. There was no continues on demand openings except traffic data presented by the City were significant variation in the opening time during rush hours. The voluntary based on directional traffic counts, associated with the number of vessels in restraint and scheduling efforts taken at fifteen minute intervals, 24 a flotilla. The average time for vehicle practiced by the boatyards and boaters hours per day, at certain bridges. traffic to return to normal after an do not cure the defects in the existing Normal traffic flow counters and opening was 4 minutes, although there permanent rule. Since there are no methodologies were used to record was substantial variation between market forces that are operable to limit traffic activity for one week in the fall bridges which appears related to the or control exercise of the right to of 1994 and two weeks in the spring of volume of traffic on a particular bridge. demand bridge openings, the Coast 1995. The data showed that downtown From these data the Coast Guard Guard concluded that revision of the Chicago traffic does not follow a typical concluded that the existing permanent existing rule was appropriate if a urban traffic pattern. Rather than traffic rule does not strike a reasonable balance practical and feasible method of levels increasing during the morning between the needs of vehicular traffic scheduling could be devised. rush hour, decreasing during midday, and the needs of recreational boaters. The third step was to analyze the and increasing again during the evening The existing rule requires the available data to determine if there is a rush hour, the traffic increased in the drawbridges to be opened, on demand, practical and feasible way to schedule morning, then declined slightly, but as many times as recreational boaters or limit openings that would help remained high until early evening. want, within specified times. Other than reduce vehicle traffic delays and There was no significant variation in the the rush hour restrictions, the rule does congestion on the roads and highways traffic patterns or volumes between the not provide for regularly scheduled served by the bridges on the Chicago two periods. openings and the data indicate that River. To do this, the Coast Guard Although the traffic counts do not openings have the potential for affecting analyzed available data from 1990 cover the full boating season, the Coast a large number of vehicles during through July 5, 1995 concerning vessel Guard has no reason to believe that periods of heavy traffic. transits of the Chicago River, there is substantially more or less There is no set formula for balancing concentrating on those transits that took vehicle traffic during the summer the burden on vehicular traffic against place on weekdays. Data on several months. Chicago traffic does not appear the burden on marine traffic. The Bridge years of vessel traffic levels were to vary appreciably on a seasonal basis. Administration Manual indicates that provided by the City of Chicago, The study counted traffic during 1994 the length of delay caused by a bridge contained in their Drawbridge Study or on the Lake Shore Drive, Michigan opening, by itself, does not justify previously furnished to the Coast Guard. Avenue, Wells Street and LaSalle Street restricting bridge openings. There is The number of vessels requesting bridges. In 1995 the study counted sound reason for this, since the amount transit each year ranged from a low of traffic on the Lake Shore Drive, of delay caused by a bridge opening can 461, in the spring of 1992, to a high of Michigan Avenue, Clark Street and be the result of many factors, including 662 in the fall of 1991. Of these, the Dearborn Street Bridges. It was some within the control of the bridge number of vessels transiting on determined that the location of the owner, from initial design of the bridge weekdays ranged from a high of 207 in traffic counter on Lake Shore Drive was through current maintenance and the spring of 1990 to a low of 78 in the not in the best location to provide operational practices. On heavenly spring of 1993. Prior to 1993, accurate traffic data for the bridge, since traveled roads the delay to people in approximately one-third of the vessel a substantial amount of traffic could exit vehicles will invariably exceed the transits occurred on weekdays. In 1994 before crossing the bridge, and some delay to people on recreational vessels, and 1995 the percentage of weekday traffic may have been counted that did unless the time between required transits decreased to 25% or less. It is not cross the bridge. In lieu of openings is extremely long. Any attempt noted that the data were influenced by disregarding the traffic on this major to measure and weigh the value of the various restrictions in place since artery entirely, the volumes recorded for waiting time to persons in vehicles and 1993, including the temporary deviation Lake Shore Drive were reduced by half compare it to the value of unrestricted in effect from April 15, 1995 to May 18, for purposes of this proposed rule. The scheduling to boaters is misleading. As 1995, and by the voluntary cooperative City has been requested to provide an noted previously, the statute requires scheduling arranged between the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39293 boatyards and the City that repeatedly expressed by boating which end at 6:30 p.m. Weekend traffic accommodated a substantial majority of interests. Wednesday morning was levels are lower than weekday levels, vessel transits on weekends. These selected based on the pattern existing in with the lowest levels occurring before restraints favored flotillas of between 5 the absence of restrictions and to 1 p.m. and 25 vessels on a run. Data available equalize the periods when vessels not In order for weekday daytime for spring transits in 1990 and 1991, traversing in flotillas of five or more openings on the Chicago River to be where no restrictions were in effect, could be denied passage. On any day least disruptive to vehicular traffic, the indicate that approximately 75% of the except Tuesdays and Thursdays, a runs should start at 10 a.m. or as soon vessels transiting on weekdays did so in single vessel would be able to transit the thereafter as practical. The first bridge flotillas of 5 or more. Less than 100 Chicago River at some point during the would open at that time, with all other vessels out of a total of 399 transited day. This, the Coast Guard believes, bridges following in sequence. Each singly or in flotillas of less than 5 reasonably accommodates the expressed bridge should be open as the vessel or vessels, yet these vessel transits need for opportunities to secure lead vessel in a flotilla approaches, so accounted for approximately two-thirds midweek repairs to vessels and return to that continuous movement of the of the weekday openings. Lake Michigan. The rule provides for vessel(s) can be maintained. Due to the Based on the data indicating that openings at any time for emergencies, proximity of the bridges, it may be approximately one-quarter of the vessels and nothing in the rule precludes the necessary to have more than one bridge utilizing daytime weekday openings are City from responding to other requests. open at a time. For transits inbound causing two-thirds of these openings, The boatyards and boaters have urged from Lake Michigan, bridges on the the Coast Guard believes that some maximum flexibility in arranging and North or South branches would restrictions on the number of daytime scheduling flotillas. The voluntary continue this sequential opening weekday openings that these vessels can scheduling practices agreed to by the pattern, depending on the destination of request would help reduce traffic delays City and the boatyards during recent the vessel(s). For transits originating on and congestion. It also appears that the years was discussed during the the North or South branches, it will be use of flotillas is a practical and feasible negotiated rulemaking sessions and the necessary for the party requesting the means of providing for a large majority possibility of including provisions in run and the City to agree on the time for of the transits necessary to provide for the regulations that would provide starting the run in order to have the the reasonable needs of navigation. It flexible arrangements for flotillas was vessel(s) arrive at the Franklin Street does not appear that providing on considered. The Coast Guard has bridge as close to 10 a.m. as practical. demand openings for single vessels on adopted the concept of encouraging the Outbound transits will occur after 10 each weekday is necessary to use of flotillas to limit the number of a.m. due to the rush hour restrictions on accomodate the reasonable needs of openings required by proposing to certain bridges on the North and South navigation. The spring, 1995, breakout require openings for flotillas of five or branches. This approach, which does season appears to confirm the more vessels. The Coast Guard has also not specify the exact time each bridge practicality of using flotillas. There were adopted the practice of allowing the will open, is different from the usual 69 openings during the period from scheduling of these flotillas to be as drawbridge regulatory scheme but is April 15 to July 5. Of these, 41 were for agreed to between the City and the based on the systems approach taken in flotillas of five or more vessels. Another boatyards. The proposed rule does not this rulemaking. Comments are 14 were for groups of from two to four restrict openings for vessels transiting in vessels. Only 14 were for single vessels, flotillas of five or more, except for specifically requested on the feasibility of which 9 were on weekdays. requiring advance notice and of this approach and any problems that A review of the data showed that the maintaining the existing rush hour it may cause. greatest number of outbound vessels closure times; however, the proposed The fifth and final step was to during the weekdays in April and May rule does not schedule these openings. determine whether requiring advance 1990 and 1991 occurred on Wednesday. Thus, the proposed rule provides the notice of a requested transit is Traditionally, Wednesday had been the flexibility urged by the boatyards and appropriate and, if so, how much day most used for outbound vessel boaters. As discussed later, the City’s advance notice should be provided. The movements prior to 1992. In 1994, a countervailing need for predictability of bridges are not manned continuously change to Tuesday and Thursday schedules and time to mobilize bridge and, if the rule provides for restricted occurred after a temporary deviation of opening teams is provided by proposing openings, it would be extremely the drawbridge regulation was to require longer advance notice of a burdensome to require all the bridges to implemented. In 1995, the greatest requested opening. be manned at all times. Due to the city’s number of outbound vessel movements The fourth step was to determine manpower constraints, the practice has occurred on Tuesday and Thursday due whether restricting bridge operations to been for necessary personnel to move to the deviation in place and the particular times of the day would help from bridge to bridge as a vessel transit voluntary agreement to follow that reduce vehicle delay and congestion. proceeds from Lake Michigan to the schedule after it was ruled invalid by The data indicate that downtown boatyards or in the opposite direction. the court. Chicago traffic does not follow a typical The City has asserted that, at the present The rule that the Coast Guard is urban traffic pattern. Rather than traffic time, it requires assembling a crew of proposing would not require the City to levels increasing during the morning electricans and other tradesmen to open the bridges for weekday transits of rush hours, decreasing during midday, ensure the satisfactory operation of the less than five vessels except on Monday and then increasing again for the bridges. While efforts are underway to and Friday evenings and on Wednesday evening rush hours, the traffic only improve the operation of the bridges morning. Monday and Friday evenings decline slightly after morning rush there is no reason to believe that this were selected to facilitate vessel transits hours and remained high until early situation will improve in the near from Lake Michigan to the boatyards for evening. The lowest level of weekday future. Thus, the City asserts a need for repairs or servicing after a weekend of daytime traffic occurred between 10 time to assign appropriate personnel sailing, and return to the Lake before the a.m. and noon. The traffic data support and schedule their work hours to following weekend, a need that has been the existing rush hour closed periods, accommodate requested transits. 39294 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules On the other hand, the boatyards and land traffic caused by a drawbridge skewed by a failure to separate out boaters have asserted that requiring a opening is unavoidable but can be delays caused by bridge malfunctions lengthy advance notice makes mitigated by efficient operation of the and other problems unrelated to boaters. scheduling vessel transits difficult, bridges. The Coast Guard is not aware Response: The length of delays to especially when assembling a flotilla of of any standardized method of land traffic caused by individual bridge 5 or more vessels. They also assert the determining the value of delay time and opening was not a significant factor in unpredictability of single vessels current procedures require only the formulating this regulation. Regardless desiring passage for maintenance or submission of traffic count data. of whether delays to land traffic were repairs. Therefore, the Coast Guard did not attributable to mechanical or other In an attempt to accommodate these quantify delay time or assign a value to problems, the delay would not occur conflicting needs, the proposed rule it to balance land traffic and vessel unless the bridge was opened for the provides for 20 hours advance notice for transits. The proposed action should passage of vessels. The length of the weekend and Wednesday daytime reduce the number of openings and, delay was not quantified or assigned a openings and for flotillas of 5 or more therefore, the cumulative delay time of value in developing these proposed vessels. A 6 hour advance notice would pedestrians and vehicles, which could regulations. be required for evening openings. be substantial, should be reduced. 4. The letter asserts that the evidence Except for Sunday openings, these During the negotiated rulemaking of delays to emergency vehicles is not requirements should enable the City to process, a letter from the boatyard’s believable. arrange for the necessary personnel attorneys contained the following Response: The information regarding during normal business hours, either for allegations concerning deficiencies in documented cases of delays to an opening that evening or the next day, the traffic data presented by the City: emergency vehicles was requested by and would allow boaters and the 1. The letter asserted that the study the Coast Guard to verify the cases boatyards to arrange for openings on grossly overstates the delay time by reported by the City of Chicago. Impacts relatively short notice. The Coast Guard assuming each person is delayed 12 of drawbridges on emergency vehicle believes that providing boaters an minutes. response were considered, but were not opportunity to request a Sunday Response: Coast Guard regulations, a determinative factor, in developing opening, based on events occurring on policy and procedures do not require this proposed regulation. Emergency Saturday, is appropriate and not unduly data to be expressed in terms of person- land vehicles are given special burdensome for the City. hours of delay. The volume of vehicular consideration, as stated in 33 CFR The above discussion summarizes the and pedestrian traffic was considered, 117.31, which allows drawbridges to analysis, methodology, and conclusions but delay time was not a determining close for passage of emergency vehicles. of the Coast Guard in arriving at this factor in the rulemaking decision. In addition, readily available alternative proposed rulemaking. During the many Assigning a value to person-hours delay routes exist. Requiring advance notice of discussions with interested parties that appears to be even more subjective than requested opening will facilitate have occurred, certain other issues were determining the impact of bridge dispatching emergency vehicles when raised that are not determinative of the openings on vehicles. Persons delayed bridge openings occur. issues, but which still merit discussion. could be engaged in personal affairs or 5. The letter asserts that the The City expressed concern that runs on a business venture. The Coast Guard conclusion that current restrictions on would be scheduled in response to a has not relied on estimates of person- weekday daytime openings ‘‘only request and crews mobilized, but that hours of delay in formulating the achieve a small reduction in land traffic no vessels would show up. The proposed schedule of drawbridge impacts’’ and, therefore, support available data do indicate that this has openings in this rulemaking. complete elimination of weekday occurred, but the Coast Guard is unable 2. The letter asserted that, in addition daytime openings, is contradicted by the to conclude that this is a problem to the methodological error described study’s own data. requiring regulatory action. The statutes above, the placement of vehicle Response: The Coast Guard reviewed addressing drawbridge operation are counters has led to a significant the data and has found that there is generally directed at the responsibities overstatement of bridge traffic. evidence of heavy vehicular traffic of the bridge owner and provide Response: The location of the traffic during most of the weekday hours, not penalties for not opening the bridge counter on Lake Shore Drive was just during rush hours. The proposed when required to do so. No specific identified as being susceptible to rule is based on evidence that there is penalties are provided under these recording traffic that did not cross the a drop in weekday land traffic between statutes penalizing the vessel operator drawbridge over the Chicago River. The 10 a.m. and noon. Bridge openings who does not show up for a requested level of traffic recorded at the Lake during that period would therefore have opening, although there are prohibitions Shore Drive counting station and the least impact on land traffic, against requesting unnecessary projected for crossing the bridge may be especially if the number of weekday openings. The Coast Guard will monitor subject to some inaccuracies. However, openings is minimal. The proposed this situation and may address it in a Lake Shore Drive Bridge is but one of 10 regulation provides that single vessels separate rulemaking if it appears drawbridges on the main branch of the or flotillas of less than five vessels may necessary. Chicago River. Although the data from request passage only on Wednesday in The data on pedestrian delays caused Lake Shore Drive may be inaccurate, this time period. by drawbridge openings were data from other bridges were considered The City asserts that there should be informative but did not contribute accurate. As previously stated, the data no continuation of on demand openings significantly to the Coast Guard’s pertaining to Lake Shore Drive were and expressed a desire for consistency decisions in the formulation of this discounted for the purpose of and predictability to schedule bridge proposed regulation. The amount of developing this proposal and the City crews. The proposed restrictions on the delay to vehicles and the extent of the has been asked to provide more accurate days and times that openings can be vehicle ‘‘backup’’ also did not data in time for the public hearing. requested for vessels not transiting in a contribute significantly to the 3. The letter assets that, in addition to flotilla of five or more, and the formulation of this proposal. Delay to the above errors, the traffic data are notification requirements, are designed Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39295 to accommodate those positions. The less than 5, should be substantially proposed regulation will substantially City also expressed major concerns reduced. The number of these weekday advance the governmental purpose of about traffic and business disruption runs each year has been approximately balancing the needs of land attributable to drawbridge openings. 60. If all these runs were eliminated, transportation and the navigational The data provided give evidence of and no additional flotilla runs were rights of recreational boaters. The patterns showing decreased traffic added, the City could save proposed provisions for supplemental Saturday and Sunday mornings, approximately $400,000 per year. Since openings, as required, for flotillas of 5 weekday mornings near the 10 a.m. single vessel transits could still occur on or more vessels and the provisions hour and during the evenings after 6:30 5 days a week, not all these runs will ensuring access by all vessels on 5 out p.m. This proposal attempts to schedule be eliminated. Assuming these runs will of the 7 days in each week should openings to closely track the times be reduced 50%, the savings to the City minimize the impact on the boatyards. when traffic and business disruption would be under $200,000 per year. The Coast Guard does not believe that would be the least. However, the rule allows an unlimited the proposed regulations have The boatyards’ major concerns, as number of flotilla runs to be scheduled, significant taking implications. expressed through their comments, were and it is impossible to predict how However, comments and data on this that due to the unpredictable needs and many will be actually utilized. issue are specifically requested. desires of their customers they needed Available data indicate that there are Small Entities to be able to transit the river every day. approximately 90 total runs per year. the proposed rule addresses these Assuming that flotilla runs increase by The Regulatory Flexibility Act concerns by allowing for daily transit 10 per year due to the limitations on requires an assessment of whether the for flotillas of 5 or more vessels, with single vessel transits, the cost to the City proposed rule would have a significant advance notice. The boatyards said they would be approximately $70,000. Thus, economic impact on a substantial needed access for repair work and to the net savings to the City are estimated number of small entities. For this allow growth. Access by even a single to be approximately $130,000 per year. proposal, the Coast Guard considers any vessel 5 days a week, with advance The boatyards have asserted that business employing less than 500 notice, addresses those needs. Boatyards restricting openings of the drawbridges persons to be a small entity. The four also expressed a desire for some will adversely affect their business, boatyards remaining on the North and combination of predictability and because boaters will be unwilling to put South branches of the Chicago River are flexibility. the notice requirements and up with the restrictions and will utilize small businesses and they have asserted supplementary openings in the proposal boatyards in locations other than on the that restricting the drawbridge openings are designed to meet those concerns. Chicago River. Information submitted to will adversely affect their businesses. A major innovation in this rule is the the Coast Guard indicates that the The proposed rule is not seen as having addition of supplemental opening times. number of vessels using the affected a significant adverse economic effect on These unlimited openings, governed by boatyards has decreased and that any other business. a 20 hour notice requirement and a utilizing alternative boatyards has As discussed above, the Coast Guard flotilla size of at least five vessels, allow increased. Some of this displacement is has carefully considered the boatyards’ the boatyards to schedule runs up or asserted to have been caused by the views and has proposed unlimited down the river as necessary: weekday recent restrictions on drawbridge supplemental openings to give the daytime with rush hour limitations, openings. Other displacements may be boatyards considerable flexibility to weekends, or evenings. attributable to the inherent difficulties satisfy their customers’ needs. The five- Under this regime the boatyards in transiting numerous drawbridges to boat minimum for flotillas is based on would have a great amount of flexibility get to the boatyards. Some loss of an analysis of the data on past voluntary to meet the needs of their customers and business may be due to different practices, which indicated that this grow, while at the same time, the notice reasons, such as development of limit is feasible. The rule does restrict and flotilla requirements would give the alternative facilities or personal choice single vessel passages, but does not City enough lead time to meet its need of the boat owner. The Coast Guard has prohibit them. The restrictions are for predictability in scheduling the received assertions that the net income considered to be the minimum complex series of openings necessary to of the boatyards has been substantially necessary to achieve the intent of the accommodate a transit of the Chicago reduced by past restrictions on bridge statute. River system. openings. This reduction appears to be Therefore, the Coast Guard certifies When looking at the spring 1995 a transfer of economic costs and under 605(b) of the Regulatory period of cooperation between the benefits, and not an increased cost to Flexibility Act (5 U.S.C. 601 et seq.) that competing interests, this proposed rule the boat owner. The Coast Guard does this proposal, if adopted, will not have is designed to accommodate the needs not have an estimate of the dollar value a significant economic impact on a expressed by the affected parties. of this transfer and invites comment on substantial number of small entities. the economic impact of the proposed The Coast Guard specifically request Regulatory Evaluation rules. comments on the impacts of the This rule is not considered to be a The Coast Guard has considered proposed rule on small entities and will significant rulemaking activity under whether the proposed restrictions on consider any information provided Executive Order 12886 and is not bridge openings constitutes a ‘‘taking’’ before promulgating the final rule. significant under the Department of under the Fifth Amendment to the Transportation Regulatory Policies and Constitution, as discussed in E.O. 12630 Collection of Information Procedures (44 FR 11040; February 26, and the Attorney General’s Guidelines The proposed rule contains no 1979). implementing that Order. The proposed collection of information requirements The economic impact of the proposed regulation does not directly regulate the under the Paperwork Reduction Act (44 rule cannot be accurately determined. use of the boatyards’ property, but it has U.S.C. 3501 et seq.). No reports or Its primary impact is on weekday been asserted that the restrictions will information would be submitted to the openings of the bridges. The number of adversely affect their profit. It is the government. As is common with all openings for single vessels, or groups of Coast Guard’s position that the other drawbridge regulations, persons 39296 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules desiring passage of a vessel have to North Branch of the Chicago River north (1) From April 1 through November make their requests known to the of the Ohio Street bridge to and 30— operator of a drawbridge, frequently including North Halsted Street, and (i) The draws shall be scheduled to some time in advance. This advance bridges across the South Branch of the open, before 1 p.m., twice on Saturdays notice is normally a single phone call. Chicago River north of South Halsted and twice on Sundays if requests for Advance notice has been required under Street to, but not including Roosevelt passage have been received at least 20 the existing rule for drawbridges on the Road, shall open on signal; except that, hours in advance. If the bridges have Chicago River and a simple verbal from Monday through Friday from 7 been authorized to remain closed for request for bridge openings would a.m. to 8 a.m. and 5:30 p.m. to 6:30 portions of a Saturday or Sunday to continue to be required under the p.m., the draws need not open for the accommodate special events, openings proposed rules. passage of commercial vessels. shall be scheduled after 1 p.m. as (iii) The draws of the bridges across necessary to provide two openings. Federalism the North Branch of the Chicago River (ii) The draws shall open on Monday The Coast Guard has analyzed this north of North Halsted Street and the and Friday, after 6:30 p.m. Each opening action under the principles and criteria South Branch of the Chicago River south requires notice that has been given at contained in Executive Order 12612 and of South Halsted Street shall open on least 6 hours in advance of a vessel’s has determined that this proposal, if signal; except that, from Monday requested time of passage. adopted, will not have sufficient through Friday from 7 a.m. to 8 a.m. and (iii) The draws shall open on federalism implications to warrant the 5:30 p.m. to 6:30 p.m. the draws need Wednesdays at 10 a.m., or as soon preparation of a Federalism Assessment. not be opened for the passage of thereafter as practical, if a request for Environment commercial vessels. passage has been given at least 20 hours (iv) Subject to the restrictions in in advance. The Coast Guard considered the paragraphs (a)(1)(i) through (a)(1)(iii) of (iv) The draws shall open at times in environmental impact of this rule and this section, the draws of the Randolph addition to those listed in paragraphs concluded that, under section 2.B.2.g.5 Street, Cermak Road, and Loomis Street (b)(1)(i) through (b)(1)(iii) of this of Commandant Instruction M16475.1B, bridges across the South Branch of the section, after notice has been given at this rule is categorically excluded from Chicago River, shall open on signal. The least 20 hours in advance requesting further environmental documentation. draws of the following bridges in passage for a flotilla of at least five A Categorical Exclusion Determination Chicago shall open on signal if tended vessels. However, the bridges need not statement has been prepared and placed or within 30 minutes after notice is open during those periods of time in the docket. given to the City of Chicago Bridge specified in paragraphs (a)(1) (i), (ii) and List of Subjects in 33 CFR Part 117 Desk: (iii) of this section. (2) From December 1 through March Bridges. South Branch 31, the draws of the highway bridges For reasons set out in the preamble, Washington Street across the Chicago River, the North the Coast Guard amends 33 CFR part Madison Street Branch of the Chicago River, and the 117 as follows: Monroe Street South Branch of the Chicago River need Adams Street open on signal only if at least 48 hours PART 117ÐDRAWBRIDGE Jackson Boulevard notice is given. However, the bridges OPERATING REGULATIONS Van Buren Street need not open during those periods of 1. The authority citation for part 117 Congress Street (Eisenhower time specified in paragraphs (a)(1) (i), continues to read as follows:. Expressway) (ii) and (iii) of this section. Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 Harrison Street (3) Paragraph (b) of this section CFR 1.05–1(g). Roosevelt Road applies to the following listed bridges: 2. Section 117.391 is revised to read Eighteenth Street Main Branch as follows: Canal Street South Halsted Street Lake Shore Drive § 117.391 Chicago River. West Fork of the South Branch Columbus Drive The draws of the bridges operated by Michigan Avenue the City of Chicago shall operate as South Ashland Avenue Wabash Avenue follows: South Damen Avenue State Street (a) For commercial vessels: Chicago River, North Branch Dearborn Street (1) From April 1 through November Clark Street 30— Grand Avenue LaSalle Street (i) The draws of the bridges across the Chicago Avenue Wells Street Chicago River from its mouth to the North Halsted Street Franklin-Orleans Street junction of the North and South Ogden Street Branches, across the South Branch from Division Street South Branch the junction to and including the (2) From December 1 through March Lake Street Roosevelt Road, and the Kinzie and 31, the draws of the highway bridges Randolph Street Ohio Street bridges across the North across the Chicago River, the North Washington Street Branch shall open on signal; except that, Branch of the Chicago River, and the Monroe Street from Monday through Friday from 7:30 South Branch of the Chicago River shall Madison Street a.m. to 10:30 a.m., and 4 p.m. to 6:30 open on signal if at least 12 hours notice Adams Street p.m., the draws need not be opened for is given. However, the bridges need not Jackson Boulevard the passage of commercial vessels. open during those periods of time Van Buren Street (ii) The draws of the bridges across specified in paragraphs (a)(1) (i), (ii) and Eisenhower Expressway the North Branch of the Chicago River (iii) of this section. Harrison Street at Grand Avenue, the bridges across the (b) For recreational vessels: Roosevelt Road Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39297 18th Street methods, in conjunction with the Division, U.S. Environmental Protection Canal Street protocols, would also improve EPA’s Agency, Research Triangle Park, North South Halsted Street ability to enforce State regulations to Carolina 27711, telephone (919) 541– South Loomis Street reduce volatile organic compounds 4825. South Ashland Avenue (VOC) emissions in ozone SUPPLEMENTARY INFORMATION: The nonattainment areas. North Branch proposed regulatory text of the proposed DATES: Comments. Comments must be rule is not included in this Federal Grand Avenue received on or before October 2, 1995. Register notice, but is available in Ohio Street Public Hearing. If anyone contacts Docket No. A–91–70 or by written or Chicago Avenue EPA requesting to speak at a public telephone request from the Air Docket North Halsted Street hearing by August 16, 1995, hearing will (see ADDRESSES). If necessary, a limited (c) The following bridges need not be be held on August 30, 1995, beginning number of copies of the Regulatory Text opened for the passage of vessels: The at 10:00 a.m. Persons interested in are available from the EPA contact draws of the North Avenue, Cortland attending the hearing should call Ms. persons designated earlier in this notice. Street, Webster Avenue, North Ashland Betty Sorrell at (919) 541–5582 to verify This Notice with the proposed Avenue, Chicago and Northwestern that a hearing will be held. regulatory language is also available on Railroad, North Damen Avenue, and Request to Speak at Hearing. Persons the Technology Transfer Network Belmont Avenue bridges across the wishing to present oral testimony must (TTN), one of EPA’s electronic bulletin North Branch of the Chicago River, and contact EPA by August 16, 1995. boards. The TTN provides information the draws of the North Halsted St. ADDRESSES: Comments. Comments and technology exchange in various bridge, the Ogden Ave. bridge, the should be submitted (in duplicate if areas of air pollution control. The Division St. bridge and the Chicago, possible) to Public Docket No. A–91–70 service is free except for the cost of the Milwaukee, St. Paul and Pacific at the following address: U.S. phone call. Dial (919) 541–5742 for up Railroad bridge across the North Branch Environmental Protection Agency, Air to a 14400 bps modem. If more Canal. and Radiation Docket and Information information on TTN is needed, call the (d) The opening signal for all Chicago Center, Mail Code: 6102, 401 M Street, HELP line at (919) 541–5384. River bridges is three short blasts or by SW., Washington, DC 20460. The I. Summary shouting, except that four short blasts is Agency requests that a separate copy On February 10, 1995, EPA released a the opening signal for the Chicago and also be sent to the contact person listed document entitled ‘‘Guidelines for Northwestern railroad bridge near below. The docket is located at the Determining Capture Efficiency’’ which Kinzie Street and the Milwaukee Road above address in Room M–1500 recommended the use of a permanent bridge near North Avenue and five short Waterside Mall (ground floor), and may total enclosure (PTE), temporary total blasts is the opening signal for the Lake be inspected from 8:30 a.m.–12 p.m. and enclosure (TTE), or a building enclosure Shore Bridge when approaching from 1:30 p.m.–3:00 p.m., Monday through for determining CE. The EPA is the north. Friday. The proposed regulatory text proposing to add seven test methods, (e) The emergency provisions of and other materials related to this needed to carrying out the § 117.31 apply to the passage of all rulemaking are available for review in recommended protocols, to appendix M vessels and the operation of all bridges the docket or copies may be mailed on in 40 CFR part 51. The methods being on the Chicago River. request from the Air Docket by calling proposed today can be used by States in G.F. Woolever, 202–260–7548. A reasonable fee may be developing CE protocols for regulated Rear Admiral, U.S. Coast Guard, Commander, charged for copying docket materials. coating and printing facilities Ninth Coast Guard District. Public Hearing. If anyone contacts employing a VOC capture system and [FR Doc. 95–18976 Filed 7–28–95; 2:49 am] EPA requesting a public hearing, it will control device. The use of alternative be held at EPA’s Emission Measurement BILLING CODE 4910±14±M methods and protocols is discussed in Laboratory, Research Triangle Park, the guidance document mentioned North Carolina. Persons interested in above. ENVIRONMENTAL PROTECTION attending the hearing or wishing to Each of the EPA recommended AGENCY present oral testimony should notify Ms. protocols relies on the use of an Betty Sorrell (MD–19), U.S. enclosure to contain the VOC emitted 40 CFR Part 51 Environmental Protection Agency, from a process. Either a gas/gas protocol Research Triangle Park, North Carolina (gas-phase measurements only) or a [FRL±5269±1] 27711, telephone number (919) 541– liquid/gas protocol (both liquid- and 5582. gas-phase measurements) would be Preparation, Adoption, and Submittal Docket. A Docket A–91–70, of State Implementation Plans; considered acceptable in conjunction containing materials relevant to this with the construction of a TTE around Appendix M, Test Methods 204, 204A± rulemaking, is available for public 204F the process. The gas/gas or liquid/gas inspection and copying between 8:30 protocol could also be employed in AGENCY: Environmental Protection a.m.–12 p.m. and 1:30 p.m.–3:00 p.m., situations where the building or room Agency (EPA). Monday through Friday, at the EPA’s around the process meet the Air Docket Section Mail Code: 6102, ACTION: Proposed rule. requirements in proposed Method 204 Room M–1500, Waterside Mall (ground for a TTE. SUMMARY: The EPA is proposing to add floor), 401 M Street, SW., Washington An owner or operator installing a PTE seven methods to appendix M of 40 CFR DC 20460. A reasonable fee may be meeting the requirements in proposed part 51 for capture efficiency (CE) charged for copying. Method 204 would not be required to testing to assist States in adopting FOR FURTHER INFORMATION CONTACT: perform CE testing, because the CE enforceable CE measurement protocols Candace Sorrell, Source would be assumed to be 100 percent. into their State implementation plans Characterization Group A (MD–19), Testing of the destruction or removal (SIP’s) for ozone. These proposed Emissions, Monitoring, and Analysis efficiency of the control device would 39298 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules still be required in order to provide a (1) Have an annual effect on the will not be significantly or uniquely measure of the overall control efficiency economy of $100 million or more or affected by this rule, the Agency is not of the total emission control system. adversely affect in a material way the required to develop a plan with regard economy, a sector of the economy, to small governments. II. The Rulemaking productivity, competition, jobs, the E. Regulatory Flexibility Act This rulemaking proposes to add environment, public health or safety, or seven methods for measuring CE to State, local, or tribal governments or The Regulatory Flexibility Act (RFA) appendix M of 40 CFR part 51 to communities; of 1980 requires the identification of provide methods that States can use in (2) Create a serious inconsistency or potentially adverse impacts of Federal their SIP’s. otherwise interfere with an action taken regulations upon small business entities. The RFA specifically requires III. Administrative Requirements or planned by another agency; (3) Materially alter the budgetary the completion of an analysis in those A. Public Hearing impact of entitlements, grants, user fees, instances where small business impacts A public hearing will be held, if or loan programs, or the rights and are possible. This rulemaking does not requested, to discuss the proposed obligation of recipients thereof; or impose emission measurement amendment in accordance with section (4) Raise novel legal or policy issues requirements beyond those specified in 307(d)(5) of the Clean Air Act. Persons arising out of legal mandates, the the current regulations, nor does it wishing to make oral presentations President’s priorities, or the principles change any emission standard. Because should contact EPA at the address given set forth in the Executive Order. this rulemaking imposes no adverse in the ADDRESSES section of this Pursuant to the terms of Executive economic impacts, an analysis has not preamble. Oral presentations will be Order 12866, it has been determined been conducted. limited to within 15 minutes each. Any that this rule is not ‘‘significant’’ Pursuant to the provision of 5 U.S.C. member of the public may file a written because none of the listed criteria apply 605(b), I hereby certify that the statement with EPA before, during, or to this action. Consequently, this action promulgated rule will not have an within 30 days after the hearing. Written was not submitted to OMB for review impact on small entities because no statements should be addressed to the under Executive Order 12866. additional costs will be incurred. Air Docket Section address given in the D. Unfunded Mandates Act F. Paperwork Reduction Act ADDRESSES section of this preamble. A verbatim transcript of the hearing Section 202 of the Unfunded The rule does not change any and written statements will be available Mandates Reform Act of 1995 information collection requirements for public inspection and copying (‘‘Unfunded Mandates Act’’) (signed subject of Office of Management and during normal working hours at EPA’s into law on March 22, 1995) requires Budget review under the Paperwork Air Docket Section in Washington, DC that the Agency prepare a budgetary Reduction Act of 1980, 44 U.S.C. 3501 (see ADDRESSES section of this impact statement before promulgating a et seq. preamble). rule that includes a Federal mandate that may result in expenditure by State, G. Statutory Authority B. Docket local, and tribal governments, in The statutory authority for this The docket is an organized and aggregate, or by the private sector of proposal is provided by section 110 of complete file of all the information $100 million or more in any one year. the Clean Air Act, as amended: 42 considered by EPA in the development Section 204 requires the Agency to U.S.C., 7410. of this rulemaking. The docket is a establish a plan for obtaining input from Dated: July 25, 1995. dynamic file, since material is added and informing , educating , and advising Carol M. Browner, throughout the rulemaking any small governments that may be The Administrator. significantly or uniquely affected by the development. The docketing system is [FR Doc. 95–18994 Filed 8–1–95; 8:45 am] intended to allow members of the public rule. BILLING CODE 6560±50±P and industries involved to identify and Under section 205 of the Unfunded locate documents readily so that they Mandates Act, the Agency must identify may effectively participate in the and consider a reasonable number of 40 CFR Parts 52 and 81 rulemaking process. Along with the regulatory alternatives before statement of basis and purpose of the promulgating a rule for which a [NC72±1±6953b; FRL±5258±5] proposed and promulgated test method budgetary impact statement must be Approval and Promulgation of revisions and EPA responses to prepared. The agency must select from Implementation Plans and Designation significant comments, the contents of those alternatives the least costly, most of Areas for Air Quality Planning the docket, except for interagency cost-effective, or least burdensome Purposes; State of North Carolina review materials, will serve as the alternative that achieves the objectives record in case of judicial review of the rule, unless the Agency explains AGENCY: Environmental Protection [Section 307(d)(7)(A)]. why this alternative is not selected or Agency (EPA). the selection of this alternative is ACTION: Proposed rule. C. Executive Order 12866 inconsistent with law. Under Executive Order 12866 (58 FR Because this proposed rule is SUMMARY: The EPA proposes to approve 51735 (October 4, 1993)), the Agency estimated to result in the expenditure by the state implementation plan (SIP) must determine whether a regulatory State, local, and tribal governments or revision submitted by the State of North action is ‘‘significant’’ and therefore the private sector of less than $100 Carolina for the purpose of subject to Office of Management and million in any one year, the Agency has redesignating the areas of Charlotte and Budget (OMB) review and the not prepared a budgetary impact Raleigh/Durham to attainment for requirements of this Executive Order. statement or specifically addressed the carbon monoxide (CO). In the final rules The Order defines ‘‘significant selection of the least costly, most cost- section of this Federal Register, the EPA regulatory action’’ as one that is likely effective, or least burdensome is approving the State’s SIP revision as to result in a rule that may: alternative. Because small governments a direct final rule without prior proposal Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39299 because the Agency views this as a 40 CFR Part 61 List of Subjects in 40 CFR Part 61 noncontroversial revision amendment Environmental Protection, Air and anticipates no adverse comments. A [FRL±5269±9] pollution control, Intergovernmental detailed rationale for the approval is set relations, Radiation protection. forth in the direct final rule. If no Interim Approval of Delegation of Authority: 42 U.S.C. 7412. adverse comments are received in Authority; National Emission Dated: July 20, 1995. response to that direct final rule, no Standards for Hazardous Air Chuck Clarke, further activity is contemplated in Pollutants; Radionuclides; Washington Regional Administrator, Region 10. relation to this proposed rule. If EPA receives adverse comments, the direct AGENCY: Environmental Protection [FR Doc. 95–18988 Filed 8–1–95; 8:45 am] final rule will be withdrawn and all Agency (EPA). BILLING CODE 6560±50±P public comments received will be ACTION: Proposed rule. addressed in a subsequent final rule 40 CFR Part 180 based on this proposed rule. The EPA SUMMARY: EPA proposes to grant interim will not institute a second comment delegation of authority to the state of [PP 8E3574/P620; FRL±4963±5] period on this document. Any parties Washington to implement and enforce RIN 2070±AC18 interested in commenting on this two National Emission Standards for document should do so at this time. Hazardous Air Pollutants (NESHAPs) Terbufos; Pesticide Tolerance for radionuclides. The request for DATES: To be considered, comments delegation was submitted by the state AGENCY: Environmental Protection must be received by September 1, 1995. pursuant to 40 CFR 63.91 for delegation Agency (EPA). ACTION: Proposed rule. ADDRESSES: Written comments should of federal standards, as promulgated. In the final rules section of this Federal be sent to Ben Franco, EPA Region 4, SUMMARY: EPA proposes to extend the Register, EPA is granting interim Air Programs Branch, 345 Courtland time-limited import tolerance for approval of the state’s request for Street NE, Atlanta, Georgia, 30365. combined residues of the insecticide/ delegation as a direct final rule without Copies of the redesignation request and nematicide terbufos and its prior proposal because the Agency the State of North Carolina’s submittals cholinesterase-inhibiting metabolites in views this as a noncontroversial action or on the raw agricultural commodity are available for public review during and anticipates no adverse comments. (RAC) green coffee beans for an normal business hours at the addresses EPA’s rationale for the approval is set additional 2 years. American Cyanamid listed below. EPA’s technical support forth in the direct final rule. If no Co. submitted a petition pursuant to the document (TSD) is available for public adverse comments are received in Federal Food, Drug and Cosmetic Act review during normal business hours at response to this proposed rule, no (FFDCA) requesting the proposed the EPA addresses listed below. further activity is contemplated in regulation to establish a maximum relation to this rule. If EPA receives Air and Radiation Docket and permissible level for combined residues adverse comments, the direct final rule Information Center (Air Docket 6102), of the insecticide/nematicide in or on will be withdrawn and all public U.S. Environmental Protection the commodity. Agency, 401 M Street, SW., comments received will be addressed in a subsequent final rule based on this DATES: Comments, identified by the Washington, DC 20460. proposed rule. EPA will not institute a document control number [PP 8E3574/ Environmental Protection Agency, second comment period on this action. P620], must be received on or before Region 4, Air Programs Branch, 345 Thus, any parties interested in September 1, 1995. Courtland Street NE., Atlanta, Georgia commenting on this action should do so ADDRESSES: By mail, submit written 30365. in the next 30 days. comments to: Public Response and Department of Environment, Health and Program Resources Branch, Field DATES: Comments on this proposed rule Operations Division (7506C), Office of Natural Resources, P.O. Box 29535, must be received in writing by Pesticide Programs, Environmental Raleigh, North Carolina 27626–0535. September 1, 1995. Protection Agency, 401 M St., SW., FOR FURTHER INFORMATION CONTACT: Ben ADDRESSES: Written comments should Washington, DC 20460. In person, bring Franco of the EPA Region 4 Air be addressed to Richard Poeton, EPA comments to: Rm. 1132 CM #2, 1921 Programs Branch at (404) 347–3555, ext. Region 10, AT–082, 1200 6th Avenue, Jefferson Davis Hwy., Arlington, VA 4211, and at the above address. Seattle, Washington 98191 and 22202. Information submitted as a concurrently to Allen W. Conklin, Head, comment concerning this document SUPPLEMENTARY INFORMATION: For Air Emissions and Defense Waste may be claimed confidential by marking additional information see the direct Section, Washington Department of any part or all of that information as final rule which is published in the Health, Airdustrial Center Building #5, ‘‘Confidential Business Information’’ rules section of this Federal Register. P.O. Box 47827, Olympia, Washington, (CBI). Information so marked will not be Dated: June 26, 1995. 98504–7827. Copies of the material disclosed except in accordance with Patrick M. Tobin, submitted to EPA are available for procedures set forth in 40 CFR part 2. A copy of the comment that does not Acting Regional Administrator. public inspection during normal business hours at the above locations. contain CBI must be submitted for [FR Doc. 95–18882 Filed 8–1–95; 8:45 am] inclusion in the public record. FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560±50±P Information not marked confidential Richard Poeton at (206) 553–8633. may be disclosed publicly by EPA SUPPLEMENTARY INFORMATION: See the without prior notice. All written information provided in the final action comments will be available for public which is located in the final rules inspection in Rm. 1132 at the address section of this Federal Register. given above, from 8 a.m. to 4:30 p.m., 39300 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Monday through Friday, excluding legal data considered in support of the bioaccumulating in tissues. The holidays. proposed tolerance include: percentage of phosphorylated and Comments and data may also be 1. A 1-year dog-feeding study with a nonphosphorylated metabolites submitted electronically by sending lowest-observable-effect level (LOEL) of recovered in the urine ranged from electronic mail (e-mail) to: opp- 0.015 milligram/kilogram/day (mg/kg/ nondetectable to 0.68% and from 5.6 to [email protected]. Electronic day) (the lowest dose tested) based on 18.4 percent, respectively. The comments must be submitted as an the inhibition of plasma cholinesterase predominant compound recovered in ASCII file avoiding the use of special activity. the feces was the parent. characters and any form of encryption. 2. A 4-week dog plasma The reference dose(RfD), based on the Comments and data will also be cholinesterase study with a no- plasma cholinesterase inhibition (ChE) accepted on disks in WordPerfect in 5.1 observable-effect level (NOEL) of 0.005 NOEL as defined in a 4-week dog study file format or ASCII file format. All mg/kg/day in which inhibition of (0.005 mg/kg/day) and using a safety comments and data in electronic form plasma cholinesterase activity was factor of 100 to account for the inter- must be identified by the docket number observed at the 0.015-dose level, the species extrapolation and intra-species [PP 8E3574/P620]. No Confidential highest dose tested. This represents an variability, is calculated to be 0.00005 Business Information (CBI) should be increase in the NOEL value for plasma mg/kg of body weight (bwt)/day. The co- submitted through e-mail. Electronic cholinesterase activity from 0.0013 critical study is a 1-year dog feeding comments on this proposed rule may be (which was previously considered as study in which an NOEL was not filed online at many Federal Depository the NOEL for this study), and is established. The LOEL was 0.015 mg/kg Libraries. Additional information on consistent with the LOEL observed for based on chloinesterase inhibition. The electronic submissions can be found this activity in the 1-year dog study theoretical maximum residue below in this document. referenced in item one above where contribution (TMRC) for existing FOR FURTHER INFORMATION CONTACT: By effects were also observed at the 0.015- tolerances and the current action is mail: Robert A. Forrest, Product dose level. Doses of 0.00125, 0.0025, 0.000052 mg/kg/bwt/day for the overall Manager (PM) 14, Registration Division 0.005, and 0.015 were administered in U.S. population. The current action will (7505C), Office of Pesticide Programs, the 4-week dog study. increase the TMRC by 0.000003 mg/kg/ Environmental Protection Agency, 401 3. A 1-year rat feeding study with an bwt/day (6 percent of the RfD). M St. SW., Washington, DC 20460. NOEL of 0.5 ppm (0.025 mg/kg) for This tolerance and previously Office location and telephone number: inhibition of plasma and brain established tolerances utilize a total of Rm. 219, CM #2, 1921 Jefferson Davis cholinesterase activity. 110 percent of the RfD for the overall Hwy., Arlington, VA 22202, (703)-305- 4. An 18-month mouse U.S. population and represent an 6600; e-mail: carcinogenicity study with no increase in the previously calculated [email protected]. . carcinogenic effect observed at dosages value of 42.1%. up to and including 12.0 ppm (1.7 mg/ Available information on anticipated SUPPLEMENTARY INFORMATION: EPA kg/day), which was the highest level issued rules, published in the Federal residues and/or percent of crop treated tested. was incorporated into the analysis to Register of May 19, 1993 (58 FR 29118), 5. A 2-year rat carcinogenicity study estimate the Anticipated Residue and May 26, 1993 (58 FR 30220), which with no carcinogenic effects observed at Contribution (ARC). The ARC is announced its decision to establish a doses up to and including 2.0 ppm (0.10 generally considered a more realistic time-limited tolerance for residues of mg/kg/day). the insecticide/nematicide terbufos on 6. A three-generation rat reproduction estimate than an estimate based on coffee beans for a period extending to study with a NOEL of 0.25 ppm (0.0125 tolerance-level residues and 100 percent May 19, 1995. The Agency limited the mg/kg) for reproductive effects. crop treated. The ACR from established period of time that the regulation was to 7. A rat teratology study with a NOEL tolerances and the current action is be in effect because the available rat of 0.1 mg/kg/day for developmental estimated at 0.000016 mg/kg/day and metabolism study was found to only toxicity. utilizes 32.7 percent of the RfD for the partially satisfy current guideline 8. A rabbit teratology study with a U.S. population. requirements of 85-1. NOEL of 0.25 mg/kg/day for The ARC for children, aged 1 to 6 The American Cyanamid Co. has developmental toxicity. years old, and nonnursing infants (the submitted a new rat metabolism study 9. An acute delayed neurotoxicity group most highly exposed) for the and has requested that the study in chickens, which was negative established tolerances utilize 77.3 and Administrator, pursuant to section for neurotoxic effects under the 81.0 percent of the RfD, respectively. 408(e) of the Federal Food, Drug and conditions of the study (highest dose This action will not increase exposure Cosmetic Act (FFDCA), 21 U.S.C. tested was 40 mg/kg). to these subgroups because there is no 346a(e), amend 40 CFR 180.352 by 10. Several mutagenic tests which information on coffee consumption for converting the 2-year time-limited were all negative. These include a these subgroups. import tolerance for combined residues dominant-lethal study in rats; an acute Utilizing the NOEL from the 4-week of the insecticide/nematicide terbufos in vivo cytogenic assay in rats; an Ames dog plasma cholinesterase study (0.005 and its cholinesterase-inhibiting test including metabolic activation; a mg/kg/day), the estimated margins of metabolites in or on the raw agricultural DNA repair chromosomal aberration exposure (MOEs) calculated as the acute commodity coffee beans at 0.05 part per (CHO cells); CHO/HGPRT mutation dietary risk for coffee alone is 125 for million (ppm) to permanent status. assay; and a rat hepatocyte primary four of the five subgroups indicating The designation, coffee beans, is culture/DNA repair test. that coffee per se does not present an corrected to read ‘‘green coffee beans’’ to 11. In a metabolism study with rats, unacceptable acute risk and does not reflect the current definition of this raw 69.3 to 86.3% of the dose was excreted appear to substantially increase the agricultural commodity. in the urine within 168 hours. The total acute dietary risk from terbufos. For the The scientific data submitted in the recovery of the dose ranged from 89.1 to remaining subgroup, nonnursing petition and other relevant material 98.7%. There was no evidence of infants, there is no exposure resulting have been evaluated. The toxicological terbufos or its metabolites from the green coffee bean tolerance. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39301 The Agency is currently conducting a herein, may request within 30 days after Under Executive Order 12866 (58 FR reassessment of all the established publication of this document in the 51735, Oct. 4, 1993), the Agency must tolerances for terbufos and, if warranted, Federal Register that this rulemaking determine whether the regulatory action will refine the estimated MOEs based on proposal be referred to an Advisory is ‘‘significant’’ and therefore subject to results of that reassessment. The current Committee in accordance with section all the requirements of the Executive estimated acute dietary risk for all the 408(e) of the FFDCA. Order (i.e., Regulatory Impact Analysis, established terbufos tolerances indicates Interested persons are invited to review by the Office of Management and that an unacceptable risk exists submit written comments on the Budget (OMB)). Under section 3(f), the assuming that residue levels are at the proposed regulation. Comments must order defines ‘‘significant’’ as those established tolerance and that 100 bear a notation indicating the document actions likely to lead to a rule (1) having percent of the crop is treated. The control number, [PP 8E3574/P620]. All an annual effect on the economy of $100 Agency believes that actual residues to written comments filed in response to million or more, or adversely and which the public is likely to be exposed this petition will be available in the materially affecting a sector of the are considerably less than indicated for Public Response and Program Resources economy, productivity, competition, the following reasons. Branch, at the address given above from jobs, the environment, public health or 1. Most treated crops have residue 8 a.m. to 4:30 p.m., Monday through safety, or State, local or tribal levels which are below the established Friday, except legal holidays. governments or communities (also tolerance level at the time of A record has been established for this known as ‘‘economically significant’’); consumption. rulemaking under docket number [PP (2) creating serious inconsistency or 2. Not all the planted crop for which 8E3574/P620] (including objections and otherwise interfering with an action a tolerance is established is normally hearing requests submitted taken or planned by another agency; (3) treated with the pesticide. electronically as described below). A materially altering the budgetary The nature of the residue in plants is public version of this record, including impacts of entitlement, grants, user fees, adequately understood for the use of printed, paper versions of electronic or loan programs; or (4) raising novel terbufos on coffee beans imported from comments, which does not include any legal or policy issues arising out of legal Central America. There are no animal information claimed as CBI, is available mandates, the President’s priorities, or feed items involved with this use. for inspection from 8 a.m. to 4:30 p.m., the principles set forth in this Executive Therefore, it is expected that no Monday through Friday, excluding legal Order. secondary residues in meat, milk, holidays. The public record is located in Pursuant to the terms of this poultry, and eggs will result from the Room 1132 of the Public Response and Executive Order, EPA has determined use of the pesticide on coffee beans. Program Resources Branch, Field that this rule is not ‘‘significant’’ and is An adequate analytical method, gas Operations Division (7506C), Office of therefore not subject to OMB review. chromatography with a flame Pesticide Programs, Environmental Pursuant to the requirements of the photometric detector, is available in the Protection Agency, Crystal Mall #2, Pesticide Analytical Manual, Vol. II, for Regulatory Flexibility Act (Pub. L. 96- 1921 Jefferson Davis Highway, 354, 94 Stat. 1164, 5 U.S.C. 601-612), enforcement purposes. Arlington, VA. There are currently no regulatory the Administrator has determined that Written objections and hearing actions pending against the continued regulations establishing new tolerances requests, identified by the document registration of this chemical. or raising tolerance levels or The Agency is limiting the period of control number [PP 8E3574/P620], may establishing exemptions from tolerance time that the proposed regulation is to be submitted to the Hearing Clerk requirements do not have a significant be in effect to allow the Agency to (1900), Environmental Protection economic impact on a substantial complete its in-depth reassessment of Agency, Rm. 3708, 401 M St., SW., number of small entities. A certification the current established tolerances for Washington, DC 20460. statement to this effect was published in terbufos. Upon completion of this A copy of electronic objections and the Federal Register of May 4, 1981 (46 reassessment, and, if warranted, the hearing requests filed with the Hearing FR 24950). Clerk can be sent directly to EPA at: Agency will consider the establishment List of Subjects in 40 CFR Part 180 of a permanent tolerance for green [email protected] coffee beans. Environmental protection, Residues not in excess of 0.05 part per A copy of electronic objections and Administrative practice and procedure, million in or on green coffee beans after hearing requests filed with the Hearing Agricultural commodities, Pesticides expiration of the tolerance will not be Clerk must be submitted as an ASCII file and pests, Reporting and recordkeeping considered actionable if the insecticide- avoiding the use of special characters requirements. nematicide is legally applied during the and any form of encryption. Dated: July 18, 1995. term of, and in accordance with, The official record for this provisions of the time-limited tolerance. rulemaking, as well as the public Peter Caulkins, Based on the information and data version, as described above will be kept Acting Director, Registration Division, Office considered, the Agency has determined in paper form. Accordingly, EPA will of Pesticide Programs. that the tolerance established by transfer any objections and hearing amending 40 CFR part 180 would requests received electronically into Therefore, it is proposed that 40 CFR protect the public health. Therefore, it is printed, paper form as they are received part 180 be amended as follows: proposed that the tolerance be and will place the paper copies in the PART 180Ð[AMENDED] established as set forth below. official rulemaking record which will Any person who has registered or also include all objections and hearing 1. The authority citation for part 180 submitted an application for registration requests submitted directly in writing. continues to read as follows: of a pesticide, under the Federal The official rulemaking record is the Authority: 21 U.S.C. 346a and 371. Insecticide, Fungicide, and Rodenticide paper record maintained at the address Act (FIFRA) as amended, which in ‘‘ADDRESSES’’ at the beginning of 2. In § 180.352, by revising paragraph contains any of the ingredients listed this document. (b), to read as follows. 39302 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules § 180.352 Terbufos; tolerances for M St. SW., Washington, DC 20460. In 500,000 pounds of active ingredient residues. person, deliver comments to: Rm. 1132, were used annually in the U.S. * * * * Crystal Mall #2, 1921 Jefferson Davis II. Legal Background * Highway, Arlington, VA 22202. (b) A time-limited tolerance to expire Comments and data may also be The Federal Food, Drug, and Cosmetic (date 2 years after date of publication of submitted electronically by sending Act (FFDCA) authorizes the final rule based on this proposal) is electronic mail (e-mail) to: opp- establishment by regulation of established for combined residues of the [email protected]. Electronic maximum permissible levels of insecticide/nematicide terbufos (S-[[1,1- comments must be submitted as an pesticides in or on foods. Such dimethyl)thio] methyl] O,O-diethyl ASCII file avoiding the use of special regulations are commonly referred to as phosphorodithioate) and its characters and any form of encryption. ‘‘tolerances.’’ Without such tolerances cholinesterase-inhibiting metabolites in Comments and data will also be or exemptions from tolerances, a food or on the following raw agricultural accepted on disks in WordPerfect in 5.1 containing pesticide residues is commodity: file format or ASCII file format. All considered to be ‘‘adulterated’’ under comments and data in electronic form section 402 of the FFDCA, and hence may not legally be moved in interstate Commodity Parts per must be identified by the docket number million ‘‘OPP–300393.’’ No Confidential commerce (21 U.S.C. 342). Commodities Business Information (CBI) should be subject to this proposal must no longer submitted through e-mail. Electronic contain mevinphos residues following ***** the revocation of the tolerances. To 1 comments on this document may be Coffee beans, green ...... 0.05 establish a tolerance for pesticide filed online at many Federal Depository residues in or on raw agricultural ***** Libraries. Additional information on commodities under section 408 of electronic submissions can be found in 1There are no U.S. registrations as of Au- FFDCA, EPA must find that the Unit V. of this preamble. gust 2, 1995 for the use of terbufos on the promulgation of the rule would ‘‘protect growing crop, coffee. Information submitted as a comment the public health’’ (21 U.S.C. 346a(b)). concerning this document may be To establish food additive regulations [FR Doc. 95–19004 Filed 8–1–95; 8:45 am] claimed confidential by marking any BILLING CODE 6560±50±F (FARs) to cover pesticide residues in part or all of that information as CBI. processed foods under section 409 of Information so marked will not be FFDCA, EPA must determine that the disclosed except in accordance with 40 CFR Parts 180 and 185 proposed use of the food additive will procedures set forth in 40 CFR part 2. be safe (21 U.S.C. 348). For a pesticide [OPP±300393; FRL±4967±1] A copy of the comment that does not to be sold and used in the production contain CBI must be submitted for RIN 2070±AC18 of a food crop or food animal, the inclusion in the public record. pesticide must not only have Mevinphos; Proposed Amendment and Information not marked confidential appropriate tolerances or FARs under Revocation of Tolerances may be disclosed publicly by EPA FFDCA, but must be registered under without prior notice. All written the Federal Insecticide, Fungicide, and AGENCY: Environmental Protection comments will be available for public Rodenticide Act (FIFRA, 7 U.S.C. 136 et Agency (EPA). inspection in Rm. 1132 at the Virginia seq.). FIFRA requires the registration of address given above from 8 a.m. to 4:30 ACTION: Proposed rule. pesticides that are sold and distributed p.m., Monday through Friday, excluding in the U.S. SUMMARY: This document proposes the legal holidays. This document proposes the revocation of all tolerances listed at 40 FOR FURTHER INFORMATION CONTACT: By revocation of all tolerances and FARs CFR 180.157 and 185.4200 for residues mail: Richard Dumas, Special Review (hereafter tolerances will refer to both of the insecticide mevinphos and Reregistration Division (7508W), tolerances and FARs) established under (Phosdrin) in or on all raw agricultural Office of Pesticide Programs, sections 408 and 409 of the FFDCA, 21 commodities and processed foods. EPA Environmental Protection Agency, 401 U.S.C. 301 et seq., for residues of the is initiating this action because all U.S. M St. SW., Washington, DC 20460. In pesticide mevinphos in or on all mevinphos registrations were canceled person: Special Review Branch, Third previously registered crops, as listed in on July 1, 1994. Because existing stocks floor, Crystal Station 1, 2800 Crystal 40 CFR 180.157 and 185.4200. In the of mevinphos may be used through Drive, Arlington, VA 22202, Telephone absence of the appropriate clearances November 30, 1995, the proposed number: (703) 308–8015, e-mail: under FFDCA for residues of a pesticide revocations will become effective May [email protected]. on food or feed, any agricultural 31, 1996, in order to ensure that no commodity or processed food mevinphos residue will occur on legally SUPPLEMENTARY INFORMATION: domestically produced and/or imported treated crops, whether they are raw I. Introduction into the United States found to contain mevinphos residues is adulterated agricultural commodities or processed foods. Mevinphos (Phosdrin ) is a broad- under section 402 of FFDCA. spectrum organophosphate insecticide DATES: Written comments, identified by primarily used on specialty/minor use III. Regulatory Background the docket control number OPP–300393, crops. It is used chiefly as an acaricide On June 30, 1994, when EPA was must be received on or before October and was registered for use on 25 crops prepared to issue a Notice of Intent to 2, 1995. (principally leafy greens and cole crops) Suspend all mevinphos registrations ADDRESSES: By mail, submit comments before cancellation. It has been because of acute poisoning incidents to: Public Response Program Resources produced in the U.S. by the sole involving agricultural workers, Amvac Branch, Field Operations Division technical registrant, Amvac Corporation submitted a request for voluntary (7506C), Office of Pesticide Programs, of Los Angeles, California. Prior to its cancellation. EPA accepted this request Environmental Protection Agency, 401 cancellation, approximately 200,000 to and on July 1, 1994, issued a Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39303 Cancellation Order for all mevinphos not available at this time and EPA does official rulemaking record which will registrations, effective immediately. The not anticipate the receipt of such data also include all comments submitted Agency subsequently published a because the sole technical registrant for directly in writing. The official Notice of Receipt of Request for mevinphos has voluntarily canceled all rulemaking record is the paper record Cancellation, Announcement of of its U.S. mevinphos registrations. maintained at the address in ADDRESSES Cancellation Order, and FIFRA section Based upon available data, the at the beginning of this document. 6(g) Notification for Mevinphos in the Agency has completed a preliminary Federal Register of August 1, 1994 (59 acute dietary risk assessment from VI. Other Regulatory Requirements FR 38973). The Cancellation Order was exposure to mevinphos. The assessment A. Executive Order 12866 subsequently modified on January 13, indicates a concern, particularly for Under Executive Order 12866 (58 FR 1995, to extend the distribution, sale, infants and children. EPA recognizes 51735, October 4, 1994), the Agency and use to November 30, 1995, from that the dietary risk concern may be must determine whether the regulatory December 30, 1994, for sale and diminished if interested parties submit action is ‘‘significant,’’ and therefore, distribution and February 28, 1995, for adequate exposure and/or toxicity data subject to all the requirements of the use. Notice of this amendment was that show that the preliminary Order, such as Regulatory Impact published on April 5, 1995 (60 FR assessment is not accurate. However, Assessments and review by the Office of 17357). the data base currently available to EPA Management and Budget (OMB). In is inadequate and does not appear to IV. Current Proposal section 3(f), the Order defines provide a basis to conclude that the ‘‘significant’’ as those actions likely to EPA is proposing to revoke all preliminary assessment is inaccurate. lead to a rule (1) having an annual effect mevinphos tolerances. The proposed This proposal serves as a notice to all on the national economy of $100 date of revocation is May 31, 1996. EPA parties interested in the disposition of million or more, or adversely and believes that there is little likelihood, if mevinphos tolerances. If EPA does not materially affecting a sector of the any, that residues of mevinphos would receive comment by October 2, 1995, national economy, such as productivity, be observed in legally treated EPA will issue a final order revoking all jobs, the environment, public health or commodities after May 31, 1996. Also, mevinphos tolerances. Because EPA safety, or State, local, or tribal mevinphos is not persistent and the believes it is appropriate to preclude governments or communities; (2) Agency does not believe that mevinphos review of objections raising issues not creating serious inconsistency or residues will be found in processed provided in comments submitted in otherwise interfering with an action foods. Therefore, setting action levels is response to the proposal, EPA taken or planned by another agency; (3) not necessary. encourages all parties interested in the materially altering the budgetary The Agency believes that it is status of mevinphos tolerances to impacts of entitlements, grants, user appropriate to initiate revocation of submit comments. tolerances at this time because fees, or loan programs; or (4) raising mevinphos is no longer registered in the V. Public Docket novel legal or policy issues out of legal U.S. In accordance with the voluntary A record has been established for this mandates, the President’s priorities, or cancellation requested by Amvac, the rulemaking under docket number the principles set forth in the Order. sole technical registrant for mevinphos, ‘‘OPP–300393’’ (including comments Pursuant to the terms of this Order, all use of mevinphos is scheduled to and data submitted electronically as EPA has determined that this proposed cease after November 30, 1995. EPA described below). A public version of rule is not ‘‘significant’’ and, therefore, believes that it is appropriate to revoke this record, including printed, paper is not subject to the requirements of the tolerances covering residues of a versions of electronic comments, which Order, such as OMB review or other pesticide for which there is no legal does not include any information actions. EPA does not expect any domestic use unless it can be shown by claimed as CBI, is available for significant economic impacts to result interested parties that there is a need for inspection from 8 a.m. to 4:30 p.m., from the revocation of mevinphos the tolerances, and that the tolerances Monday through Friday, excluding legal tolerances, because all U.S. mevinphos are protective of the public health. Such holidays. The public record is located in registrations have been canceled and no tolerances may be needed, for example, Rm. 1132 of the Public Response and further use of mevinphos will be if interested parties can show that the Program Resources Branch, Field permitted after November 30, 1995. pesticide is used in foreign countries on Operations Division (7506C), Office of B. Regulatory Flexibility Act crops that may be destined for the U.S. Pesticide Programs, Environmental It should be noted that in order for Protection Agency, Crystal Mall #2, This proposed rule has been reviewed any tolerances to be retained, EPA must 1921 Jefferson Davis Highway, under the Regulatory Flexibility Act of determine, under sections 408 and 409 Arlington, VA. 1980 (Pub. L. 96–354; 94 Stat. 1164, 5 of FFDCA, that the particular tolerance Electronic comments can be sent U.S.C. 601 et seq.), and it has been is protective of public health. For EPA directly to EPA at: determined that it will not have any to make this public safety finding, it impact on small businesses, small must have adequate data to assess the [email protected] governments, or small organizations. risks that may result from exposure to Electronic comments must be This proposed rule is intended to mevinphos residues in or on food. EPA submitted as an ASCII file avoiding the prevent the sale of food commodities generally requires submission of such use of special characters and any form containing pesticide residues where the information (such as residue data) to of encryption. subject pesticide has been used in an support pesticide registrations under The official record for the rulemaking unregistered or illegal manner, as well FIFRA and to maintain tolerances under as well as the public version, as as to prevent food commodities FFDCA. With all domestic use of described above will be kept in paper containing any mevinphos residues mevinphos ending November 30, 1995, form. Accordingly, EPA will transfer all from entering the U.S. EPA must have adequate data to comments received electronically into As stated above, because mevinphos demonstrate that imported foods treated printed, paper form as they are received is not registered in the U.S. and will not with mevinphos are safe. Such data are and will place the paper copies in the be used in the U.S. after November 30, 39304 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 1995, EPA does not expect significant DEPARTMENT OF HEALTH AND excluded from the prospective payment any economic impact at any level of HUMAN SERVICES system (60 FR 29258). The report business enterprise if mevinphos consists of letters to the President of the tolerances are revoked on May 31, 1996; Health Care Financing Administration Senate and the Speaker of the House of especially since all use of mevinphos Representatives. Subsequently, we will have ended 6 months before this 42 CFR Parts 412, 413, 424, 485, and discovered that the incorrect report was date. Accordingly, I certify that this 489 inadvertently printed in the proposed regulatory action does not require a [BPD±825±CN] rule. separate regulatory flexibility analysis RIN 0938±AG95 In addition to publishing the proper under the Regulatory Flexibility Act. report to Congress, we are making C. Paperwork Reduction Act Medicare Program; Changes to the several other corrections to the June 2, This proposed regulatory action does Hospital Inpatient Prospective 1995 proposed rule. not contain any information collection Payment Systems and Fiscal Year 1996 The proposed rule (FR Doc 95–13183) requirements subject to review by the Rates; Correction published June 2, 1995 (60 FR 29202) is Office of Management and Budget under corrected as follows: AGENCY: Health Care Financing the Paperwork Reduction Act of 1980, Administration (HCFA), HHS. 1. On page 29250, beginning at the 44 U.S.C. 3501 et seq. (Sec. 408(m) of ACTION: Proposed rule; correction. bottom of the second column, section the Federal Food, Drug, and Cosmetic VIII.B.9 of the preamble is deleted and Act (21 U.S.C. 346 a(m))). SUMMARY: In the June 2, 1995, issue of replaced with the following: 9. PPS List of Subjects in Parts 180 and 185 the Federal Register (60 FR 29202), we Payment Impact File published a proposed rule addressing Environmental protection, This file contains data used to revisions to the Medicare hospital Administrative practice and procedure, estimate FY 1996 payments under Agricultural commodities, Food inpatient prospective payment systems Medicare’s prospective payment additives, Pesticides and pests, for operating costs and capital-related systems for hospitals’ operating and Reporting and recordkeeping costs to implement necessary changes capital-related costs. The data are taken requirements. arising from our continuing experience from various sources, including the Dated: July 25, 1995. with the system. Provider-Specific File, the PPS–IX and Additionally, in the addendum to that Losi Rossi, PPS–X Minimum Data Sets, and prior proposed rule, we described proposed Director, Special Review and Reregistration impact files. The data set is abstracted Division, Office of Pesticide Programs. changes in the amounts and factors from an internal file used for the impact Therefore, it is proposed that 40 CFR necessary to determine prospective analysis of the changes to the parts 180 and 185 be amended to read payment rates for Medicare hospital prospective payment system published as follows: inpatient services for operating costs in the Federal Register. This file is 1. In Part 180: and capital-related costs. The changes available for release one month after would be applicable to discharges publication of the proposed rule in the PART 180ÐAMENDED occurring on or after October 1, 1995. Federal Register, with an updated We also set proposed rate-of-increase a. The authority citation for part 180 version available one month after limits as well as proposing policy publication of the final rule. would continue to read as follows: changes for hospitals and hospital units Media: Diskette Authority: 21 U.S.C. 346a and 371. excluded from the prospective payment § 180.157 [Removed] systems. This document corrects errors File Cost: $145.00 b. Section 180.157 is removed. made in the proposed rule. Periods Available: FY 1996 PPS Update 2. In Part 185: FOR FURTHER INFORMATION CONTACT: § 412.23 [Corrected] a. The authority citation for part 185 Nancy Edwards (410) 966–4532. would continue to read as follows: SUPPLEMENTARY INFORMATION: In our 2. On page 29251, second column, in Authority: 21 U.S.C. 346a and 348. June 2, 1995, proposed rule (60 FR § 412.23(e)(2)(i), at the end of the fifth 29202), we stated that we were line, add the word ‘‘or’’. § 185.4200 [Removed] including as Appendix C the report to 3. On page 29329, Table 6c—Invalid b. Section 185.4200 is removed. Congress on our initial recommendation Diagnosis Codes is corrected and new [FR Doc. 95–18874 Filed 8–1–95; 8:45 am] on the update factors for prospective Table 6d—Invalid Procedure Codes is BILLING CODE 6560±50±F payment hospitals and hospitals added to read as follows: TABLE 6C.ÐINVALID DIAGNOSIS CODES Diagnosis code Description CC MDC DRG 005.8 ...... Other bacterial food poisoning ...... N 6 182, 183, 184. 278.0 ...... Obesity ...... N 10 296, 297, 298. 415.1 ...... Pulmonary embolism and infarction ...... Y 4 78 15 387, 389. 569.6 ...... Colostomy and enterostomy malfunction ...... Y 6 188, 189, 190. 690 ...... Erythematosquamous dermatosis ...... N 9 283, 284. 787.9 ...... Other symptoms involving digestive system ...... N 6 182, 183, 184. 989.8 ...... Toxic effect of other substances, chiefly nonmedicinal as to source ...... N 21 449, 450, 451. 997.0 ...... Central nervous system complications ...... Y 1 34, 35 15 387, 389. 997.9 ...... Complications affecting other specified body systems, not elsewhere classified ...... Y 21 452, 453. V12.5 ...... Personal history of diseases of circulatory system ...... N 23 467. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39305 TABLE 6C.ÐINVALID DIAGNOSIS CODESÐContinued Diagnosis code Description CC MDC DRG V43.8 ...... Organ or tissue replaced by other means, not elsewhere classified ...... N 23 467 V59.0 ...... Blood donor ...... N 23 467. TABLE 6D.ÐINVALID PROCEDURE CODES Procedure code Description OR MDC DRG 33.5 ...... Lung transplant ...... Y Pre 495. 39.7 ...... Periarterial sympathectomy ...... Y 5 478, 479. 60.2 ...... Transurethral prostatectomy ...... Y 11 306, 307. 12 336, 337, 476. 4. On pages 29376 through 29379, TEFRA limit equal to the rate of increase in My recommendations are consistent with appendix C is removed and the the excluded hospital market basket (3.4 the provisions of the Omnibus Budget following added in its place: percent) minus the applicable reduction for Reconciliation Act (OBRA) of 1993 in which each hospital. The applicable reduction with I am required to establish the update for PPS Appendix C—Report to Congress on the respect to a hospital is the lesser of 1 hospitals in both large urban areas and other Update Factor for Prospective Payment percentage point or the percentage point areas as the market basket rate of increase Hospitals and Hospitals Excluded From difference between 10 percent and the reduced by 2.0 percentage points. The Office the Prospective Payment System hospital’s update adjustment percentage for of Management and Budget currently the fiscal year. Therefore, the hospital- estimates the PPS market basket rate of The Secretary of Health and Human Services specific update can vary between 2.4 and 3.4 increase for FY 1996 to be 3.4 percent. Washington, DC 20201 percent. The weighted average update to the Accordingly, we recommend an update for payment limit for PPS excluded hospitals May 26, 1995. both large urban and other areas of 1.4 and units equals 2.85 percent. percent. The Honorable Albert Gore, Jr., My recommendation for the updates is Sole community hospitals (SCHs) are the President of the Senate, Washington, D.C. based on current projections of relevant data. sole source of care in their area and are 20510 A final recommendation on the appropriate afforded special payment protection to Dear Mr. President: Section 1886(e)(3)(B) of percentage increases for FY 1996 will be maintain access to services for Medicare the Social Security Act (the Act) requires me made nearer the beginning of the new beneficiaries. SCHs are paid the higher of a to report to Congress the initial estimate of Federal fiscal year based on the most current hospital-specific rate or the Federal PPS rate. the applicable percentage increase in market basket projection available at that inpatient hospital payment rates for Fiscal time. The final recommendation will Under our recommendation and OBRA 1993, Year (FY) 1996 that I will recommend for incorporate our analysis of the latest the update to hospital-specific rates equals hospitals subject to the Medicare prospective estimates of all relevant factors, including the increase for all PPS hospitals; that is, payment system (PPS) and for hospitals and recommendations by the Prospective market basket rate of increase of 3.4 percent unites excluded from PPS. This submission Payment Assessment Commission (ProPAC). minus 2.0 percentage points, or 1.4 percent. constitutes the required report. Section 1886(d)(4)(C)(iv) of the Act also Hospitals and distinct part hospital units My recommendations are consistent with requires that I include in my report that are excluded from PPS are paid based on the provisions of the Omnibus Budget recommendations with respect to their reasonable costs subject to a limit under Reconciliation Act (OBRA) of 1993 in which adjustments to the diagnosis-related group the Tax Equity and Fiscal Responsibility Act I am required to establish the update for PPS (DRG) weighting factors. At this time I do not (TEFRA) of 1982. Consistent with current hospitals in both large urban areas and other anticipate recommending any adjustment to law, we recommend an increase in the areas as the market basket rate of increase the DRG weighting factors for FY 1996. TEFRA limit equal to the rate of increase in reduced by 2.0 percentage points. The Office I am pleased to provide my the excluded hospital market basket (3.4 of Management and Budget currently recommendations to you. I am also sending percent) minus the applicable reduction for estimates the PPS market basket rate of a copy of this letter to the Speaker of the each hospital. The applicable reduction with increase for FY 1996 to be 3.4 percent. House of Representatives. respect to a hospital is the lesser of 1 Accordingly, we recommend an update for Sincerely, percentage point or the percentage point both large urban and other areas of 1.4 Donna E. Shalala. difference between 10 percent and the percent. hospital’s update adjustment percentage for Sole community hospitals (SCHs) are the The Secretary of Health and Human Services the fiscal year. Therefore, the hospital- sole source of care in their area and are specific update can vary between 2.4 and 3.4 Washington, DC 20201 afforded special payment protection to percent. The weighted average update to the maintain access to services for Medicare May 26, 1995. payment limit for PPS excluded hospitals beneficiaries. SCHs are paid the higher of a The Honorable Newt Gingrich, and units equals 2.85 percent. hospital-specific rate or the Federal PPS rate. Speaker of the House of Representatives, My recommendation for the updates is Under our recommendation and OBRA 1993, Washington, D.C. 20515 based on current projections of relevant data. the update to hospital-specific rates equals Dear Mr. Speaker: Section 1886(e)(3)(B) of A final recommendation on the appropriate the increase for all PPS hospitals; that is, the Social Security Act (the Act) requires me percentage increases for FY 1996 will be market basket rate of increase of 3.4 percent to report to Congress the initial estimate of made nearer the beginning of the new minus 2.0 percentage points, or 1.4 percent. the applicable percentage increase in Federal fiscal year based on the most current Hospitals and distinct part hospital units inpatient hospital payment rates for Fiscal market basket projection available at that that are excluded from PPS are paid based on Year (FY) 1996 that I will recommend for time. The final recommendation will their reasonable costs subject to a limit under hospitals subject to the Medicare prospective incorporate our analysis of the latest the Tax Equity and Fiscal Responsibility Act payment system (PPS) and for hospitals and estimates of all relevant factors, including (TEFRA) of 1982. Consistent with current units excluded from PPS. This submission recommendations by the Prospective law, we recommend an increase in the constitutes the required report. Payment Assessment Commission (ProPAC). 39306 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Section 1886(d)(4)(C)(iv) of the Act also • A negative adjustment of 0.3 (Catalog of Federal Domestic Assistance requires that I include in my report percentage points to encourage hospital Program No. 93.773, Medicare—Hospital recommendations with respect to productivity improvements; and Insurance; and Program No. 93.774, adjustments to the diagnosis-related group Medicare—Supplementary Medical (DRG) weighting factors. At this time I do not • A net adjustment of zero percentage Insurance Program) anticipate recommending any adjustment to points for case-mix change in FY 1995. Dated: July 21, 1995. the DRG weighting factors for FY 1996. Overall, the net increase employing Neil J. Stillman, I would be pleased to discuss this the above factors is the percentage recommendation with you. I am also sending Deputy Assistant Secretary for Information a copy of this letter to the President of the increase in the hospital market basket Resources Management. Senate. minus 1.9 percentage points. Based on [FR Doc. 95–18770 Filed 8–1–95; 8:45 am] Sincerely, HCFA’s market basket estimate of 3.5 BILLING CODE 4120±01±P percent, ProPAC recommends that Donna E. Shalala. hospitals in large urban and other areas 5. On page 29380, appendix D, second receive a 1.6 percent update. column, the second full paragraph is DEPARTMENT OF TRANSPORTATION 7. On page 29383, Table 1— removed and the following added in its Coast Guard place: Comparison of FY 1996 Update In its March 1, 1995 report, ProPAC Recommendations is removed and the 46 CFR Parts 5, 10, 12, and 15 recommended update factors to the following added in its place: standardized amounts equal to the [CGD 95±062] percentage increase in the market basket TABLE 1.ÐCOMPARISON OF FY 1996 UPDATE RECOMMENDATIONS International Convention on Standards minus 1.8 percentage points for of Training, Certification and hospitals in both large urban and other HHS ProPAC Watchkeeping for Seafarers, 1978, as areas. Based on its current market basket revised by the 1995 Amendments to It rate of increase estimate of 3.4 percent, Market Basket ...... MB MB AGENCY: ProPAC’s recommended update to the Difference Between Coast Guard, DOT. standardized amounts equals 1.6 HCFA & ProPAC ACTION: Notice of public meeting, percent for hospitals in both large urban Market Baskets ...... ¥0.1 availability of documents, and request and other areas. ProPAC recommended for comments. that the update for the hospital-specific Subtotal ...... MB MB±0.1 rates applicable to sole community Policy Adjustment SUMMARY: The Coast Guard is holding a hospitals be the same factor as the rate Factors Produc- public meeting to discuss the outcome for all other prospective payment tivity ...... ¥0.7 to ¥0.3 of the 1994 Conference of Parties to the hospitals. This recommendation would ¥0.8 International Convention on Standards Intensity ...... 0.0 of Training, Certification and result in a 1.6 percent update to the Science and Tech- hospital-specific rates. The components Watchkeeping for Seafarers, 1978 nology ...... +0.3 (STCW), which adopted comprehensive of ProPAC’s update factor Practice Patterns ...... (1) recommendations are described in Real Within DRG amendments to the Annex to STCW. detail in the ProPAC report, which is Change ...... (2) The amendments are scheduled to come published as Appendix E to this into force on February 1, 1997, and they document. We discuss ProPAC’s Subtotal ...... ¥0.7 to +0.0 may affect virtually all phases of the recommendations concerning the ¥0.8 system used in the United States to update factors and our responses to Case Mix Adjust- train, test, evaluate, document, and ment Factors: license merchant mariners. The meeting these recommendations below. Projected 6. On page 29380, appendix D, section will provide an opportunity for the Case Mix public to comment on the steps that the III is corrected up to the Response on Change ...... ¥0.8 ¥1.0 page 29381, column 1 as follows: Real Across Coast Guard considers necessary to DRG implement the requirements of STCW as III. ProPAC Recommendation for Change ...... 0.8 +0.8 amended under the laws of the United Updating the Prospective Payment Real Within States, including regulations of the System Standardized Amounts DRG Coast Guard. For FY 1996, ProPAC recommends Change ...... (3) +0.2 DATES: The meeting will be held August 31, 1995, from 9:30 a.m. to 2:30 p.m. that the standardized amounts be Subtotal ...... 0.0 0.0 updated by the following factors: Written comments must be received not • Effect of 1994 The projected increase in the HCFA Reclassifica- later than September 29, 1995. hospital market basket index, currently tion and ADDRESSES: The meeting will be held in estimated at 3.5 percent, with an Recalibra- room 2415, Coast Guard Headquarters, adjustment of ¥0.1 percentage points to tion ...... ¥0.3 Ð 2100 Second Street SW., Washington, account for the different wage and Forecast Error Cor- DC 20593–0001. Written comments may salary price proxies used for the ProPAC rection ...... ¥1.8 ¥1.8 be mailed to the Executive Secretary, market basket rate of increase. Marine Safety Council (G–LRA), U.S. • Total Rec- A negative adjustment of 1.8 ommend- Coast Guard, 2100 Second Street SW., percentage points to correct for ed Update MB±2.8 to MB±1.9 Washington DC 20593–0001, or may be substantial error in the FY 1994 market MB±2.9 delivered to room 3406 at the same basket forecast; address between 8 a.m. and 3 p.m., • A positive adjustment of 0.3 (1) Included in ProPAC's Productivity Meas- Monday through Friday, except Federal ure. percentage points to reflect the cost- (2) Included in ProPAC's Case Mix Adjust- holidays. Comments will become part of increasing effects of scientific and ment. this docket [CGD 95–062] and will be technological advances; (3) Included in HHS's Intensity Factor. available for inspection or copying at Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39307 room 3406, Coast Guard Headquarters, 2. Virtually all training will be subject ship-specific equipment, procedures, between 8 a.m. and 3 p.m., Monday to a system of approval and and other arrangements necessary for through Friday, except Federal holidays. independent monitoring under performing their jobs. A copy of the 1995 Amendments to standards of quality. Persons engaged in 11. New regulations may be necessary STCW may be obtained by writing training, whether on board ship or at to address the special provisions Commandant (G–MOS), U.S. Coast shore-side training facilities, will have governing personnel on tankers and on Guard, 2100 Second Street SW., to meet qualification standards. Many ro-ro passenger ships. Washington, DC 20593–0001, or by will have to use a training-record book. 12. New policy will be necessary to calling (202) 267–0214, between 8 a.m. 3. Assessment of competence will implement expanded port-state control. and 3 p.m. Monday through Friday, involve both examination, to verify a Beyond the above, specific revisions except Federal holidays. Requests may sufficient level of knowledge and will be necessary to ensure that also be submitted by facsimile at (202) understanding of essential subjects, and requirements for being issued a license 267–4570. demonstration of practical skills. or document under domestic regulations FOR FURTHER INFORMATION CONTACT: Persons engaged in assessment of fully meet those of the 1995 Mr. Christopher Young, Operating and competence, whether on board ship or Amendments to STCW. For example, Environmental Standards Division (G– at shore-side assessment facilities, will officers of the navigational watch will MOS), U.S. Coast Guard, 2100 Second themselves have to meet qualification need training in the use of Automatic Street SW., Washington, DC 20593– standards. They will have to document Radar Plotting Aids (ARPA) for service 0001, telephone (202) 267–0214. proof of candidates’ successful on ships fitted with ARPA. Also, such demonstration of skills. officers will have to hold radio SUPPLEMENTARY INFORMATION: 4. Simulators used in training or operators’ certificates valid under the Background and Discussion assessment must meet certain Global Maritime Distress and Safety performance standards. System (GMDSS) for service in ships On July 7, 1995, a Conference of 5. All persons employed or engaged operating in the GMDSS. Parties to the International Convention on seagoing vessels (i.e., all persons on In revising domestic regulations, the on Standards of Training, Certification board except passengers) will have to Coast Guard should consider and Watchkeeping for Seafarers, 1978 undergo familiarization training to harmonizing the license categories with (STCW), meeting at the International ensure they can look after themselves in the structure outlined in the 1995 Maritime Organization in London, the event of an emergency or a life- Amendments to STCW, which is as adopted a package of Amendments to threatening situation. Persons follows: STCW. The amendments will enter into responsible for safety or pollution force on February 1, 1997, unless a third prevention (i.e., the required crew Deck Department of the parties to the Convention, or complement, as well as those with 1. Officers of the navigational watch parties representing over 50 percent of assigned safety duties) will have to get on ships of 500 gross tons or more. the world’s shipping tons, object to additional basic training in safety, 2. Officers of the navigational watch them by August 1, 1996. Because they including firefighting. Persons on ships of less than 500 gross tons not were adopted unanimously by the responsible for medical care must also engaged on near-coastal voyages. Conference, no objections are expected. meet certain standards. 3. Officers of the navigational watch Consequently, the Coast Guard is taking 6. All persons employed or engaged on ships of less than 500 gross tons necessary steps to implement them, to on seagoing vessels must meet certain engaged on near-coastal voyages. ensure that U.S. documents and licenses standards of medical fitness. 4. Masters and Chief Mates on ships are issued in compliance with them. 7. Current standards for unlicensed of 3000 gross tons or more. The Coast Guard will hold a public seamen must be reviewed to ensure they 5. Master and Chief Mates on ships of meeting on August 31, 1995, to discuss reflect the 1995 Amendments to STCW between 500 and 3000 gross tons. the outcome of the Conference and seek relating to ratings for those who are 6. Masters on ships of less than 500 public comment on how the 1995 members of navigational watches on gross tons not engaged on near-coastal Amendments to STCW, adopted by the ships of 500 gross tons or more, or those voyages. Conference, should be implemented. who are members of engine-room 7. Masters on ships of less than 500 Comments are invited not only on the watches or are designated to perform gross tons engaged on near-coastal substance of any new requirements but duties in periodically unmanned voyages. also on the economic impact of meeting engine-rooms on seagoing ships Engine Department the requirements, whether on powered by propulsion machinery of individuals, maritime training, owners 750 kW [1000 hp] or more. 1. Officers in charge of the and operators of vessels, small 8. Watchkeeping personnel must engineering watch in manned engine- businesses, or others. receive a minimum of rest. Masters must rooms. The Coast Guard must consider arrange watchkeeping adequate for safe 2. Designated duty engineers in revising the current regulations on watches. periodically unmanned engine-rooms. licensing and documentation (46 CFR 9. Suspension-and-revocation 3. Chief engineer officers of ships Parts 5, 10, 12, and 15) as well as those procedures must enable the taking of powered by main propulsion machinery on workhours and watchkeeping (46 appropriate action against a licensed or of 3,000 kW [4000 hp] or more. CFR Part 15) to reflect the requirements documented person who has (a) allowed 4. Second engineer officers of ships of the 1995 Amendments to STCW. The a shipboard function to be performed by powered by main propulsion machinery following is a list of the most significant a person not holding a required STCW of 3,000 kW [4000 hp] or more. changes necessary to the regulations: certificate or (b) certified that a skill has 5. Chief engineer officers of ships 1. All candidates for STCW been properly demonstrated when it has powered by main propulsion machinery certificates (i.e., licenses and documents not, or when it has not been directly of between 750 kW [1000 hp] and 3,000 for service on seagoing ships) will have observed. kW [4000 hp]. to undergo approved training and 10. Companies must ensure that new 6. Second engineer officers of ships assessment of competence. crewmembers are familiarized with powered by main propulsion machinery 39308 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules of between 750 kW [1000 hp] and 3,000 FCC, interested parties should serve the SUMMARY: This notice terminates kW [4000 hp]. petitioner, or its counsel or consultant, rulemaking in response to a petition Likewise, in revising domestic as follows: Barry A. Friedman, Esq., filed by Karen Slay, asking that NHTSA regulations, the Coast Guard should Semmes, Bowen & Semmes, Suite 900, require manufacturers of pickup trucks consider applying the standards of 1025 Connecticut Avenue, NW., to place some kind of warning or competence set out in tables in the 1995 Washington, DC 20036 (Counsel to recommendation on the cargo beds and Amendments to STCW, by petitioner). in the owner’s manual ‘‘stating the incorporating those tables by reference FOR FURTHER INFORMATION CONTACT: dangers of passengers riding in the cargo into the appropriate sections of the Leslie K. Shapiro, Mass Media Bureau, area of these vehicles.’’ Pickup revised regulations. (202) 418–2180. manufacturers have agreed to include in The above subjects will be open for SUPPLEMENTARY INFORMATION: This is a their owners’ manuals clear and specific discussion and comment at the meeting synopsis of the Commission’s Notice of warnings about the dangers of riding in on August 31. Any comments received Proposed Rule Making, MM Docket No. cargo areas of vehicles and to join with at the meeting or in response to this 95–124, adopted July 20, 1995, and the agency, vehicle dealers, and other notice will be taken into account in the released July 28, 1995. The full text of interested organizations in a broad- development of implementing- this Commission decision is available based effort to educate the public about regulations. for inspection and copying during the dangers associated with riding in the Attendance at the meeting is open to normal business hours in the FCC cargo areas of vehicles. In these the public. Members of the public may Reference Center (Room 239), 1919 M circumstances, NHTSA has concluded make oral presentations during the Street, NW., Washington, DC. The that no regulatory action is needed at meeting. Persons wishing to make oral complete text of this decision may also this time. presentations should notify the person be purchased from the Commission’s FOR FURTHER INFORMATION CONTACT: listed above under FOR FURTHER copy contractor, International Stephen Kratzke, Office of Vehicle INFORMATION CONTACT no later than the Transcription Services, Inc., (202) 857– Safety Standards, NHTSA (NPS–10), day before the meeting. Written material 3800, 2100 M Street, NW., Suite 140, 400 Seventh Street, S.W., Washington, may be submitted before, during, or Washington, DC 20037. DC 20590. Mr. Kratzke can be reached after the meeting. Provisions of the Regulatory by telephone at (202) 366–5203 or FAX Dated: July 27, 1995. Flexibility Act of 1980 do not apply to at (202) 366–4329. J.C. Card, this proceeding. SUPPLEMENTARY INFORMATION: Karen Rear Admiral, U.S. Coast Guard Chief, Office Members of the public should note Slay, a Lubbock, Texas housewife and of Marine Safety, Security and Environmental that from the time a Notice of Proposed mother of four, filed with NHTSA a Protection. Rule Making is issued until the matter petition for rulemaking dated October [FR Doc. 95–19006 Filed 8–1–95; 8:45 am] is no longer subject to Commission 13, 1994. In this petition, Ms. Slay BILLING CODE 4910±14±M consideration or court review, all ex requested that NHTSA require parte contacts are prohibited in manufacturers of pickup trucks to place Commission proceedings, such as this some kind of warning or FEDERAL COMMUNICATIONS one, which involve channel allotments. recommendation on the cargo beds and COMMISSION See 47 CFR 1.1204(b) for rules in the owner’s manual ‘‘stating the governing permissible ex parte contacts. dangers of passengers riding in the cargo 47 CFR Part 73 For information regarding proper area of these vehicles.’’ Ms. Slay [MM Docket No. 95±124, RM±8573] filing procedures for comments, see 47 referred to a July 3, 1994 crash in Scurry CFR 1.415 and 1.420. County, Texas, in which eight children Radio Broadcasting Services; Atlantic, were killed and four others seriously List of Subjects in 47 CFR Part 73 IA injured. These 12 children were riding Radio broadcasting. in the cargo bed of the pickup and all AGENCY: Federal Communications Federal Communications Commission. were ejected upon impact. Commission. Ms. Slay indicated her understanding Douglas W. Webbink, ACTION: Proposed rule. that State, not Federal, laws and Chief, Policy and Rules Division, Mass Media regulations address how vehicles may Bureau. SUMMARY: The Commission requests be operated on the public roads. She comments on a petition filed by [FR Doc. 95–18950 Filed 8–1–95; 8:45 am] stated that she has begun a ‘‘campaign Wireless Communications Corp. seeking BILLING CODE 6712±01±F or crusade’’ to get the law in her home the allotment of Channel 239C3 to State of Texas changed as it relates to Atlantic, IA, as the community’s first persons riding in the cargo bed of local FM transmission service. Channel DEPARTMENT OF TRANSPORTATION pickups, ‘‘so that Texas children do not 239C3 can be allotted to Atlantic in lose their lives as innocent victims.’’ National Highway Traffic Safety compliance with the Commission’s However, Ms. Slay believed that a Administration minimum distance separation Federal requirement for a warning label requirements without the imposition of 49 CFR Part 571 and information in the owner’s manual a site restriction, at coordinates 41–24– would serve a useful purpose by alerting 00 North Latitude and 95–00–54 West RIN 2127±AF49 persons to the hazards of riding in the Longitude. cargo bed. In addition, Ms. Slay DATES: Comments must be filed on or Federal Motor Vehicle Safety indicated her belief that not one pickup before September 18, 1995, and reply Standards; Termination of Rulemaking designer ever intended for the cargo area comments on or before October 3, 1995. AGENCY: National Highway Traffic to be used for passengers. ADDRESSES: Federal Communications Safety Administration (NHTSA), DOT. NHTSA began its consideration of this Commission, Washington, DC 20554. In request by determining the size of the ACTION: Termination of rulemaking. addition to filing comments with the safety problem. From 1983 to 1993, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39309 there were about 210 fatalities to concern, including joining in promoting area of highway safety or dealing with occupants of pickup cargo beds each the adoption and enforcement of State State and Federal government can get a year. The number of deaths each year laws restricting people from riding in bill introduced in the State legislature shows remarkably little variation, pickup cargo beds and joining in a and pass one of the two houses easily beginning with 213 fatalities in 1983 public education campaign on this on its first hearing, and move the and concluding with 211 fatalities in subject. Federal government to put together a 1993. While the total size of the problem Having this understanding with the coalition of parties to try to address the of injuries and fatalities to cargo bed pickup manufacturers was encouraging, issue on a National level. These occupants is small in the context of but NHTSA believed it needed to accomplishments can be traced to a overall traffic safety (about one-half of involve more potential partners in this single citizen working out of her house one percent of annual motor vehicle effort if it was to be successful. with no funding, no list of members for fatalities), the relative constancy of the Accordingly, the agency contacted the whom she purported to speak—nothing number over this decade suggests that it National Automobile Dealers more than her dedication to this issue has not been much affected by the many Association to see if they would join in and her ability to present clear, safety improvements made to pickups the effort to address this problem. The reasonable, and articulate arguments for during that decade, nor has it been dealers’ organization agreed. Also, the why some action was necessary. much affected by the changes in National PTA had written a letter to Issued on July 27, 1995. personal behavior by vehicle occupants NHTSA in support of Karen Slay’s during that decade, such as significant petition. NHTSA contacted the National Barry Felrice, increases in safety belt use by occupants PTA to see if it would agree to Associate Administrator for Safety and significant decreases in drunk and participate in an information campaign Performance Standards. drugged driving. This suggests it may be on the hazards of riding in cargo beds, [FR Doc. 95–19024 Filed 8–1–95; 8:45 am] appropriate for NHTSA to try a new and the National PTA agreed to do so. BILLING CODE 4910±59±M approach specifically targeted to reduce NHTSA held a news conference on injuries and deaths to passengers in May 25, 1995 to announce this new cargo beds. NHTSA granted Ms. Slay’s cooperative effort to reduce injuries and DEPARTMENT OF THE INTERIOR petition on January 25, 1995, to allow deaths in pickup truck cargo beds. This for a full and careful consideration of cooperative effort will rely on the slogan Fish and Wildlife Service the issues raised. ‘‘Kids Aren’t Cargo’’ to raise the public’s However, the grant of the petition did awareness about this safety risk. NHTSA 50 CFR Part 17 not mean the agency endorsed Ms. has followed this up by including some RIN 1018±AD35 Slay’s suggested solution to the ‘‘Kids Aren’t Cargo’’ materials in the problem. The fatality data show that Campaign Safe and Sober materials Endangered and Threatened Wildlife most of the fatalities in pickup cargo made available to all of the States and and Plants; Proposed Threatened beds are teenagers or young adults aged by contacting national organizations Status for Arctostaphylos Pallida 20–29. People in these age groups have other than the National PTA to see if (Pallid Manzanita), a Plant From the traditionally been among the least they are interested in joining this effort. Northern Diablo Range of California receptive to safety warnings on labels. Since manufacturers and others have AGENCY: Fish and Wildlife Service, This information raises doubts about the already voluntarily committed to join in Interior. effectiveness of a warning label as a a broad-based effort to reduce the solution to this problem. injuries and deaths to occupants of ACTION: Proposed rule. Given all of this information, NHSTA cargo beds, there is no reason to proceed SUMMARY: The Fish and Wildlife Service sought a creative alternative to address with consideration of a regulatory (Service) proposes to list Arctostaphylos this safety risk outside of the traditional requirement to achieve that same goal. pallida (pallid manzanita) as a regulatory process. NHTSA began by Accordingly, the rulemaking action threatened species, pursuant to the sending a letter to each of the pickup associated with the January 25, 1995 Endangered Species Act of 1973, as manufacturers asking for their reaction grant of Karen Slays’s petition for amended (Act). This plant species is to Karen Slay’s petition and her rulemaking is hereby terminated. found only in the northern Diablo Range suggested solution to the problem. This termination should not be of California in Alameda and Contra Although the manufacturers did not misinterpreted. If at some point in the Costa Counties. The species is agree with labeling their trucks, they did future it becomes clear that the ‘‘Kids threatened by shading and competition agree with Ms. Slay that something Aren’t Cargo’’ campaign has not ought to be done. All of the pickup achieved its purpose, the agency will from native and non-native plants, fire manufacturers agreed to voluntarily evaluate all of its options to reduce suppression, habitat fragmentation, include clear language in each pickup injuries and deaths to occupants in hybridization, disease, herbicide owner’s manual warning against riding cargo areas, including possible spraying, unauthorized tree cutting, in beds. Chrysler, Ford, and General regulatory requirements. At this time, inadequate regulatory mechanisms, and Motors, whose vehicles collectively however, the agency believes the ‘‘Kids stochastic events by virtue of the small comprise more than 86 percent of Aren’t Cargo’’ campaign represents an isolated nature of the remaining annual pickup sales in the U.S., went a approach that is more likely to address populations. This proposal, if made step further. These three manufacturers effectively this safety risk than a final, would extend Federal protection agreed to provide a simple and uniform regulatory approach would be. and recovery provisions afforded by the warning about the hazards of riding in Therefore, rulemaking action on the Act for this species. cargo areas in the owner’s manuals for Slay petition is terminated. DATES: Comments from all interested each of their vehicles starting no later The agency would like to close by parties must be received by October 9, than the 1997 model year. All of the expressing its appreciation to Ms. Slay 1995. Public hearing requests must be pickup manufacturers also committed to for her petition and her work in this received by September 25, 1995. join in a broad-based effort to raise the area. It is rare that an individual citizen ADDRESSES: Comments and materials public’s awareness of this safety with no previous involvement in the concerning this proposal should be sent 39310 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules to the Field Supervisor, U.S. Fish and Counties, California. Arctostaphylos Previous Federal Action Wildlife Service, 2800 Cottage Way, pallida is a member of the A. andersonii Federal government action on this Room E–1803, Sacramento, California complex, a group of Arctostaphylos species began as a result of section 12 95825–1846. Comments and materials species found in central coastal of the Endangered Species Act of 1973, received and information used to California. The species is considered by as amended (16 U.S.C. 1531 et seq.), support this proposal will be available some taxonomists to be A. andersonii which directed the Secretary of the for public inspection, by appointment, var. pallida Adams ex McMinn (Amme Smithsonian Institution to prepare a during normal business hours at the and Havlik 1987a); McMinn reduced the report on those plants considered to be above address. species to the varietal level in 1939. endangered, threatened, or extinct in the FOR FURTHER INFORMATION CONTACT: Dale However, Wells (1993) treats the species United States. This report, designated as Pierce, Assistant Field Supervisor, as A. pallida. House Document No. 94–51, was Arctostaphylos pallida is an upright, Sacramento Field Office (see ADDRESSES presented to Congress on January 9, non-burl-forming shrub in the heath section) (telephone 916/979–2710; 1975, and included Arctostaphylos family (Ericaceae). Arctostaphylos facsimile 916/979–2723). pallida (as Arctostaphylos andersonii pallida grows from 2 to 4 m (6.5 to 13.0 var. pallida) as endangered. The Service SUPPLEMENTARY INFORMATION: ft) high or more with rough, gray or published a notice in the July 1, 1975, Background reddish bark. The twigs are bristly. The ovate to triangular leaves are bristly, Federal Register (40 FR 27823) of its Arctostaphylos pallida (pallid strongly overlapping, and clasping; they acceptance of the report of the manzanita) is found only in the are 2.5 to 4.5 centimeters (cm) (1.0 to 1.8 Smithsonian Institution as a petition northern Diablo Range of California. The inches (in.)) long and 2 to 3 cm (0.8 to within the context of section 4(c)(2) Diablo Range is part of the inner South 1.2 in.) wide. The dense, white flowers (petition provisions are now found in Coast Range of California. The Diablo are urn-shaped and 6 to 7 millimeters section 4(b)(3) of the Act) and its Range extends in a northwest to (mm) (0.2 to 0.3 in.) long. Flowering intention thereby to review the status of southeast direction as a more or less period is from December to March. the plant taxa named therein. The above continuous mountain chain, 32 to 48 Arctostaphylos tomentosa ssp. taxon was included in the July 1, 1975, kilometers (km) (20 to 30 miles (mi)) crustacea commonly co-occurs with A. notice. On June 16, 1976, the Service wide, for approximately 300 km (190 pallida but is a burl-forming species published a proposal (42 FR 24523) to mi) from San Pablo Bay in central with spreading leaves (Amme et al. no determine approximately 1,700 vascular California to Polonio Pass in northeast date, Wells 1993). plant species to be endangered species San Luis Obispo County. The altitude of Arctostaphylos pallida continues to pursuant to section 4 of the Act. The list the Diablo Range varies from 600 to occupy its original range in Alameda of 1,700 plant taxa was assembled on 1,280 meters (m) (2,000 to 4,200 feet (ft)) and Contra Costa Counties, where it is the basis of comments and data received and is broken by four or five east to west known from approximately 13 by the Smithsonian Institution and the passes. These passes divide the Diablo populations. The two largest Service in response to House Document Range into several distinct units: Contra populations are located at Huckleberry No. 94–51 and the July 1, 1975, Federal Costa Hills, Mt. Diablo, Mt. Hamilton Ridge, the type locality in Alameda and Register publication. Arctostaphylos Range, Panoche Hills, San Carlos Range, Contra Costa Counties, and at Sobrante pallida was included in the June 16, and Estrella Hills (Sharsmith 1982). Ridge in Contra Costa County. Several 1976, publication. Arctostaphylos pallida occurs in the other small, natural and planted General comments received in Contra Costa Hills section of the Diablo populations occur in Alameda and relation to the 1976 proposal were Range. Contra Costa Counties. The species is summarized in the April 26, 1978, Portions of the Diablo Range are found from 200 to 445 m (656 to 1,460 Federal Register (43 FR 17909). The thought to have been surrounded by ft) in elevation, primarily on thin soils Endangered Species Act Amendments marine embayments since the middle composed of chert and shale (Amme of 1978 required that all proposals over Miocene era, when modern flora and and Havlik 1987a). Generally, the plants 2 years old be withdrawn. A 1-year fauna were developing (Sharsmith are found in manzanita chaparral grace period was given to those 1982). Much of the surface of the Diablo habitat that frequently is surrounded by proposals already more than 2 years old. Range is comprised of rock in the oak woodlands and coastal scrub In a December 10, 1979, notice (44 FR Franciscan series. The soils formed from (Amme et al. no date). The two largest 70796), the Service withdrew the June 6, Franciscan rock are believed to control occurrences occupy an area of 1976, proposal along with four other partially the present distribution of approximately 34 hectares (ha) (82 acres proposals that had expired. plant species in the Diablo Range (ac)). These two populations are found The Service published a Notice of (Sharsmith 1982). Serpentine rock, in maritime chaparral, a habitat with Review for plants on December 15, 1980 which is a frequent component of mesic soil conditions and a maritime (45 FR 82480). This notice included Franciscan rock, yields a soil rich in influence. Many of the smaller Arctostaphylos pallida as a Category 1 heavy metals and low in the nutrients populations occur in coastal scrub (B. candidate species for Federal listing. required for plant growth (Kruckeberg Olson, East Bay Chapter, California Category 1 taxa are those for which the 1984). Because of the distinctive Native Plant Society (CNPS), in litt. Service has on file sufficient serpentine soil and the long exposure of 1994). Arctostaphylos pallida is information on biological vulnerability this land mass to colonization by plants, threatened by shading and competition and threats to support preparation of a distinctive group of plant species has from other plant species, fire listing proposals. On November 28, developed in the Diablo Range. suppression, hybridization with other 1983, the Service published a Alice Eastwood described Arctostaphylos species, herbicide supplement to the Notice of Review (48 Arctostaphylos pallida in 1933 from spraying, habitat fragmentation resulting FR 53640). This supplement changed specimens collected in 1902 by W.W. from past housing and road this taxon from a Category 1 to a Carruth in the ‘‘East Oakland Hills.’’ construction, unauthorized tree cutting, Category 2 candidate species. Category 2 This area is believed to be Huckleberry fungal disease, inadequate regulatory taxa are those for which data in the Ridge in Alameda and Contra Costa mechanisms, and stochastic events. Service’s possession indicate listing is Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39311 possibly appropriate, but for which thought to be smaller due to habitat has listed Arctostaphylos pallida as an sufficient data on biological fragmentation by urbanization (B. endangered species under the California vulnerability and threats are not Olson, CNPS, in litt. 1994). The Endangered Species Act (chapter 1.5 currently known or on file to support distribution of A. pallida consists of 2 § 2050 et seq. of the California Fish and proposed rules. The plant notice was large populations and approximately 11 Game Code, and title 14 California Code revised on September 27, 1985 (50 FR smaller populations in Alameda and of Regulations 670.2). Listing by the 39526). Arctostaphylos pallida was Contra Costa Counties, California. Both State of California requires individuals again included as a Category 2 large populations occur on lands owned to obtain a memorandum of candidate species. In the revision of the by the East Bay Regional Park District understanding with the California plant notice published on February 21, (EBRPD) (Amme and Havlik 1987b) Department of Fish and Game (CDFG) to 1990 (55 FR 6184), A. pallida was with the smaller populations occurring possess or ‘‘take’’ a listed species. included as a Category 1 candidate on other park lands or on privately Although the ‘‘take’’ of State-listed species. In the revision of the plant owned land (B. Olson, in litt. 1994). Up plants is prohibited (California Native notice published on September 30, 1993 to 50 percent of the original A. pallida Plant Protection Act, chapter 10, (58 FR 51144), this category remained population on Huckleberry Ridge, division 2, § 1908 and California unchanged. which occurs in both Alameda and Endangered Species Act, chapter 1.5, Section 4(b)(3)(B) of the Act requires Contra Costa Counties, has been division 3, § 2080), State law exempts the Secretary to make findings on developed for housing or is privately the taking of such plants via habitat petitions within 12 months of their owned. This residential development modification or land use changes by the receipt. Section 2(b)(1) of the 1982 has eliminated a large number of A. owner. After CDFG notifies a landowner amendments further requires that all pallida plants and fragmented and that a State-listed plant grows on his or petitions pending on October 13, 1982, reduced the amount of habitat at this her property, State law only requires be treated as having been newly site (Amme and Havlik 1987b). Splitting that the landowner notify the agency ‘‘at submitted on that date. This was the the habitat into smaller, more isolated least 10 days in advance of changing the case for Arctostaphylos pallida because units has and may further alter the land use to allow salvage of such a the 1975 Smithsonian report had been physical environment of the habitat, plant’’ (Native Plant Protection Act, Fish accepted as a petition. On October 13, changing the amount of incoming solar and Game Code, chapter 10, § 1900 et 1982, the Service found that the radiation, water, wind, or nutrients for seq.). petitioned listing of this species was the remnant vegetation (Saunders et al. The California Environmental Quality warranted but precluded by other 1991). In addition, a higher proportion Act (CEQA) requires full disclosure of pending listing actions, in accordance of these fragmented natural areas is the potential environmental impacts of with section 4(b)(3)(B)(iii) of the Act; subject to influences of external factors proposed projects. The public agency notification of this finding was (e.g., invasion of non-native plants, foot with primary authority or jurisdiction published on January 20, 1984 (49 FR traffic, and increased erosion) that over the project is designated as the lead 2485). Such a finding requires the disrupt natural ecosystem processes. agency and is responsible for petition to be recycled annually, B. Overutilization for commercial, conducting a review of the project and pursuant to section 4(b)(3)(C)(i) of the recreational, scientific, or educational consulting with the other agencies Act. The finding was reviewed in purposes. Although this species is not concerned with the resources affected October of 1983 through 1992. In 1993, known to be sought after by collectors, by the project. Section 15065 of the the Service found that the petitioned A. pallida is commercially cultivated CEQA Guidelines requires a finding of listing of Arctostaphylos pallida was (Wells 1993). Many members of this significance if a project has the potential again warranted but precluded by other genus are considered desirable for to ‘‘reduce the number or restrict the higher priority listing actions. landscape use and are collected for range of a rare or endangered plant or Publication of this proposal constitutes cultivation. Overutilization is not animal.’’ Species that are eligible for the final finding for the petitioned currently known to be a threat to this listing as rare, threatened, or action for this species. species, but unrestricted collecting for endangered but are not so listed are scientific or horticultural purposes or given the same protection as those Summary of Factors Affecting the excessive visits by individuals species that are officially listed with the Species interested in seeing rare plants could State or Federal governments. Once Section 4 of the Endangered Species result from increased publicity as a significant effects are identified, the Act (Act) and regulations (50 CFR part result of this proposal. lead agency has the option to require 424) promulgated to implement the C. Disease or predation. mitigation for effects through changes in listing provisions of the Act set forth the Approximately 50 percent of the the project or to decide that overriding procedures for adding species to the Huckleberry Ridge population of considerations make mitigation Federal lists. A species may be Arctostaphylos pallida was affected by infeasible. In the latter case, projects determined to be endangered or a fungal infection in the 1980’s that may be approved that cause significant threatened due to one or more of the attacked the roots of the plants, causing environmental damage, such as five factors described in section 4(a)(1). branch and stem dieback (Amme and destruction of endangered species. These factors and their application to Havlik 1987a, CDFG 1987). This Protection of listed species through Arctostaphylos pallida Eastw. (pallid population remains in poor condition CEQA is, therefore, dependent upon the manzanita) are as follows: (Amme and Havlik 1987a). If the wet, discretion of the lead agency. A. The present or threatened cold weather conditions that induced CDFG and EBRPD jointly developed destruction, modification, or the fungal infection are repeated, the Alameda Manzanita Management curtailment of their habitat or range. another infection could occur, resulting Plan in 1987. This plan has not, The current range of Arctostaphylos in reduced vigor of the population (D. however, been adopted completely. The pallida is unchanged from what was Amme, pers. comm. 1994). mission of the plan was to determine known to exist at the time the species D. The inadequacy of existing and implement management activities was described in 1933; however, the regulatory mechanisms. The State of that would improve the condition of the present populations of this species are California Fish and Game Commission species and help in its recovery (Amme 39312 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules and Havlik 1987b). Currently, EBRPD is fire or other disturbance, regeneration protection and; (ii) specific areas reducing the amount of flammable dead occurs from seed rather than from burls. outside the geographical area occupied plant material in the Huckleberry Ridge The accumulated leaf and bark litter, by a species at the time it is listed, upon population (E. Leong, EBRPD, pers. fallen fruits, and roots of Arctostaphylos a determination that such areas are comm. 1994). The reduction in plant species, however, have a self-inhibitory essential for conservation of the species. litter, in turn, has helped to stimulate effect on seed germination (Amme and ‘‘Conservation’’ means the use of all germination of the species (D. Amme, Havlik 1987b). Fire is believed to methods and procedures needed to pers. comm. 1994). remove these toxic materials and bring the species to the point at which E. Other natural or manmade factors promote subsequent germination of listing under the Act is no longer affecting their continued existence. Arctostaphylos and other herbs and necessary. Fragmentation of Arctostaphylos pallida shrubs (Amme et al. no date). Fire also Section 4(a)(3) of the Act, as habitat caused by residential is necessary to the species to recycle amended, and implementing regulations development at Huckleberry Ridge has limited nutrients in the soil (Amme and (50 CFR 424.12) require that, to the also resulted in introduced exotic Havlik 1987b). maximum extent prudent and landscape and weedy plant species that The roadside spraying of herbicides determinable, the Secretary designate compete with the remnant population has had negative effects on regeneration critical habitat at the time the species is (Amme and Havlik 1987b). Although no of Arctostaphylos pallida along Skyline listed. The Service finds that current residential construction Boulevard (Amme and Havlik 1987a). designation of critical habitat is not threatens the remaining Huckleberry Unauthorized tree cutting also poses a prudent for this species at this time. Ridge populations of A. pallida, the threat to A. pallida. At least two mature Service regulations (50 CFR populations of fewer than 10 plants in A. pallida plants have been killed by 424.12(a)(1)) state that designation of this area are threatened by stochastic unauthorized cutting of eucalyptus critical habitat is not prudent when one events due to the small number of trees, for unknown purposes, that or both of the following situations plants in combination with competition subsequently fell on the A. pallida exist—(1) The species is threatened by plants (Amme and Havlik 1987b). with aggressive plant species and loss of taking or other human activity, and The Service has carefully assessed the habitat from past urbanization. These identification of critical habitat can be best scientific and commercial expected to increase the degree of threat small populations are threatened by information available regarding the past, shading from planted eucalyptus to the species, or (2) such designation of present, and future threats faced by critical habitat would not be beneficial (Eucalyptus sp.), Monterey pines (Pinus Arctostaphylos pallida in determining radiata), and cypresses (Cupressus sp.) to the species. to propose this rule. This species is not Arctostaphylos pallida faces and by competition with aggressive non- now in immediate danger of extinction anthropogenic threats (see Factors A native plant species including French throughout all or a significant portion of and E in ‘‘Summary of Factors Affecting broom (Cytisus monspessulanus), its range. Arctostaphylos pallida exists the Species’’) and occurs entirely on periwinkle (Vinca major), and German as 2 major and 11 small occurrences and non-Federal land. All of the 13 ivy (Senecio mikanioides) (Amme et al. is located almost entirely on EBRPD occurrences of A. pallida are located no date). property. The largest occurrences of A. near or adjacent to residential areas and The genetic integrity of pallida are protected from habitat loss public roads. The publication of precise Arctostaphylos pallida is threatened by resulting from urbanization or land use maps and descriptions of critical habitat hybridization resulting from the conversion. However, A. pallida is in the Federal Register would make this introduction of other species of threatened by shading and competition plant vulnerable to incidents of Arctostaphylos into the vicinity of A. from native and non-native plant vandalism and, therefore, could pallida populations (D. Amme, pers. species, fire suppression, hybridization, contribute to the decline of the species. comm. 1994). At least three other herbicide spraying, disease, tree cutting, Although this species is not known to species of Arctostaphylos have been habitat fragmentation resulting from be sought after by collectors, A. pallida used for landscaping on Manzanita past urbanization, stochastic events, and is commercially cultivated (Wells 1993). Way, a road that borders the inadequate regulatory mechanisms. Many members of this genus are Huckleberry Ridge Preserve. Although not in immediate danger of considered desirable for landscape use Hybridization of A. pallida with at least extinction at this time, Arctostaphylos and are collected for cultivation. The two other species is known to have pallida is likely to become an desirability and accessibility of the occurred (Amme and Havlik 1987a). endangered species in the foreseeable species, therefore, could make the Hybridization could result in a hybrid future if the present threats persist and plants subject to collection if their manzanita swarm taking the place of A. population declines continue. As a precise location was publicized. pallida (Amme and Havlik 1987b, result, the preferred action is to list In addition, critical habitat Amme et al. no date). Arctostaphylos pallida as a threatened designation for the species is not Alteration of the natural fire regime species. Critical habitat is not being prudent due to lack of benefit. At threatens Arctostaphylos pallida by proposed for this taxon at this time, as present, all known populations occur on inhibiting seed germination and discussed below. non-Federal land, with no Federal nutrient recycling that occurs naturally action, authorization, licensing, or after fires. Fires are currently Critical Habitat funding currently occurring on these suppressed on Huckleberry Ridge and Critical habitat is defined in section 3 lands. Due to the small, fragmented Sobrante Ridge to protect the of the Act as: (i) The specific areas populations of this species, any future surrounding residential areas (D. Amme, within the geographical area occupied Federal actions, authorizations, or pers. comm. 1994; A. Olivera, Park by a species, at the time it is listed in funded projects that would appreciably Supervisor, Sobrante Ridge Preserve, accordance with the Act, on which are diminish the value of the known habitat EBRPD, pers. comm. 1994). For non- found those physical or biological for the survival and recovery of the burl-forming manzanitas such as A. features (I) essential to the conservation species may also jeopardize its pallida, fire is a necessary part of of the species and (II) that may require continued existence. A jeopardy reproduction (Keeley 1992). Following special management consideration or opinion would require formal agency Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39313 consultation with the Service on Alameda or Contra Costa County permits are also available for botanical virtually any federally-related project. governments, portions of the plan are in or horticultural exhibition, education Therefore, the Service finds that use by the EBRPD where the species purposes, or special purposes consistent designation of critical habitat for this occurs (D. Amme, pers. comm. 1944; Ed with the purposes of the Act. It is plant is not prudent at this time, Leong, EBRPD, pers. comm. 1994). anticipated that few trade permits because such designation would likely Listing this plant species would would ever be sought or issued because provide no benefit beyond that the necessitate development of a recovery the species is not common in the wild. species would receive by virtue of its plan. Such a plan would bring together It is the policy of the Service, designation as a threatened species. both State and Federal efforts for published in the Federal Register on Further discussion of jeopardy opinions conservation of the plant. The plan July 1, 1994 (59 FR 34272), to identify and consultation is included in the would establish a framework for to the maximum extent practicable at following section. agencies to coordinate activities and the time a species is listed those cooperate with each other in Available Conservation Measures activities that would or would not conservation efforts. The plan would set constitute a violation of section 9 of the Conservation measures provided to recovery priorities and estimate costs of Act. The intent of this policy is to species listed as endangered or various tasks necessary to accomplish increase public awareness of the effect threatened under the Act include them. It also would describe site- of this listing on proposed and ongoing recognition, recovery actions, specific management actions necessary activities within the species’ range. requirements for Federal protection, and to achieve conservation and survival of Collection, damage, or destruction of prohibitions against certain activities. the plant species. Additionally, listed species on Federal lands is Recognition through listing encourages pursuant to section 6 of the Act, the prohibited, although in appropriate and results in conservation actions by Service would be able to grant funds to cases a Federal endangered species Federal, State, and private agencies, the State for management actions permit may be issued to allow groups, and individuals. The Act promoting the protection and recovery provides for possible land acquisition of the species. collection. Arctostaphylos pallida is not and cooperation with the State and The Act and its implementing known to occur on any Federal lands; requires that recovery plans be regulations set forth a series of general however, such activities on non-Federal developed for all listed species. The prohibitions and exceptions that apply lands would constitute a violation of protection required of Federal agencies to all threatened species. All section 9, if conducted in knowing and the prohibitions against certain prohibitions of section 9(a)(2) of the Act, violation of State law or regulations or activities involving listed plants are implemented by 50 CFR 17.71, apply. in violation of State criminal trespass discussed, in part, below. These prohibitions, in part, make it law. The Service is not aware of any Section 7(a) of the Act requires illegal for any person subject to the otherwise lawful activities being Federal agencies to evaluate their jurisdiction of the United States to conducted or proposed by the public actions with respect to any species that import or export, transport in interstate that would be affected by this listing is proposed or listed as endangered or or foreign commerce in the course of a and result in a violation of section 9. threatened and with respect to its commercial activity, sell or offer for sale Questions regarding whether specific critical habitat, if any is being in interstate or foreign commerce, or activities would constitute a violation of designated. Regulations implementing remove and reduce the species to section 9 should be directed to the Field this interagency cooperation provision possession from areas under Federal Supervisor of the Service’s Sacramento of the Act are codified at 50 CFR part jurisdiction. In addition, for plants Field Office (see ADDRESSES section). 402. Section 7(a)(4) of the Act requires listed as endangered, the Act prohibits Requests for copies of the regulations Federal agencies to confer with the the malicious damage or destruction on concerning listed plants and general Service on any action that is likely to areas under Federal jurisdiction and the inquiries regarding prohibitions and jeopardize the continued existence of a removal, cutting, digging up, or permits may be addressed to the U.S. proposed species or result in damaging or destroying of such plants Fish and Wildlife Service, Ecological destruction or adverse modification of in knowing violation of any State law or Services, Endangered Species Permits, proposed critical habitat. If a species is regulation, including State criminal 911 N.E. 11th Avenue, Portland, Oregon listed subsequently, section 7(a)(2) trespass law. Section 4(d) of the Act 97232–4181 (telephone 503/231–2063; requires Federal agencies to ensure that allows for the provision of such facsimile 503/231–6243). activities they authorize, fund, or carry protection to threatened species through Public Comments Solicited out are not likely to jeopardize the regulation. The protection may apply to continued existence of such a species or this species in the future if regulations The Service intends that any final to destroy or adversely modify its are promulgated. Seeds from cultivated action resulting from this proposal will critical habitat. If a Federal action may specimens of threatened plants are be as accurate and as effective as affect a listed species or its critical exempt from these prohibitions possible. Therefore, comments or habitat, the responsible Federal agency provided that their containers are suggestions from the public, other must enter into consultation with the marked ‘‘Of Cultivated Origin.’’ Certain concerned governmental agencies, the Service. exceptions to the prohibitions apply to scientific community, industry, or any None of the populations of agents of the Service and State other interested party concerning this Arctostaphylos pallida occur on Federal conservation agencies. proposed rule are hereby solicited. lands; however, some populations occur The Act and 50 CFR 17.72 also Comments particularly are sought on protected non-Federal lands. The provide for the issuance of permits to concerning: EBRPD owns and manages the land carry out otherwise prohibited activities (1) Biological, commercial, or other where both major populations of A. involving threatened plants under relevant data concerning any threat (or lack pallida occur. The EBRPD and CDFG certain circumstances. Such permits are thereof) to Arctostaphylos pallida; jointly developed the Alameda available for scientific purposes and to (2) The location of any additional Manzanita Management Plan in 1987. enhance the propagation or survival of populations of this species and the reasons Although this plan was not adopted by the species. For threatened plants, why any habitat should or should not be 39314 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules determined to be critical habitat as provided National Environmental Policy Act List of Subjects in 50 CFR Part 17 by section 4 of the Act; (3) Additional information concerning the The Fish and Wildlife Service has Endangered and threatened species, range, distribution, and population size of determined that Environmental Exports, Imports, Reporting and the species; and Assessments or Environmental Impact recordkeeping requirements, and (4) Current or planned activities in the Transportation. subject areas and their possible impacts on Statements, as defined under the the species. authority of the National Environmental Proposed Regulation Promulgation Policy Act of 1969, need not be The Service specifically solicits Accordingly, the Service hereby expert opinion from independent prepared in connection with regulations proposes to amend part 17 subchapter B specialists regarding pertinent scientific adopted pursuant to section 4(a) of the of chapter I, title 50 of the Code of or commercial data and assumptions Endangered Species Act of 1973, as Federal Regulations, as set forth below: relating to taxonomy, population amended. A notice outlining the models, and supportive biological and Service’s reasons for this determination PART 17Ð[AMENDED] was published in the Federal Register ecological information. 1. The authority citation for part 17 Final promulgation of the regulation on October 25, 1983 (48 FR 49244). continues to read as follows: on this species will take into consideration the comments and any References Cited Authority: 16 U.S.C. 1361–1407; 16 U.S.C. additional information received by the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– A complete list of all references cited 625, 100 Stat. 3500, unless otherwise noted. Service, and such communications may herein is available upon request from lead to a final regulation that differs the Field Supervisor, Sacramento Field 2. Section 17.12(h) is amended by from this proposal. Office (see ADDRESSES section). adding the following, in alphabetical The Endangered Species Act provides order under FLOWERING PLANTS, to for a public hearing on this proposal, if Author the List of Endangered and Threatened requested. Requests must be received by Plants, to read as follows: September 25, 1995. Such requests must The primary author of this proposed be made in writing and be addressed to rule is Elizabeth Warne, Sacramento § 17.12 Endangered and threatened plants. the Field Supervisor, Sacramento Field Field Office (see ADDRESSES section). * * * * * Office (see ADDRESSES section). (h) * * * Species Historic range Family name Status When listed Critical Special Scientific name Common name habitat rules FLOWERING PLANTS ******* Arctostaphylos Pallid manzanita ..... U.S.A. (CA) ...... EricaceaeÐHeath .T NA NA pallida. ******* Dated: July 5, 1995. pitkinense (Pitkin Marsh lily), DATES: Comments from all interested Mollie H. Beattie, Plagiobothrys strictus (Calistoga parties must be received by October 9, Director, Fish and Wildlife Service. allocarya), Poa napensis (Napa 1995. Public hearing requests must be [FR Doc. 95–18813 Filed 8–1–95; 8:45 am] bluegrass), Sidalcea oregana ssp. valida received by September 25, 1995. BILLING CODE 4310±55±P (Kenwood marsh checkermallow), and ADDRESSES: Comments and materials Trifolium amoenum (showy Indian concerning this proposal should be sent clover) as endangered pursuant to the to the Field Supervisor, U.S. Fish and 50 CFR Part 17 Endangered Species Act of 1973, as Wildlife Service, Sacramento Field RIN 1018±AD36 amended (Act). These nine species grow Office, 2800 Cottage Way, Room E– in a variety of habitats including valley 1803, Sacramento, California 95825– Endangered and Threatened Wildlife grasslands, meadows, freshwater 1846. Comments and materials received and Plants; Proposed Endangered marshes, seeps, and broad-leaf upland will be available for public inspection, Status for Nine Plants from the forests in Marin, Napa, and Sonoma by appointment, during normal business Grasslands or Mesic Areas of the counties on the central coast of hours at the above address. Central Coast of California California. Habitat loss and degradation, FOR FURTHER INFORMATION CONTACT: Dale Pierce, Assistant Field Supervisor, AGENCY: Fish and Wildlife Service, competition from aggressive plant Sacramento Field Office (see ADDRESSES Interior. species, elimination through plant community succession, grazing, section) (telephone 916/979–2710; ACTION: Proposed rule. inadequate regulatory mechanisms, facsimile 916/979–2723). SUMMARY: The Fish and Wildlife Service collection for horticultural use, and SUPPLEMENTARY INFORMATION: (Service) proposes to list Alopecurus hydrological modifications to wetland aequalis var. sonomensis (Sonoma areas threaten the continued existence Background alopecurus), Astragalus clarianus (Clara of these plants. This proposal, if made Populations of the nine plant species Hunt’s milkvetch), Carex albida (white final, would implement the Federal in this proposed rule are found in sedge), Clarkia imbricata (Vine Hill protection and recovery provisions Sonoma County and east as far as Napa clarkia), Lilium pardalinum ssp. afforded by the Act for these plants. Valley, California. Alopecurus aequalis Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39315 var. sonomensis (Sonoma alopecurus), the pea family (Fabaceae). Astragalus Napa. Two remaining populations occur Carex albida (white sedge), Clarkia clarianus, a slender, sparsely leafy on private land. imbricata (Vine Hill clarkia), Lilium plant, is sparingly covered with sharp, Edward Greene (1892) and Willis pardalinum ssp. pitkinense (Pitkin stiff, appressed hairs. The simple single Jepson (1901) treated Plagiobothrys Marsh lily), Sidalcea oregana ssp. or few basally branching, ascending strictus as Allocarya stricta and valida (Kenwood Marsh stems reach 7 to 20 centimeters (cm) (3 Allocarya californica var. stricta, checkermallow), and Trifolium to 8 inches (in.)) in height. The leaves respectively, before Ivan Johnston amoenum (showy Indian clover) are are alternate, 1.5 to 6.0 cm (0.5 to 2.5 (1923) assigned the present name, found in mesic areas mostly within 33 in.) long, with 5 to 9 uncrowded leaflets Plagiobothrys strictus, to specimens kilometers (km) (15 miles (mi)) of the 2 to 10 millimeters (mm) (0.1 to 0.4 in.) collected on alkaline flats near sulphur central coast of California. Astragalus long. The leaflets are oblong to obovate, springs at Calistoga, Napa County, clarianus (Clara Hunt’s milkvetch), narrow at the base, and notched at the California. Plagiobothrys strictus is a Plagiobothrys strictus (Calistoga tip. Small, pea-like flowers appear from small, erect, annual herb belonging to the borage family (Boraginaceae). allocarya), and Poa napensis (Napa March through April. The petals are Plagiobothrys strictus grows 1 to 4 bluegrass) are found up to 70 km (32 mi) bicolored, with the wings whitish and decimeters (dm) (4 to 15 in.) in height. inland in a variety of habitats around the banner and keel purple in the upper the City of Calistoga in the Napa Valley, The nearly hairless plant has either a third. The keel is longer and wider than California. Urbanization, road single stem or branches from near the the wings. The horizontal to declining construction, a possible water storage base. The linear lower leaves are 4 to 9 seed pods are narrow, linear, slightly project, airport construction, cm (1.5 to 4 in.) long. Small, usually development of hot springs into curved, pointed at both ends, and occur paired, white flowers appear in March commercial resorts, agricultural land on a 1.5 to 2.5 mm (0.06 to 0.10 in.) long to April in a slender, unbranched conversion, wetland drainage, waste slender stalk. Astragalus rattanii var. inflorescence. The fruit is an egg-shaped disposal, competition with aggressive jepsonianus looks similar to A. nutlet about 1.5 mm (0.6 in.) long, plant species, collection for clarianus, but grows 10 to 36 cm (4 to keeled on the back, with wart-like horticultural use, and livestock grazing 14 in.) tall, has larger flowers, and seed projections without any prickles. have destroyed much of the habitat and pods that are not elevated on a seed Plagiobothrys greenei, P. lithocaryus, P. numerous populations of these nine stalk. mollis var. vestitus, P. stipitatus, and P. plant species. Historically, these nine Astragalus clarianus is found on thin, tener occur in vernal pools and have species have not been known to occur rocky clay soils derived from volcanic ranges that overlap with the range of outside of Alameda, Marin, Mendocino, substrates in foothill grasslands, in Plagiobothrys strictus, but they do not Napa, Santa Clara, Solano, and Sonoma openings in Arctostaphylos (manzanita), resemble P. strictus. counties. and in openings in Quercus douglasii Plagiobothrys strictus is found in vernal pools adjacent to and fed by hot Discussion of Inland Species (blue oak) woodlands over an elevational range of 75 to 225 meters (m) springs and small geysers in foothill The habitats in which Plagiobothrys (240 to 750 feet (ft)). Historically, six grasslands at an elevational range of 90 strictus and Poa napensis can be found populations were known from Napa and to 160 m (300 to 500 ft). Three historical include meadows near small thermal Sonoma counties. Two historical populations occurred within a 3 km (2 hot springs underlain by gravelly loams populations have been extirpated by mi) radius of Calistoga, Napa County, mixed with clays that are associated California. One population has been urbanization and viticulture (California with high water tables. High extirpated by urbanization and Natural Diversity Data Base (CNDDB) concentrations of boron, arsenic, and agricultural land conversion. One 1993). The population at the type sulfates, which are usually toxic to remaining population of P. strictus locality was reduced in size by the plants, are found in thermal pools and occurs at a small, undeveloped thermal creation of Lake Hennessey in the meadows. A few unique plants have hot spring. The other population occurs evolved under these normally adverse 1940s. Currently, three populations are at the Calistoga Airport in the center of conditions, including P. strictus and P. found in northwestern Napa County and the city of Calistoga. The combined area napensis. Astragalus clarianus occurs in one on the eastern side of adjacent of the two remaining populations in openings within valley grasslands or in Sonoma County. Collectively, the four Napa County is less than 80 square (sq) broad-leaf upland forests. Astragalus populations of A. clarianus are scattered m (900 sq ft) (California Native Plant clarianus, P. strictus, and P. napensis over approximately 16 hectares (ha) (40 Society (CNPS) 1990). Most of the have only been found in Napa and acres (ac)) (CNDDB 1994). ‘‘The trend thermal hot springs in Napa County Sonoma counties. Large amounts of for Clara Hunt’s milkvetch is one of have been developed. The remaining habitat have been lost to urbanization, decline as a result of habitat destruction undeveloped hot springs occupy very road construction, lake building, airport and modification’’ (California few acres (Dave Steiner, Napa County construction, and development of hot Department of Fish and Game (CDFG Soil Conservation Service, pers. comm. springs into commercial resorts. 1991)). The four populations of A. 1993). ‘‘The overall trend for Calistoga Willis Jepson (1925a) first described clarianus are variously threatened by popcornflower (Plagiobothrys strictus) is Astragalus clarianus in 1909 from urbanization, recreational activities, one of decline’’ (CDFG 1991). The specimens collected by Clara Hunt in airport maintenance, elimination due to species is threatened by recreational the Conn Valley near St. Helena, Napa plant community succession, activities, airport maintenance, County, California. Axel Rydberg (1929) competition from nonnative weed urbanization, inadequate regulatory and Willis Jepson (1936) treated this species, inadequate regulatory mechanisms, and stochastic events. taxon as Hamosa clariana and mechanisms, stochastic events, and a Both populations occur on private land Astragalus rattani var. clarianus, possible future water storage project. and neither is protected. respectively. Rupert Barneby (1950) re- One population occurs in the Bothe Alan Beetle (1947) first described Poa established Astragalus clarianus as a Napa Valley State Park. Another napensis in 1946 from specimens that full species. Astragalus clarianus is a population occurs on the shore of Lake he collected in a meadow moistened by low-growing annual herb belonging to Hennessey and is owned by The City of seepage from hot springs, 3 km (2 mi) 39316 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules north of Calistoga at Myrtledale Hot exposure of this inland area to the var. aequalis by a more robust, upright Springs, Napa County, California. Poa influence of cool, moist ocean air appearance, generally wider panicle, napensis is an erect, tufted perennial currents. Many species in this region violet-gray tinged spikelets, and longer bunchgrass belonging to the grass family reach their southernmost limit and are awn (Rubtzoff 1961; W. Crins, Ontario (Poaceae) that grows to 1 dm (4 in.) in often separated by long distances from Ministry of Natural Resources, in litt. height. Leaves are folded, stiffly erect, 1 the major portions of their ranges 1993). mm (0.04 in.) wide, with the basal (Rubtzoff 1953). Historically, these five Alopecurus aequalis var. sonomensis leaves 20 cm (8 in.) long and upper stem species were not known to occur is currently known from only five leaves to 15 cm (6 in) in length. A few outside Sonoma and Marin counties natural populations. The three sites in stiff, erect flowering stems appear in (CNDDB 1993). Carex albida occurs in Sonoma County are privately owned May and grow 7 dm (27 in) in height. a sphagnum bog in Lower Pitkin Marsh, and the two sites on the Point Reyes Flower clusters occur as a pale green to Sonoma County. Alopecurus aequalis National Seashore, in Marin County, are purple, condensed, oblong-oval panicle var. sonomensis, L. pardalinum ssp. federally owned (CNDDB 1993; V. 10 to 15 cm (4 to 6 in) long and 2 to pitkinense, and S. oregana ssp. valida Norris, Marin CNPS, pers. comm. 1993). 5 cm (0.8 to 2.0 in) wide. Poa napensis are restricted to moist soils in The elevational range of the species is most closely resembles P. unilateralis permanent freshwater marshes in from 6 to 210 m (20 to 680 ft). The total (ocean bluff bluegrass) but differs in leaf Sonoma and Marin counties. Clarkia number of plants is estimated at 200 (B. and panicle form as well as habitat. imbricata occurs on acid sands and has Guggolz, CNPS, pers. comm. 1993). Poa napensis is found in valley not been found outside a very restricted Alopecurus aequalis var. sonomensis grasslands and moist, alkaline meadows range in Sonoma County. Historically, was known historically from 16 fed by hot springs. The elevational range the widest ranging of the nine species is populations. The historical range was of this plant is 100 to 120 m (340 to 400 Trifolium amoenum, which occurred approximately 48 km (30 mi), reaching ft) within a radius of 6 km (4 mi) of from Mendocino County south to north from Point Reyes Peninsula to Calistoga. Historically, the range of this Sonoma, Marin, Alameda and Santa Guerneville and east to Cunningham plant has been diminished by the Clara counties and east to Napa and Marsh. Although fewer sites are now development of recreational hot springs Solano counties. Trifolium amoenum present, the range of the species has and the growth of the town of Calistoga. typically was found in low, wet swales changed little. The numbers of The larger population of P. napensis and grasslands. This species was populations of this species are declining near Myrtledale Hot Springs occurs in a considered extinct until 1993, when a due to competition from nonnative 100 sq m (1,100 sq ft) area, with an single plant was discovered in Sonoma plant species, trampling and grazing by additional small population of 100 County. Seeds from this individual were cattle, and low regeneration. The plants just across an adjoining road collected and T. amoenum currently species is also threatened by inadequate (CDFG 1979). Both remaining exists only in cultivation. The land that regulatory mechanisms. Two attempts to populations of P. napensis are most recently supported this taxon is reintroduce the species in the Point dependent on moisture derived from privately owned. Habitat of this species Reyes National Seashore failed. One adjacent hot springs or overland runoff. has been lost to land conversion for attempt was destroyed by a flash flood Any development that would alter the urbanization or agriculture, livestock (CNDDB 1992; V. Norris, pers. comm. hydrology or flow from these hot grazing, wetland drainage, waste 1993). springs would be detrimental to these disposal, and competition with John Bigelow collected the type populations (CDFG 1979). ‘‘The trend aggressive species. specimen of Carex albida in 1854 on for Napa bluegrass is one of decline’’ On May 7, 1955, Peter Rubtzoff (1961) Santa Rosa Creek, Sonoma County, (CDFG 1991). Poa napensis is collected Alopecurus aequalis var. California. Liberty Bailey described the threatened by recreational activities, sonomensis in Guerneville Marsh, species in 1889. Specimens of the plant airport maintenance, urbanization, Sonoma County, California. He subsequently collected by John T. inadequate regulatory mechanisms, and described the species in 1961. Howell and John W. Stacey in 1937 in stochastic events. The two extant Specimens of this taxon collected as Pitkin Marsh were described by them as populations are on private land and are early as 1880 in Sonoma and Marin C. sonomensis (Stacey 1937). Howell not protected. counties had been identified as (1957) later stated that the herbarium Alopecurus aequalis Sobol., a specimen of C. albida had been Coastal Species circumboreal foxtail grass found as far misinterpreted by Stacey and others and Alopecurus aequalis var. sonomensis, south as Mendocino County. These that C. sonomensis is a synonym of C. Carex albida, Lilium pardalinum ssp. specimens, however, deviated albida. pitkinense, and Sidalcea oregana ssp. considerably from typical A. aequalis Carex albida is a loosely tufted valida are restricted to permanent and were identified by Rubtzoff as A. perennial herb in the sedge family freshwater wetlands in or near Pitkin aequalis var. sonomensis. (Cyperaceae). The stems are triangular, Marsh, north of San Francisco Bay, Alopecurus aequalis var. sonomensis 4 to 6 dm (1.3 to 2.0 ft) tall, erect, and California. Clarkia imbricata is is a tufted perennial in the grass family longer than the leaves. The leaves are restricted to a very narrow range in open (Poaceae) that reaches 30 to 75 cm (12 flat and 3 to 5 cm (1 to 2 in.) wide with grasslands near Pitkin Marsh. The Pitkin to 30 in.) in height. The stems are closed sheaths. The inflorescence Marsh area, in which several disjunct mostly erect and either straight or consists of 4 to 7 ovoid or obovoid to and restricted species are found, is weakly bent near the base. The leaf oblong spikelets 8 to 18 mm (0.3 to 0.7 contained in the Franciscan area, blades are up to 7.5 mm (0.3 in.) wide. in.) long. The achenes (fruits) are three- described by Jepson (1925b) as a portion The panicle is 2.5 to 9.0 cm (1.0 to 3.5 sided when mature. The sacs (perigynia) of the Coast Ranges that supports a high in.) long and 4 to 8 mm (0.1 to 0.3 in.) surrounding the achenes are light green degree of plant endemism. The Coast wide. The spikelets are usually tinged to yellow-green when mature and 3.0 to Ranges in this area, south of the city of violet-gray near the tip. The awn is 4.5 mm (0.1 to 0.2 in.) long. Several Healdsburg, are lower in elevation in straight, and exceeds the lemma body by traits distinguish C. albida from other comparison to areas north of 1.0 to 2.5 mm (0.04 to 0.1 in.). This closely related sedges. Carex albida has Healdsburg, thus increasing the variety is distinguished from A. aequalis inflorescences with staminate flowers Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39317 above the pistillate flowers, especially Clarkia imbricata is an erect, annual Lilium pardalinum ssp. pitkinense is on the terminal inflorescence, lateral herb in the evening-primrose family an herbaceous, rhizomatous perennial spikelets, and leaves that are shorter (Onagraceae). The stems grow to 6 dm in the lily family (Liliaceae). The than the stems and 3 to 5 mm (0.1 to 0.2 (2.5 ft) tall, unbranched or with slender, erect stems reach 1 to 2 m (3 in.) wide. numerous short branches in the upper to 6 ft) in height. Leaves are yellow- Carex albida, which was thought to be parts. This plant is densely leafy, with green, up to 14 cm (5.5 in.) long, and 1 extinct, is currently known from only entire, lanceolate leaves 2.0 to 2.5 cm to 2 cm (0.4 to 0.8 in.) wide. The leaves one population, discovered in 1987. The (0.8 to 1.0 in.) long and 4 to 7 mm (0.2 are generally scattered along the stem, population contains approximately 800 to 0.3 in.) broad that are ascending and but in some plants occur in 2 or 3 to 1,000 plants on privately owned overlapping. The showy inflorescences whorls of 3 to 6 leaves near the middle property in Sonoma County (CDFG appear from June through July. The of the stem. The inflorescence is a 1993a, CNDDB 1993). Carex albida was flowers are grouped closely together and terminal raceme. The flowers are large, known historically from four other each flower has a conspicuous funnel- showy, and nodding. The petals, which locations: the type locality on Santa shaped tube at its base. Each flower has are reflexed from the middle, are red at Rosa Creek, one site in Perry Marsh, and four fan-shaped, lavender petals 2.0 to the outer edge changing to yellow at the two sites in Pitkin Marsh, all in Sonoma 2.5 cm (0.8 to 1.0 in.) long with a V- center with small, deep maroon dots County. The marsh habitat containing C. shaped purple spot extending from the mostly within the yellow zone. Anthers albida at the Santa Rosa Creek site was middle to the upper margin of the petal. are purple-brown. The fruit is an destroyed in the 1960s by Clarkia purpurea ssp. viminea is the elliptical capsule containing many channelization and other alterations to only other Clarkia taxon with which C. rounded seeds (CDFG 1993b). The Santa Rosa Creek (B. Guggolz, in litt. imbricata can be confused. Clarkia species flowers from June to July. Lilium 1993). The Perry Marsh site has been purpurea ssp. viminea has a much pardalinum ssp. pitkinense is used for cannery waste disposal shorter, funnel-shaped tube and does distinguished from L. pardalinum ssp. beginning in 1971, causing the probable not have the relatively broad, ascending, pardalinum by generally shorter petals loss of the population (CNDDB 1993). overlapping leaves of C. imbricata. and anthers. One of the Pitkin Marsh populations has Historically, Clarkia imbricata has Lilium pardalinum ssp. pitkinense not been seen since 1951. Permission for never been common. This taxon is only grows only in permanently saturated, access to the second Pitkin Marsh site known from two populations found in sandy soils in freshwater marshes and grasslands on acidic sand in Sonoma wet meadows that are 35 to 60 m (115 has been denied since 1976. The County. The type locality is presumed to 200 ft) in elevation. Only three occurrence has not been confirmed to have been extirpated by changing populations of L. pardalinum ssp. since that time. Pitkin Marsh, which has land uses (CNDDB 1994, B. Guggolz, in pitkinense were recorded historically. become drier in recent years because of litt. 1993). The remaining natural All the sites are found in Sonoma the addition of wells and other population was the source population County on privately owned land. The construction that have altered marsh for cuttings that were transplanted into three populations, located over a hydrology, likely no longer supports the a preserve in 1974. The elevational distance of 13 km (8 mi), are presumed species (B. Guggolz, in litt. 1993). The range for the two extant populations is extant. Since 1975, access to one of the known remaining population of C. 60 to 75 m (200 to 250 ft). The two sites has been denied by the landowner albida is found in a sphagnum bog near populations are 1.2 km (0.75 mi) apart (CNPS 1988a). As a result, the status of Pitkin Marsh, between 45 and 60 m (150 and occur on privately owned land. The this population has not been confirmed. and 200 ft) in elevation. The original natural population contains 2,000 to Currently, 200 individual plants remain habitat of all populations occurred 5,000 plants and occurs on an open, flat on the two known sites (CDFG 1993b; B. within an area of approximately 10 sq grassland surrounded by a variety of Guggolz, pers. comm. 1993). The extent km (4 sq mi). The species occurs in introduced trees and shrubs. The of the two populations has declined conjunction with Lilium pardalinum planted population, located in a 0.6 ha from loss of habitat from urbanization ssp. pitkinense, spikerush (Eleocharis (1.5 ac) preserve, has fluctuated between and competition with blackberries spp.), rush (Juncus spp.), and 200 and 300 plants. The preserve is (Rubus spp.) (CDFG 1993b). Collection Himalayan blackberry (Rubus discolor). owned and managed by the California of plants, seeds, and bulbs for Carex albida is threatened by potential Native Plant Society. The planted horticultural use, competition from alteration of hydrology from changes in population recently has expanded its invasive plant species, potential land use or potential disturbance from range onto the adjacent private parcel disturbance from a proposed a proposed wastewater treatment east of the preserve, where 70 to 100 subdivision, grazing, stochastic events, project, inadequate regulatory plants were found in 1993. Both inadequate regulatory mechanisms, and mechanisms, competition from populations are threatened variously by low plant numbers threaten this species nonnative species, stochastic events, agricultural land use conversion, (Lynn Lozier, The Nature Conservancy small population size, and potential inadequate regulatory mechanisms, (TNC), in litt. 1990). disturbance from repair or alteration of stochastic events, and damage Edward L. Greene (1897) first a nearby State highway. associated with trespassers collecting described Sidalcea oregana ssp. valida Frank H. Lewis and Margaret Lewis other rare plants found in the preserve in June, 1894, based on material he (1953) described Clarkia imbricata from (B. Guggolz, in litt. 1993). collected from Knight’s Valley, Sonoma specimens they collected on July 10, Lawrence Beane and Albert M. County, California. Since then, this 1951, along the roadside of Vine Hill Vollmer first collected Lilium taxon has been known as S. maxima Road, near Pitkin Ranch. Searches for pardalinum ssp. pitkinense on July 20, (Baker), S. oregana var. spicata (Jepson), this plant at the type locality have been 1954, in Pitkin Marsh, Sonoma County, S. eximia (Baker), and S. spicata ssp. made since 1974, but no plants have California. Beane (1955) described the valida (Wiggins) (CNPS 1988c). Charles been observed (CNDDB 1994). plant as Lilium pitkinense. The plant Hitchcock (1957) treated the genus Currently, C. imbricata is known from subsequently was treated as a Sidalcea and recognized four two populations in southern Sonoma subspecies of L. pardalinum (Skinner subspecies, including S. oregana ssp. County. 1993). valida. 39318 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Sidalcea oregana ssp. valida is a to 16 mm (0.5 to 0.6 in.) long and occur Federal Register (41 FR 24523) to perennial herb in the mallow family in dense, round or ovoid heads, 2 to 3 determine approximately 1,700 vascular (Malvaceae). The plants are 1 to 2 m (3 cm (0.8 to 1.2 in.) long. Flowers appear plant species to be endangered species to 6 ft) tall. The leaves are rounded. from April to June. Trifolium amoenum pursuant to section 4 of the Act. The list Lower leaves have 5 to 7 shallow lobes; is similar in appearance to T. macraei, of 1,700 plant taxa was assembled on upper leaves are generally smaller and but is generally larger and the flowers the basis of comments and data received divided into 3 to 5 entire, lanceolate lack subtending bracts. by the Smithsonian Institution and the segments. The compound inflorescence In 1993, Peter Connors, Bodega Service in response to House Document consists of densely flowered, spike-like Marine Laboratory, discovered a single No. 94–51 and the July 1, 1975, Federal racemes 2 to 5 cm (0.8 to 2.0 in.) long. Trifolium amoenum plant in Sonoma Register publication. Astragalus Petals are 1.0 to 1.5 cm (0.4 to 0.6 in.) County. The species was previously clarianus, Carex albida, Clarkia long, notched at the apex, and deep considered extinct. The land on which imbricata, Lilium pardalinum ssp. pink-mauve. The flowers appear from this plant was found is privately owned pitkinense, Poa napensis, and Trifolium late June to September. Sidalcea and is currently for sale (P. Connors, amoenum were included in the June 16, oregana ssp. valida differs from S. Bodega Marine Laboratory, pers. comm. 1976, Federal Register document. oregana ssp. eximia in having a hairless 1994; CNDDB 1994). This property General comments received in calyx. currently is not being used. If it is sold, relation to the 1976 proposal were Sidalcea oregana ssp. valida has it may be converted to residential use, summarized in an April 26, 1978, never been recorded as abundant and similar to other land parcels Federal Register publication (43 FR only two occurrences, both located on surrounding this site (P. Connors, pers. 17909). The Endangered Species Act privately owned land, have ever been comm. 1994). In 1994, Dr. Connors grew Amendments of 1978 required that all known. Sidalcea oregana ssp. valida 18 plants in cultivation from seed proposals over 2 years old be inhabits freshwater marshes produced by the single plant found in withdrawn. A 1-year grace period was approximately 150 m (490 ft) in 1993 (Connors 1994). These plants were given to those proposals already more elevation, at Kenwood Marsh and grown to produce seed for later than 2 years old. In the December 10, Knight’s Valley, Sonoma County, reintroduction efforts (P. Connors, pers. 1979, Federal Register (44 FR 70796), California. The two sites are located comm. 1994). The soil seed bank in the the Service published a notice of approximately 29 km (18 mi) apart. The remaining natural habitat within the withdrawal of the June 6, 1976, Knight’s Valley population covers less species’ historical range may contain T. proposal, along with four other than 0.1 ha (0.25 ac). This population amoenum seed. Should T. amoenum be proposals that had expired. was reported to have fewer than 100 found in these areas, the species would The Service published a Notice of plants in 1979 (CDFG 1987) and likely be threatened by urbanization, Review for plants on December 15, 1980 approximately 60 plants in 1993 (N. competition with nonnative plants, land (45 FR 82480). This notice included Wilcox, State Water Resources Control conversion to agriculture, livestock Alopecurus aequalis var. sonomensis, Board, pers. comm. 1993). The grazing, stochastic events, and Astragalus clarianus, Carex albida, Kenwood Marsh population contained inadequate regulatory mechanisms. Clarkia imbricata, Lilium pardalinum approximately 70 individuals in 1993 ssp. pitkinense, Plagiobothrys strictus, Previous Federal Action (A. Howald, CDFG, pers. comm. 1993). Poa napensis, Sidalcea oregana ssp. Both populations are adversely affected Federal government actions on these valida, and Trifolium amoenum as by trampling and reduced seed set nine species began as a result of section Category 1 candidate species. Category 1 resulting from cattle grazing. Potential 12 of the Endangered Species Act of taxa are those for which the Service has alteration of the hydrology of Kenwood 1973, as amended (16 U.S.C. 1531 et on file substantial information on Marsh due to urbanization and water seq.) (Act) which directed the Secretary biological vulnerability and threats to withdrawal threatens the species (A. of the Smithsonian Institution to support preparation of listing proposals. Howald, pers. comm. 1993). The plants prepare a report on those plants On November 28, 1983, the Service may also suffer from competition by considered to be endangered, published a supplement to the Notice of common tule (Scirpus acutus) and threatened, or extinct in the United Review in the Federal Register (48 FR yellow star-thistle (Centaurea States. This report, designated as House 53640). This supplement changed solstitialis), and from periodic Document No. 94–51, was presented to Alopecurus aequalis var. sonomensis, maintenance of the Sonoma Aqueduct Congress on January 9, 1975, and Astragalus clarianus, Plagiobothrys located in Kenwood Marsh (A. Howald, included Astragalus clarianus, Carex strictus, Poa napensis, Sidalcea oregana pers. comm. 1993). This species is also albida, Clarkia imbricata, Lilium ssp. valida, and Trifolium amoenum threatened by stochastic events and pardalinum ssp. pitkinense (as L. from Category 1 to Category 2 inadequate regulatory mechanisms. pitkinense), Plagiobothrys strictus, Poa candidates. Category 2 taxa are those for Edward L. Greene described Trifolium napensis, and Trifolium amoenum as which data in the Service’s possession amoenum in 1891 from specimens that endangered and Sidalcea oregana ssp. indicate listing is possibly appropriate, he collected near Vanden, Solano valida as threatened. The Service but for which substantial data on County, California, in 1890. Historically, published a notice in the July 1, 1975, biological vulnerability and threats are this species has been found in a variety Federal Register (40 FR 27823) of its not currently known or on file to of habitats including low, wet swales, acceptance of the report of the support proposed rules. grasslands, and grassy hillsides up to Smithsonian Institution as a petition The plant notice was revised again on 310 m (1,020 ft) in elevation. This within the context of section 4(c)(2) September 27, 1985 (50 FR 39526). The annual plant, which is a member of the (petition provisions are now found in candidate status of eight of the plant pea family (Fabaceae), is hairy, erect, Section 4(b)(3) of the Act) and its species remained unchanged in this and grows to 1 to 6 dm (4 to 27 in.) in intention thereby to review the status of notice. Trifolium amoenum was height. The leaves are pinnately the plant taxa named therein. The above included as a Category 2* candidate, compound, widely obovate, and 2 to 3 eight taxa were included in the July 1, indicating that the Service had evidence cm (0.8 to 1.2 in.) long. The flowers, 1975, notice. On June 16, 1976, the that the species might be extinct. which are purple with white tips, are 12 Service published a proposal in the Another revision of the plant notice was Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39319 published on February 21, 1990 (55 FR (Greene) I.M. Johnston (Calistoga public (CDFG 1989). The city of Napa 6184). In this revision, Astragalus allocarya), Poa napensis Beetle (Napa has repaired damage to the fence several clarianus, Plagiobothrys strictus, Poa bluegrass), Sidalcea oregana (Nutt.) times (A. Howald, pers. comm. 1993). napensis, and Sidalcea oregana ssp. Gray ssp. valida (Greene) C.L. Hitchcock Another population of Astragalus valida were returned to Category 1 (Kenwood Marsh checkermallow), and clarianus exists in Bothe Napa Valley status. The Service made no changes to Trifolium amoenum Greene (showy State Park. Plant numbers have ranged the status of any of the nine species in Indian clover) are as follows: from 8 plants in 1988 to 101 plants in the plant notice published on A. The Present or Threatened 1993 on a 1 ha (2 ac) monitoring site (J. September 30, 1993 (58 FR 51144). The Destruction, Modification, or Ruygt, in litt. 1993). The larger portion Service approved Category 1 status for Curtailment of Their Habitat or Range of the population of A. clarianus outside Alopecurus aequalis var. sonomensis on of the monitoring zone occurs sparsely August 26, 1993. However, the status Habitat destruction, including on a 6 ha (15 ac) area. This area has change was inadvertently not published urbanization, land use changes, and been historically protected by placing in the plant notice published on alteration in hydrology of springs poses brush piles next to a foot trail to divert September 30, 1993. Since the the most serious threat to the survival of people away from the population (Bill publication of that notice, additional most of these nine plant species. Grummer, Bothe Napa Valley State Park, information has been received on the Inland Species California Dept. of Parks and Recreation, status of Trifolium amoenum, indicating Astragalus clarianus is known pers. comm. 1993). Although the general its rediscovery. The Service, therefore, plan for the park indicates a believes that sufficient information is currently from three populations in Napa County and one in Sonoma campground to be placed over the larger now available to support the listing of portion of A. clarianus, the Service does these nine species. County (CNDDB 1993, CNPS 1989). The four populations face a variety of threats not consider this plan as an imminent Section 4(b)(3)(B) of the Act requires threat because of lack of funding and the Secretary to make findings on to their continued existence. Historically, one population in Napa possible revisions to the park plan (B. pending petitions within 12 months of Grummer, pers. comm. 1993). Although their receipt. Section 2(b)(1) of the 1982 County occupied a larger area but the creation of Lake Hennessey in the 1940s the campground development may be amendments further requires that all relocated away from the population of petitions pending on October 13, 1982, inundated much of the site (Lynn Lozier, pers. comm. 1993). The city of A. clarianus, the Service considers that be treated as having been newly increased recreational use from an submitted on that date. This was the Napa owns the lake and uses Lake Hennessey as a water source for the additional campground in this park case for Astragalus clarianus, Carex constitutes a potential threat. albida, Clarkia imbricata, Lilium town. Recently, the city of Napa Another population of Astragalus pardalinum ssp. pitkinense, conducted a feasibility study that clarianus occurs nearer to the city of Plagiobothrys strictus, Poa napensis, considered raising the elevation of the Santa Rosa in eastern Sonoma County. Sidalcea oregana ssp. valida, and dam as part of a project to increase Trifolium amoenum because the 1975 water storage for the city. Such an This population, scattered over 6 ha (15 Smithsonian report had been accepted elevation change would have raised the ac), is on privately owned land under a as a petition. The Service found that the lake level, submerging the population of voluntary protection agreement with petitioned listing of those eight taxa was A. clarianus (Jake Ruygt, CNPS, in litt. TNC. Upslope and adjacent to this warranted but precluded by other higher 1993). This increased water-storage population is the 454 ha (1,350 ac) priority listing actions. The finding was project at Lake Hennessey has been approved subdivision, Saddle Mountain reviewed annually in October from 1983 determined by the city of Napa to be too Development. Soil erosion from through 1993. Publication of this costly (Don Ridenhour, Public Works proposed road and pad construction for proposal constitutes the final finding for Dept., city of Napa, pers comm. 1993). house lots potentially threatens this the petitioned action for these eight Any future water storage project that population of A. clarianus (J. Ruygt, in species. would involve increasing the height of litt. 1993). the dam and raising the level of Lake Over 70 percent of the original habitat Summary of Factors Affecting the Hennessey would constitute a threat to of Plagiobothrys strictus has been Species the population of A. clarianus due to its destroyed by urbanization and Section 4 of the Endangered Species proximity to the lakeshore. In December viticulture (CNPS 1990). The two Act and regulations (50 CFR part 424) 1990, this remnant population was remaining populations of P. strictus are promulgated to implement the listing nearly destroyed when dredge spoils threatened by urbanization (CNDDB provisions of the Act set forth the from the lake were placed on top of it 1994, CNPS 1990). One population site procedures for adding species to the (A. Howald, pers. comm. 1993). Eight occurs at the Calistoga Airport. The Federal lists. A species may be plants of A. clarianus were counted at construction of the airport fragmented determined to be an endangered or this site in 1991, 325 plants in 1992, and and reduced this population to fewer threatened species due to one or more 156 plants in 1993 (CDFG 1989; J. than 100 plants. Further development at of the five factors described in Section Ruygt, in litt. 1993). The city of Napa, this site could potentially threaten this 4(a)(1). These factors and their in cooperation with CDFG, removed population (J. Ruygt, in litt. 1993). application to Alopecurus aequalis most of the dredge spoils and fenced the Another population of P. strictus is Sobol. var. sonomensis Rubtzoff 1 ha (2 ac) area, placing a gate in the scattered over a 4 ha (10 ac) area of (Sonoma alopecurus), Astragalus fence for fishing access to the lake. private land near Myrtledale Hot clarianus Jepson (Clara Hunt’s Disturbance associated with dredge Springs. This population has been milkvetch), Carex albida Bailey (white spoils removal resulted in proliferation bisected by an asphalt road. The sedge), Clarkia imbricata Lewis and of nonnative weeds that further threaten landowner has proposed to build a Lewis (Vine Hill clarkia), Lilium the site, as discussed below under convalescent community on this site, pardalinum Kellogg. ssp. pitkinense Factor E. The fenced and gated area but has been unsuccessful due to (Beane and Vollmer) M. Skinner (Pitkin remains a favorite fishing access to the current zoning status (CDFG 1988; J. Marsh lily), Plagiobothrys strictus lake and receives significant use by the Ruygt, in litt. 1993). 39320 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Historically, the habitat of each of the maintenance (B. Guggolz, in litt. 1993). on privately owned property that is two remaining populations of Poa Another population of C. imbricata in currently for sale (CNDDB 1994). If this napensis has been reduced by the Sonoma County has been extirpated as property is developed or altered, it may development of health spas and resorts a result of Christmas tree farming and no longer contain suitable habitat for T. in the city of Calistoga and other weed control activities (B. Guggolz, in amoenum. In addition, the human construction activities at the Calistoga litt. 1993). The larger of the two extant population of Sonoma County is Airport (CNPS 1987). The remnant populations of C. imbricata is expected to grow by 21.4 percent by the population of P. napensis at the threatened by changing land use such as year 2000 (California Department of Calistoga Airport was thought to be agricultural land conversion (B. Finance 1992), and any remaining T. extirpated as a result of construction Guggolz, in litt. 1993). amoenum habitat may be converted to activities in 1981, because no plants One population of Lilium pardalinum urban use. were found that year. By 1987, however, ssp. pitkinense was largely destroyed by B. Overutilization for Commercial, 500 plants were counted at the airport urbanization in 1961; however, Recreational, Scientific, or Educational location (CDFG 1979; J. Ruygt, in litt. approximately 200 plants remain (CDFG Purposes 1993). Because Poa napensis and 1993b; B. Guggolz, pers. comm. 1993). Plagiobothrys strictus co-occur at the Although a subdivision is currently One of the two populations of Lilium Calistoga Airport and another site in the planned for the area surrounding a pardalinum ssp. pitkinense has been city of Calistoga, the threats from portion of this population, the nearly extirpated by uncontrolled urbanization, including construction of landowner has agreed to place the L. collection of plants, seeds, and bulbs for a hospital, are similar for both species pardalinum ssp. pitkinense habitat area horticultural use. This species was at these sites (CNPS 1987, 1990; J. in a conservation easement. The abundant historically at the Pitkin Ruygt, in litt. 1993). agreement between CDFG and the Marsh site, but the removal of plants landowner places all sensitive natural and bulbs for horticultural use has Coastal Species resource areas in a conservation reduced this population to two plants The single known population of Carex easement for long-term management, (CDFG 1993b). Similar activities at the albida is located approximately 46 m with CDFG as easement holder (A. remaining site, containing only 200 (150 ft) from State Highway 116, which Buckmann, CDFG, in litt. 1993). plants, would result in the extinction of is a potential source of disturbance. Any Wetland fills at Pitkin Marsh have the species (B. Guggolz, pers. comm. change in hydrology of the area lowered the water table and resulted in 1993). Of the two remaining populations resulting from highway construction or drier soil conditions, which has of Clarkia imbricata, one population is maintenance or change in land use negatively affected L. pardalinum ssp. found in a preserve owned by the would adversely affect the population. pitkinense. This change in habitat California Native Plant Society (CNPS). Draining the wetland would not only quality is considered an ongoing threat Although CNPS has attempted to directly impact the species, but would to the population at Pitkin Marsh, since discourage unauthorized collection by encourage the spread of blackberry there are only two plants remaining fencing the preserve and by not (Rubus spp.). Invading blackberry vines (CDFG 1993b). publicizing the exact location of the site, have become dominant in other parts of The two populations of Sidalcea trespassers have damaged the fence, Pitkin Marsh that have been drained oregana ssp. valida are threatened by trampled the vegetation, and collected (CNDDB 1993; B. Guggolz, in litt. 1993). permitted and apparently unauthorized seed of C. imbricata on several A wastewater treatment project for the water diversions from the unnamed occasions (B. Guggolz, in litt. 1993). Any cities of Forestville and Graton, Sonoma stream that feeds Kenwood Marsh. In occurrences of Trifolium amoenum that County, is proposed to be built 0.3 km the past, unauthorized diversions have may be discovered in the future also (0.2 mi) from the single extant removed all water from the stream may attract collectors of plants or seed population of Carex albida. Potential channel, eliminating one source of because the species was previously impacts from this project include surface water to the marsh (A. Howald, considered to be extinct. Overutilization application of recycled wastewater and pers. comm. 1993). Plant census data is currently not known to be a factor for temporary or permanent removal of from 1991 indicate that the eastern the remaining six species, but wetlands, riparian vegetation, and subpopulation in Kenwood Marsh unrestricted collecting for scientific or special status plants and their habitats declined by approximately 40 percent horticultural purposes or excessive (Environmental Science Associates and the western subpopulation declined visits by individuals interested in seeing (ESA) 1993). From 1,200 to 4,900 cubic by approximately 30 percent compared rare plants could result from increased m (1 to 4 ac-ft) of wastewater per year to 1989 and 1990 data. These figures publicity as a result of this proposal. would be applied on approximately 14 suggest that the Kenwood Marsh to 27 ha (35 to 60 ac) of land. Although population may be experiencing a C. Disease or Predation the population of C. albida would not be delayed response to a drought. The All five populations of Alopecurus directly impacted, the application of effects of the drought may be aequalis var. sonomensis are grazed by this volume of wastewater could result exacerbated by effects of increased cattle (CNDDB 1993), but only two in the alteration of the remaining habitat surface water diversion and result in a populations in Sonoma County, within the historical range of C. albida further decline in the population (John containing a total of 50 plants, are through modification of surface Turner, CDFG, in litt. 1993). currently threatened by cattle grazing drainage patterns (ESA 1993). The Trifolium amoenum has been (CNDDB 1993). One population on the historical ranges of Lilium pardalinum extirpated from all of its 24 historical Point Reyes National Seashore was ssp. pitkinense and Alopecurus aequalis occurrences in 7 counties. Loss of this fenced in 1987 to stop cattle from var. sonomensis also occur within the habitat resulted primarily from overgrazing (V. Norris, in litt. 1993). The project boundaries. urbanization and land conversion to species presently consists of only 200 The type locality of Clarkia imbricata agriculture (Zoe Chandik, CNPS, in litt. known plants. along the roadside at Pitkin Ranch was 1993). The most recently discovered Carex albida is currently not grazed, extirpated prior to 1974, as a probable occurrence, found in 1993 in Sonoma although cattle graze other portions of result of changes in land use or roadside County, consisted of one plant located the parcel on which the species is Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39321 located. A change in management of the only requires that the landowner notify Additionally and equally important, the site to allow grazing near C. albida may the agency ‘‘at least 10 days in advance upland watersheds that contribute adversely affect the species (B. Guggolz, of changing the land use to allow significantly to the hydrology of in litt. 1993). The associated trampling salvage of such a plant’’ (Native Plant marshes are not provided any direct and disturbance of the wet soils would Protection Act, Division 2, Chapter 10, protection under section 404. also be detrimental to the species (J. section 1913). Disturbance to or loss of seep or marsh Mastrogiuseppe, Washington State The California Environmental Quality habitat and alteration of hydrology have Univ., pers. comm. 1993). Act (CEQA) requires a full disclosure of damaged populations and habitat as Sidalcea oregana ssp. valida is the potential environmental impacts of discussed previously under Factor A. adversely affected at both of its proposed projects. The public agency Reductions in water volume or locations by trampling and reduced seed with primary authority or jurisdiction inundation of the sites have the set resulting from cattle grazing (CNDDB over the project is designated as the lead potential to adversely affect the seven 1993). Lilium pardalinum ssp. agency, and is responsible for plant taxa listed above. Thus, as a pitkinense has been enclosed with 2 m conducting a review of the project and consequence of the small size of these (6 ft) high wire fencing at both locations consulting with the other agencies marsh, meadow, and hot spring areas to prevent grazing by cattle, horses, and concerned with the resources affected and lack of protection of associated deer. In spite of this effort, the plants by the project. Section 15065 of the uplands, these types of habitats receive continue to suffer herbivory resulting in CEQA Guidelines requires a finding of insufficient protection under section loss of flowers and seeds (L. Lozier, in significance if a project has the potential 404 of the Clean Water Act. litt. 1990). to ‘‘reduce the number or restrict the The Sonoma County Department of Trifolium amoenum may have range of a rare or endangered plant or Planning has designated Pitkin, disappeared from some of its former animal.’’ Species that are eligible for Cunningham, and Kenwood Marshes as locations due to grazing (Connors 1994). State listing as rare, threatened, or ‘‘critical habitat’’ (Sonoma County This species is a large clover that endangered, but are not so listed, are 1989). The streams within these blooms when many grassland plants given the same protection as those marshes are designated as ‘‘riparian have already turned brown, likely species that are officially listed with the corridors.’’ It is not likely that these making it attractive to grazing State or Federal governments. Once designations will adequately protect the herbivores. Most recent sightings of the significant effects are identified, the species involved. County policies for plant were located outside of fences lead agency has the option to require ‘‘critical habitat’’ designation include 15 along roadsides, suggesting that the mitigation for effects through changes in m (50 ft) setbacks of construction from species survived for a period where it the project or to decide that overriding wetland boundaries and preparation of was protected from grazing (Connors considerations make mitigation biotic resource assessments for 1994). Although no naturally occurring infeasible. In the latter case, projects development of mitigation measures, if populations of this species are currently may be approved that cause significant the planning director determines that a known, any populations that are environmental damage, such as ‘‘critical habitat’’ area will be impacted subsequently discovered on pasture destruction of endangered species. (Sonoma County 1989). A setback may land may be subject to the same grazing Protection of listed species through be waived, however, if the setback is pressure as historical populations. CEQA is, therefore, dependent upon the determined to make the parcel D. The Inadequacy of Existing discretion of the agency involved. unsuitable for construction. The single Hot spring areas and perennial Regulatory Mechanisms population of Carex albida and the freshwater emergent marshes are larger population of Lilium pardalinum The California Fish and Game generally small and scattered, and ssp. pitkinense occur within 15 m (50 ft) Commission has listed Carex albida, treated as isolated wetlands or waters of of streams in Sonoma County (CNDDB Clarkia imbricata, Lilium pardalinum the United States for regulatory 1993). The Sonoma County policy for ssp. pitkinense, Poa napensis, and purposes by the U.S. Army Corps of ‘‘riparian corridors’’ allows the removal Sidalcea oregana ssp. valida as Engineers (Corps) under section 404 of of riparian vegetation as part of a pest endangered species under the California the Clean Water Act. However, this law management program administered by Endangered Species Act (Division 3, by itself does not protect Alopecurus the County Agricultural Commissioner, Chapter 1.5 section 2050 et seq. of the aequalis var. sonomensis, Carex albida, as well as construction of roads and California Fish and Game Code and Lilium pardalinum ssp. pitkinense, Poa summer dams (Sonoma County 1989). Title 14 California Code of Regulations napensis, Plagiobothrys strictus, In addition, agricultural projects that 670.2). The California Fish and Game Sidalcea oregana ssp. valida, and may involve removal of native Commission has also listed Astragalus Trifolium amoenum. Nationwide Permit vegetation, including the proposed clarianus and Plagiobothrys strictus as No. 26 (33 CFR part 330 Appendix B species or alteration of their habitats, are threatened species. Listing by the State (26)) was established by the Corps to considered in Sonoma County to be of California requires individuals to facilitate issuance of permits for ‘‘ministerial’’ (K. Ellison, Sonoma obtain a memorandum of understanding discharge of fill into wetlands up to 4 County Department of Planning, pers. with CDFG to possess or ‘‘take’’ a listed ha (10 ac). For project proposals falling comm. 1993). Ministerial projects are species. Although the ‘‘take’’ of State- under Nationwide Permit 26, the Corps those projects that the public agency listed plants is prohibited (California has been reluctant to withhold must approve after the applicant shows Native Plant Protection Act, Division 2, authorization unless a listed threatened compliance with certain legal Chapter 10, section 1908 and California or endangered species is known to be requirements. They may be approved or Endangered Species Act, Division 3, present, regardless of the significance of carried out without undertaking CEQA Chapter 1.5, section 2080), State law other wetland resources. Section 404 review. exempts the taking of such plants via regulations require an applicant to Only a few measures have been taken habitat modification or land use changes obtain an individual permit to fill to protect some of the species in this by the owner. After CDFG notifies a isolated wetlands or waters greater than proposed rule. In 1989, the landowners landowner that a State-listed plant 4 ha (10 ac). In either case, candidate of the two confirmed populations of grows on his or her property, State law species receive no special consideration. Lilium pardalinum ssp. pitkinense 39322 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules entered into voluntary protection authorized’’ (Clark and Fellers 1987). threatened by competition from French agreements with TNC (CDFG 1993b). Fowler and Fellers (1985) state that broom (Genista monospessulana), a Since that time, TNC and the California grazing has been a serious threat to nonnative aggressive shrub (CNDDB Conservation Corps have jointly built Alopecurus aequalis var. sonomensis 1993). and maintained cattle exclosures in an occurrences located on the Seashore. The potential for loss of the Kenwood attempt to protect the plants at both Marsh population of Sidalcea oregana E. Other Natural or Manmade Factors sites. Some plants, however, continue to ssp. valida from stochastic events, Affecting Their Continued Existence suffer herbivory from livestock and because of the small population size, is wildlife, resulting in loss of flowers and Alopecurus aequalis var. sonomensis exacerbated by drought and water seeds (L. Lozier, in litt. 1990). A suffers from competition from diversions. In addition, this population Memorandum of Understanding is aggressive emergent wetland species, is being encroached upon by aggressive currently in effect between CDFG and including rushes (Juncus spp.) and weeds, including yellow star-thistle and the Berry Botanic Garden, Portland, sedges (Cyperus spp.) at one location. blackberry (Rubus spp.) (A. Howald, Oregon, for research on germination and These wetland plants have nearly pers. comm. 1993). One of the Kenwood recovery of this species (CDFG 1993b). extirpated A. aequalis var. sonomensis Marsh subpopulations was driven over Additionally, TNC obtained a voluntary from that site (V. Norris, in litt. 1993; by Sonoma County personnel during agreement in 1990 with private CNDDB 1993). Additionally, A. aequalis maintenance of the Sonoma Aqueduct, landowners to protect one population of var. sonomensis is not readily which passes through Kenwood Marsh. Astragalus clarianus. CDFG is propagated. Two attempts to The maintenance activity occurred late proposing to purchase approximately 37 reintroduce the species from seed to in the season when the soil was ha (90 ac) of the Kenwood Marsh as an suitable habitat within its range have relatively dry, resulting in minimal ecological preserve (A. Howald, pers. failed. Naturally occurring floods also damage to the plants. If maintenance comm. 1993). The date for acquisition of may be an ongoing threat. One activities occur during a time when the the preserve, however, is dependent on reintroduction failed due to a flash flood soil is saturated, they pose a threat to cooperation with the current in 1993 (V. Norris, pers. comm. 1993). the plants (A. Howald, pers. comm. landowners. The owner of one parcel, The population of Astragalus 1993). which contains approximately one half clarianus located on the north shore of Because it is unlikely that Lilium of the Kenwood population, has Lake Hennessey has an infestation of an pardalinum ssp. pitkinense is self- declined to sell her property to the State aggressive and dominating nonnative pollinating, single plants or widely (N. Wilcox, pers. comm. 1994). Purchase weed, yellow star-thistle (Centaurea separated plants in sparse populations of the land as a preserve would prevent solstitialis). This nonnative weed may not set viable seed (Mark Skinner, grazing on the site and would allow infestation was a direct result of ground CNPS, pers. comm. 1993). The two direct management of the plant disturbance associated with the removal remaining plants at Pitkin Marsh are population with possible opportunities of dredge spoils that were placed on top monitored closely by CNPS volunteers to expand the population (A. Howald, of this population as discussed under and have not been observed to have set pers. comm. 1993). The preserve would Factor A (A. Howald, pers. comm. seed for several years (M. Skinner, pers. be comprised of only a small portion of 1993). Competition from this nonnative comm. 1993). Much of Pitkin Marsh has the watershed, however, limiting the annual weed is also considered a threat been invaded by blackberry vines that protection that the preserve could afford to the population of A. clarianus at the compete with L. pardalinum ssp. to the hydrology of the marsh (N. Bothe Napa Valley State Park (J. Ruygt, pitkinense for space, light, and nutrients Wilcox, pers. comm. 1994). TNC also in litt. 1993). A proposed application to (CDFG 1993b). has entered into a verbal conservation build two small agricultural water Grass mowing, vehicle traffic, and agreement with a landowner for the storage reservoirs along a creek in Napa parking have impacted and continue to protection of one of the two populations County would avoid direct impacts to threaten one population of Poa napensis of Clarkia imbricata. However, this another population of A. clarianus, but at the Calistoga Airport site (CNPS 1990; larger population of C. imbricata was ground disturbance would most likely Robert Soreng, Cornell Univ., in litt. mowed before seed set in 1989 and introduce this same nonnative 1993). Grass mowing is done at regular 1991, reducing the seed production and aggressive weed (A. Howald, pers. intervals through the spring and number of plants in the years following comm. 1993). Establishment of yellow summer growing season to reduce fire mowing (B. Guggolz, in litt. 1993). star-thistle from this proposed activity is and aircraft safety hazards. The airport Seed from cultivated Trifolium considered a threat to this population. is used by a spray plane service, amoenum plants is currently being Plant succession may be excluding or recreational gliders, and associated tow collected for future reintroduction reducing the population of Astragalus planes. The service vehicles for the efforts (P. Conners, pers. comm. 1994). clarianus at one site (J. Ruygt, in litt. planes and private vehicle traffic of the In addition, half of the seed that was 1993) where A. clarianus grows customers impact this population of P. recovered from the single plant in 1993 sparingly in the interspaces of the napensis, especially during the spring was deposited for long-term storage at developing manzanita plant community. and summer when airport use increases. the U.S. Department of Agriculture As new manzanita seedlings emerge and The extirpation of all historical National Seed Storage Laboratory in grow and the existing plants grow populations of Trifolium amoenum may Fort Collins, Colorado (Conners 1994). larger, less and less interspace between have partially been a result of Although Point Reyes National plants is available for A. clarianus. Fire competition with weedy, nonnative Seashore (Seashore) is part of the suppression has reduced fire plant species. A recent germination National Park system, 17 cattle and occurrences in the manzanita study of other Trifolium species from dairy ranches are contained within the community. Periodic fire is needed to historical T. amoenum habitat in Seashore boundaries. Grazing and reduce manzanita cover and create Sonoma County suggested that some ranching, which have occurred on the interspaces for this plant. This species, annual Trifolium species germinate in peninsula for more than a century, have therefore, is vulnerable to habitat loss late November, well after many been determined to be ‘‘consistent with from advancing plant succession. introduced species, including redstem the purpose for which the Seashore was Another population of A. clarianus is storkbill (Erodium cicutarium), ripgut Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39323 brome (Bromus diandrus), and these species in determining to propose species are threatened by potential California burclover (Medicago this rule. Cattle grazing or competition alteration of hot springs hydrology, polymorpha) (Connors 1994). By with aggressive plant species threatens stochastic events, and inadequate germinating and growing earlier, it is 3 of the 5 remaining populations of regulatory mechanisms. The two likely that nonnative species have Alopecurus aequalis var. sonomensis, populations of Sidalcea oregana ssp. reduced the numbers of T. amoenum totalling approximately 200 plants. valida are threatened by trampling and plants by occupying available space Efforts to reintroduce this species to reduced seed set resulting from cattle (Connors 1994). sites within its range have failed. grazing, aqueduct maintenance, Small numbers of populations and Alopecurus aequalis var. sonomensis is competition from nonnative plant small population size threaten most of susceptible to extinction due to small species, potential loss of normal the plants proposed herein. There are 5 numbers of populations and individuals hydrology from urbanization, populations of Alopecurus aequalis var. and is threatened by inadequate inadequate regulatory mechanisms, and sonomensis with a total of 200 plants. regulatory mechanisms. If combined, all stochastic events and reduced genetic There are 2 populations of Lilium four populations of Astragalus clarianus fitness because of the small number of pardalinum ssp. pitkinense with a total could fit into a 0.5 ha (1 ac) area and individuals and populations. of 200 plants. There are 2 populations are threatened variously by a potential Trifolium amoenum has been of Sidalcea oregana ssp. valida with water storage project, a potential extirpated from all 24 historical fewer than 100 plants. These three subdivision, competition from occurrences in 7 counties; the species species may be subject to increased nonnative plant species, recreational currently exists as 18 plants in cultivation. This species is threatened genetic drift and inbreeding as a activities, airport maintenance, consequence of their small population by stochastic events due to the small inadequate regulatory mechanisms, sizes (Menges 1991, Ellstrand and Elam number of plants, competition with stochastic events, and elimination 1993). The increased homozygosity aggressive plant species, loss of habitat through plant community succession. results in a loss of genetic fitness from urbanization, livestock grazing, The single Carex albida population, (Ellstrand and Elam 1993). The and inadequate regulatory mechanisms. totaling approximately 800 to 1,000 reduction in genetic fitness affords less These nine species are imminently plants, is located 46 m (150 ft) from a chance of any species to successfully threatened by extinction throughout all State highway and is threatened by adapt to any environmental changes. or a significant portion of their range by potential changes in the site’s hydrology The very small numbers make them the factors summarized above and extremely vulnerable to extirpation from resulting from wetland drainage or fill, therefore meet the definition of stochastic events. competition from aggressive plant endangered in the Act. Based on this In addition to the 3 species listed species, changes in land management by evaluation, the preferred action is to list above, there are only 4 populations of the owner, highway construction or Alopecurus aequalis var. sonomensis, Astragalus clarianus with fewer than maintenance, potential disturbance from Astragalus clarianus, Carex albida, 2,000 plants; 1 population of Carex a proposed wastewater treatment Clarkia imbricata, Lilium pardalinum albida with 800 to 1,000 plants; 2 project, inadequate regulatory ssp. pitkinense, Plagiobothrys strictus, populations of Clarkia imbricata with mechanisms, and stochastic events. The Poa napensis, Sidalcea oregana ssp. fewer than 6,000 plants; 3 populations two remaining populations of Clarkia valida, and Trifolium amoenum as of Plagiobothrys strictus with fewer than imbricata are threatened by changing endangered. 10,000 plants; and 3 populations of Poa land use, unauthorized collection, Critical Habitat napensis with fewer than 1,000 plants. inadequate regulatory mechanisms, and Fewer than 18 Trifolium amoenum stochastic events. The 2 remaining Critical habitat is defined in section 3 plants exist in cultivation. The populations of Lilium pardalinum ssp. of the Act as: (i) the specific areas combination of a few small populations, pitkinense, totalling approximately 200 within the geographical area occupied very narrow range, and restricted habitat plants, suffer from uncontrolled by a species, at the time it is listed in makes these nine species susceptible to collection of plants, seeds, and bulbs for accordance with the Act, on which are destruction of all or a significant portion horticultural use, and by grazing. One found those physical or biological of any population from random natural population is potentially threatened by features (I) essential to the conservation events, such as flood, drought, disease, a proposed wastewater treatment of the species and (II) that may require or other natural occurrences (Shaffer project; the other population is special management consideration or 1981, Primack 1993). Such events are potentially threatened by a proposed protection and; (ii) specific areas not usually a concern until the number subdivision. Lilium pardalinum ssp. outside the geographical area occupied of individuals or geographic distribution pitkinense also is threatened by nature by a species at the time it is listed, upon become as limited as is the case with the of its small populations, stochastic a determination that such areas are species discussed herein. Once a plant events, and inadequate regulatory essential for the conservation of the population is reduced due to habitat mechanisms. If combined, the species. ‘‘Conservation’’ means the use destruction and fragmentation, the remaining populations of Plagiobothrys of all methods and procedures needed remnant population has a higher strictus and Poa napensis would occupy to bring the species to the point at probability of extinction from random an area of less than 0.5 ha (1 ac) each which listing under the Act is no longer events. Thus, all nine taxa are and are surrounded by hot springs necessary. threatened by potential loss of genetic resorts or housing. Plagiobothrys strictus Section 4(a)(3) of the Act, as fitness associated with their small and Poa napensis co-occur at two sites amended, and implementing regulations populations or damage and destruction and both species are threatened by (50 CFR 424.12) require that, to the by random natural events across the airport activities, including traffic and maximum extent prudent and entire range of each taxon. vehicle parking on the plants, grass determinable, the Secretary designate The Service has carefully assessed the mowing, and potential development of critical habitat at the time the species is best scientific and commercial remnant habitat, including the determined to be endangered or information available regarding the past, construction of a hospital at this site. threatened. The Service finds that present, and future threats faced by Additionally, all populations of the two designation of critical habitat is not 39324 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules prudent for these nine plant taxa at this locations in or near cities, any activity destroy or adversely modify its critical time. Service regulations (50 CFR that would adversely modify habitat or habitat. If a Federal action may affect a 424.12(a)(1)) state that designation of destroy plants would likely jeopardize listed species or its critical habitat, the critical habitat is not prudent when one the continued existence of each of these responsible Federal agency must enter or both of the following situations species. Therefore, the Service finds that into formal consultation with the exist—(1) The species is threatened by designation of critical habitat is not Service. taking or other human activity, and prudent for Astragalus clarianus, All nine plant species may be affected identification of critical habitat can be Plagiobothrys strictus, and Poa napensis by Federal mortgage programs, expected to increase the degree of threat because it would not provide additional including those managed by the to the species, or (2) such designation of benefit beyond that provided by listing Veterans Administration and the U.S. critical habitat would not be beneficial for the conservation of the species. Department of Housing and Urban to the species. Additionally, publicity that might Development (Federal Home As required for proposals to designate result in public trespass on privately Administration loans). Since six of the critical habitat, the publication of maps owned sites by individuals seeking the nine taxa proposed herein exist in or and the precise locations of involved plants could reduce the landowners’ near marshes, meadows, perennial plant populations could contribute to willingness to cooperate with public or streams, or thermal hot springs, the the further decline of the nine taxa private agencies in their protection Corps may become involved in proposed herein and increase efforts for the involved taxa (B. Guggolz, regulating fill of these wetland areas enforcement problems, particularly in pers. comm. 1993). Designation would through jurisdiction of section 404 of the case of Lilium pardalinum ssp. provide no additional benefit to any of the Clean Water Act (33 U.S.C. 1344 et pitkinense. This taxon, which is these nine species beyond the benefit seq.). The plants may also be affected by threatened primarily by uncontrolled received by virtue of their designation road and highway construction by the collection for horticultural use, is as endangered species. Protection of Federal Highway Administration. The especially at risk from additional these nine species will be addressed National Park Service may become publicity. Two of the three privately through the recovery process and involved through section 7 consultation owned populations of Alopecurus through the section 7 consultation because of potential grazing impacts to aequalis var. sonomensis are found in process. Alopecurus aequalis var. sonomensis at close proximity to L. pardalinum ssp. Point Reyes National Seashore Available Conservation Measures pitkinense. Although A. aequalis var. (Seashore). The Seashore has twice sonomensis is not collected for Conservation measures provided to attempted to reintroduce A. aequalis horticultural use, any increase in species listed as endangered or var. sonomensis using seed collected publicity of A. aequalis var. sonomensis threatened under the Endangered within the Seashore. In 1987, the could lead to collection or destruction Species Act include recognition, Seashore erected a cattle exclosure fence of that species, as well as increased recovery actions, requirements for to protect this species from grazing (V. collection of L. pardalinum ssp. Federal protection, and prohibitions Norris, in litt. 1993). pitkinense. One of the two populations against certain practices. Recognition Listing Alopecurus aequalis var. of Clarkia imbricata in a preserve through listing results in public sonomensis, Astragalus clarianus, Carex owned by the California Native Plant awareness and conservation actions by albida, Clarkia imbricata, Lilium Society has experienced unauthorized Federal, State, and local agencies, pardalinum ssp. pitkinense, collection, despite a deliberate decision private organizations, and individuals. Plagiobothrys strictus, Poa napensis, not to publicize the preserve’s exact The Act provides for possible land Sidalcea oregana ssp. valida, and location. Thus, the Service finds that acquisition and cooperation with the Trifolium amoenum would provide for designation of critical habitat for State and requires that recovery plans be development of a recovery plan (or Alopecurus aequalis var. sonomensis, developed for all listed species. The plans) for them. Such plan(s) would Clarkia imbricata, and Lilium protection required of Federal agencies bring together both State and Federal pardalinum ssp. pitkinense is not and the prohibitions against certain efforts for conservation of the plants. prudent because of potential vandalism activities involving listed plants are The plan(s) would establish a and uncontrolled collection for discussed, in part, below. framework for agencies to coordinate horticultural use. No Trifolium Section 7(a) of the Act, as amended, activities and cooperate with each other amoenum plants are currently known to requires Federal agencies to evaluate in conservation efforts. The plan(s) exist in the wild, but designation of their actions with respect to any species would set recovery priorities and critical habitat could encourage that is proposed or listed as endangered estimate costs of various tasks necessary vandalism and preclude recovery efforts or threatened and with respect to its to accomplish them. It also would for the species. critical habitat, if any is being describe site-specific management The single Carex albida population designated. Regulations implementing actions necessary to achieve and a portion of one of the two this interagency cooperation provision conservation and survival of the nine populations of Sidalcea oregana ssp. of the Act are codified at 50 CFR part plant species. Additionally, pursuant to valida are adjacent to State highways. 402. Section 7(a)(4) of the Act requires section 6 of the Act, the Service would Any specific locality information could Federal agencies to confer with the be more likely to grant funds to affected subject these species to activities that Service on any action that is likely to states for management actions would jeopardize their survival. Thus, jeopardize the continued existence of a promoting the protection and recovery the Service finds that designation of species proposed for listing or result in of these species. critical habitat is not prudent for Carex destruction or adverse modification of The Act and its implementing albida and Sidalcea oregana ssp. valida proposed critical habitat. If a species is regulations set forth a series of general because of potential vandalism. listed subsequently, section 7(a)(2) prohibitions and exceptions that apply Because Astragalus clarianus, requires Federal agencies to ensure that to all endangered plants. All Plagiobothrys strictus, and Poa napensis activities they authorize, fund, or carry prohibitions of section 9(a)(2) of the Act, have very specific known habitat out are not likely to jeopardize the implemented by 50 CFR 17.61, apply. requirements and occur at very few continued existence of the species or These prohibitions, in part, make it Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39325 illegal for any person subject to the Field Office (see ADDRESSES section). National Environmental Policy Act jurisdiction of the United States to Requests for copies of the regulations import or export, transport in interstate regarding listed plants and inquiries The Fish and Wildlife Service has or foreign commerce in the course of a about prohibitions and permits may be determined that Environmental commercial activity, sell or offer for sale addressed to the U.S. Fish and Wildlife Assessments and Environmental Impact in interstate or foreign commerce, or Service, Ecological Services, Statements, as defined under the remove and reduce the species to Endangered Species Permits, 911 NE authority of the National Environmental possession from areas under Federal 11th Ave., Portland, Oregon 97232–4181 Policy Act of 1969, need not be jurisdiction. In addition, for plants (phone 503/231–2063, facsimile 503/ prepared in connection with regulations listed as endangered, the Act prohibits 231–6243). adopted pursuant to section 4(a) of the the malicious damage or destruction of Endangered Species Act of 1973, as any such species on areas under Federal Public Comments Solicited amended. A notice outlining the jurisdiction and the removal, cutting, The Service intends that any final Service’s reasons for this determination digging up, or damaging or destroying of action resulting from this proposal will was published in the Federal Register such plant species in knowing violation be as accurate and as effective as on October 25, 1983 (48 FR 49244). of any State law or regulation, including possible. Therefore, comments or References Cited State criminal trespass law. Certain suggestions from the public, other exceptions to the prohibitions apply to concerned governmental agencies, the A complete list of all references cited agents of the Service and State scientific community, industry, or any herein is available upon request from conservation agencies. other interested party concerning this the Field Supervisor, Sacramento Field The Act and 50 CFR 17.62 and 17.63 proposed rule are hereby solicited. Office (see ADDRESSES section). also provide for the issuance of permits Comments particularly are sought to carry out otherwise prohibited concerning: Authors activities involving endangered plant (1) Biological, commercial, trade, or species under certain circumstances. other relevant data concerning any The primary authors of this proposed Such permits are available for scientific threat (or lack thereof) to Alopecurus rule are Elizabeth Warne and Kenneth purposes and to enhance the aequalis var. sonomensis, Astragalus Fuller, Sacramento Field Office (see propagation or survival of the species. clarianus, Carex albida, Clarkia ADDRESSES section). The Service anticipates that few permits imbricata, Lilium pardalinum ssp. List of Subjects in 50 CFR Part 17 would ever be sought or issued for eight pitkinense, Plagiobothrys strictus, Poa of the species because they are not napensis, Sidalcea oregana ssp. valida, Endangered and threatened species, common in cultivation or in the wild. and Trifolium amoenum; Exports, Imports, Reporting and Lilium pardalinum ssp. pitkinense, (2) The location of any additional recordkeeping requirements, and however, is collected for horticultural populations of these species and the Transportation. use. reasons why any habitat should or Proposed Regulation Promulgation It is the policy of the Service, should not be determined to be critical published in the Federal Register on habitat pursuant to section 4 of the Act; Accordingly, the Service hereby July 1, 1994 (59 FR 34272), to identify (3) Additional information concerning proposes to amend part 17, subchapter to the maximum extent practicable at the range, distribution, and population B of chapter I, title 50 of the Code of the time a species is listed those size of these species; and Federal Regulations, as set forth below: activities that would or would not (4) Current or planned activities in the constitute a violation of section 9 of the subject area and their possible impacts PART 17Ð[AMENDED] Act. The intent of this policy is to on these species. increase public awareness of the effect Final promulgation of regulations on 1. The authority citation for part 17 of the listing of the nine plant species these species will take into continues to read as follows: on proposed and ongoing activities consideration the comments and any Authority: 16 U.S.C. 1361–1407; 16 U.S.C. within the species’ range. The Service additional information received by the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– believes that activities such as Service, and such communications may 625, 100 Stat. 3500, unless otherwise noted. landscape maintenance, clearing lead to a final regulation that differs vegetation for firebreaks, and livestock from this proposal. 2. Section 17.12(h) is amended by grazing on privately owned lands, not The Endangered Species Act provides adding the following, in alphabetical under Federal funding or authorization, for one or more public hearings on this order under FLOWERING PLANTS, to would not be considered a violation of proposal, if requested. Requests must be the List of Endangered and Threatened section 9 of the Act. Questions regarding received by September 25, 1995. Such Plants to read as follows: whether specific activities would requests must be made in writing and § 17.12 Endangered and threatened plants. constitute a violation of section 9 addressed to the Field Supervisor, should be directed to the Field Sacramento Field Office (see ADDRESSES * * * * * Supervisor of the Service’s Sacramento section). (h) * * * Species Historic range Family name Status When listed Critical Special Scientific name Common name habitat rules FLOWERING PLANTS ******* Alopecurus Sonoma alopecurus U.S.A. (CA) ...... Poaceae ...... E ...... NA NA aequalis var. sonomensis. 39326 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Species Historic range Family name Status When listed Critical Special Scientific name Common name habitat rules ******* Astragalus Clara Hunt's U.S.A. (CA) ...... Fabaceae ...... E ...... NA NA clarianus. milkvetch. ******* Carex albida ..... White sedge ...... U.S.A. (CA) ...... Cyperaceae ...... E ...... NA NA ******* Clarkia imbricata Vine Hill clarkia ...... U.S.A. (CA) ...... Onagraceae ...... E ...... NA NA ******* Lilium Pitkin Marsh lily ...... U.S.A. (CA) ...... Liliaceae ...... E ...... NA NA pardalinum ssp. pitkinense. ******* Plagiobothrys Calistoga allocarya .. U.S.A. (CA) ...... Boraginaceae ...... E ...... NA NA strictus. ******* Poa napensis ... Napa bluegrass ...... U.S.A. (CA) ...... Poaceae ...... E ...... NA NA ******* Sidalcea Kenwood Marsh U.S.A. (CA) ...... Malvaceae ...... E ...... NA NA oregana ssp. checkermallow. valida. ******* Trifolium Showy Indian clover U.S.A. (CA) ...... Fabaceae ...... E ...... NA NA amoenum. ******* Dated: July 5, 1995. threatened status for Cupressus California, 93003. Comments and Mollie H. Beattie, goveniana ssp. goveniana (Gowen materials received will be available for Director, Fish and Wildlife Service. cypress). The six taxa are found public inspection, by appointment, [FR Doc. 95–18812 Filed 8–1–95; 8:45 am] primarily along the coast of northern during normal business hours at the BILLING CODE 4310±55±P Monterey County, California. The five above address. plant taxa and the lizard are threatened FOR FURTHER INFORMATION CONTACT: Carl by one or more of the following: Benz, Assistant Field Supervisor, 50 CFR Part 17 alteration, destruction, and Ventura Field Office (see ADDRESSES [RIN 1018±AD09] fragmentation of habitat resulting from section) (telephone number 805/644– Endangered and Threatened Wildlife urban and golf course development; 1766; facsimile 805/644–3958). and Plants; Proposed Rule to recreational activities; highway SUPPLEMENTARY INFORMATION: Determine Five Plants and a Lizard widening; military activities; Background from Monterey County, California, as competition with non-native species; The Monterey Peninsula on the Endangered or Threatened and alteration of natural fire cycles. All central California coast has been noted AGENCY: Fish and Wildlife Service, taxa are also threatened with stochastic for a high degree of species endemism Interior. extinction due to the small numbers of (Axelrod 1982, Howitt 1972, Raven and ACTION: Proposed rule. populations or individuals. This Axelrod 1978). Species with more proposed rule, if made final, would northern affinities reach their southern SUMMARY: The U.S. Fish and Wildlife extend the Act’s protection to these limits on the Peninsula; species with Service (Service) proposes endangered taxa. more southern affinities reach their status pursuant to the Endangered DATES: Comments from all interested northern limits here as well (Howitt and Species Act of 1973, as amended (Act), parties must be received by October 9, Howell 1964). The Monterey Peninsula for four plants and a reptile: Astragalus 1995. Public hearing requests must be is influenced by a maritime climate that tener var. titi (coastal dunes milk-vetch), received by September 25, 1995. is even more pronounced due to the Piperia yadonii (Yadon’s piperia), ADDRESSES: Comments and materials upwelling of cool water from the Potentilla hickmanii (Hickmann’s concerning this proposal should be sent Monterey submarine canyon. Rainfall potentilla), Trifolium trichocalyx to the Field Supervisor, Ventura Field amounts to only 38 to 51 centimeters (Monterey clover) and the black legless Office, U.S. Fish and Wildlife Service, (cm) (15 to 20 inches) per year, but lizard (Anniella pulchra nigra); and 2493 Portola Road, Suite B, Ventura, summer fog-drip is a primary source of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39327 moisture for taxa that would otherwise found on Huckleberry Hill centrally generally been regarded as the same as not be able to persist with such low located on Monterey Peninsula. Here, Astragalus tener, * * * the two plants rainfall. Some taxa, such as the coastal the less aggressive C. goveniana ssp. are not the same and Astragalus titi closed-cone pines and cypresses may goveniana and P. muricata are spared seems worthy of varietal, if not specific represent relicts of species that once had competition from P. radiata. Some of recognition.’’ Rupert Barneby published a more continuous, widespread the chaparral species associated with the combination A. tener var. titi in distribution in the more mesic climate these forest stands include 1950, noting the difference in flower of the late Pleistocene period, then Arctostaphylos pumila (sandmat size, habitat, and geographic range retreated to small pockets of cooler and manzanita), Arctostaphylos hookeri ssp. between it and A. tener var. tener wetter conditions along the coast ranges hookeri (Hooker’s manzanita), (Barneby 1950). during the hotter and drier xerothermic Ceanothus dentatus (toothleaf lilac), Astragalus tener var. titi is a period between 8,000 and 4,000 years and Ericameria fasciculata (Eastwood’s diminutive annual herb of the pea ago (Axelrod 1982). ericameria) (Holland 1986, Vogl et al. family (Fabaceae). The slender, slightly In 1602, the Spanish government 1988). pubescent stems reach 1 to 1.5 commissioned Sebastian Viscaino to Much of what the Forest Service decimeters (dm) (4 to 6 inches) in map the coastline; he travelled as far mapped in 1941 as grassland or height, with leaves that are 7 to 11 north as the Mendocino coast. In his ‘‘barren’’ (which most likely included pinnately compound and 2 to 7 cm (0.8 journal, he made note of the ‘‘pine coastal dunes) on the peninsular to 2.7 inches) long with slightly bilobed covered headlands’’ and the ‘‘great pine coastline has been subsequently tips. The tiny lavender to purple flowers trees, smooth and straight, suitable for converted to golf courses. Remnant are 5 to 6 millimeters (mm) (0.25 inches) the masts and yards of ships’’ that he dunes support a coastal dune scrub long and are arranged in subcapitate saw while anchored in Monterey Bay community dominated by Artemisia racemes of 2 to 12 flowers. The linear (F.B. Larkey in Howitt 1972). During the pycnocephala (beach sagewort), seed pods are straight to sickle-shaped early 1900s, Willis L. Jepson Baccharis pilularis (coyote bush), and and 6 to 14 mm (0.25 to 0.6 inches) long characterized the forests on the several bush lupines (Lupinus arboreus, (Bittman 1985). Monterey Peninsula as the ‘‘most L. chamissonis). The southernmost Two historical locations from Los important silva ever’’, and encouraged occurrences for Erysimum menziesii Angeles County (Hyde Park in Samuel F. B. Morse of the Del Monte (Menzies wallflower), Layia carnosa Inglewood and Santa Monica) and two Properties Company to explore the (beach layia), Lupinus tidestromii from San Diego County (Silver Strand possibilities of preserving the unique (Tidestrom’s lupine), and Gilia and Soledad) were annotated by forest communities (F. B. Larkin in tenuiflora ssp. arenaria (dune gilia), all Barneby as Astragalus tener var. titi Howitt 1972). Morse believed that federally endangered species, occur on (Barneby 1950). Numerous unsuccessful developing recreational facilities would these remnant dunes (Holland 1986, searches for the plant have been made allow income to be derived from the U.S. Fish and Wildlife Service 1992). It in these locations over the past decade property while maintaining the forest is uncertain what species characterized (Ferreira 1992a, Julie Vanderweir, intact. the grasslands mapped by the Forest botanical consultant, San Diego County, In 1941, maps were compiled by the Service. Aside from harboring small pers. comm., 1992). It is unlikely that U.S. Forest Service to show plant populations of several of the species suitable habitat remains, since the Los associations that were similar in ‘‘fire- that are contained within this proposed Angeles County locations have been hazard characteristics and in uses or rule, these patches of herbaceous heavily urbanized. The Silver Strand qualities of economic importance’’ (U.S. vegetation support a large number of area is owned by the Department of Forest Service 1941). The bulk of the non-native grasses and succulents, as Defense (Miramar Naval Weapons Monterey Peninsula was mapped as well as opportunistic native herbaceous Center), and a portion has been Monterey pine forest with a discrete species (Ferreira 1992a, Ferreira 1992b). subjected to amphibious vehicle stand of Bishop pine in the center of the As for the patches mapped by the Forest training exercises. Another portion of peninsula. The coastline was fringed Service as ‘‘sagebrush’’, these most Silver Strand has been leased by the with either ‘‘barren’’ stretches, likely matched what is currently called Navy to the California Department of grassland, or ‘‘sagebrush’’, and a stretch coastal sage scrub, a community Parks and Recreation for development of of ‘‘cypress species’’ extending east dominated by Artemisia californica a campground and recreational along the coast from what is known as (California sagebrush). For the most facilities. Cypress Point. By 1930, however, the part, these patches occurred within The only known extant population of construction of three golf courses likely what are now urbanized portions of the Astragalus tener var. titi occurs along resulted in the removal of a number of cities of Monterey and Pacific Grove and 17-Mile Drive on the western edge of the Monterey pines. the Pacific Grove Municipal Golf Monterey Peninsula on land owned by Three native Monterey pine (Pinus Course. the Pebble Beach Company. The milk- radiata) stands remain in California: on Astragalus tener var. titi (coastal vetch occurs on a relatively flat coastal the Monterey Peninsula; near Ano dunes milk-vetch) was first collected by terrace within 30 meters (m) (100 feet Nuevo Point in northern Santa Cruz Mrs. Joseph Clemens in 1904 along 17- (ft)) of the ocean beach and 8 m (25 ft) County; and near Cambria in San Luis Mile Drive on the Monterey Peninsula above sea level. The loamy fine sands Obispo County. The Monterey ‘‘near an old hut composed of abalone that comprise a series of shallow swales Peninsula stand is not only the most shells and coal-oil cans.’’ Alice on the terrace surface support standing extensive of the three, it is also unique Eastwood (1905) later named the plant water during wet winter and spring in its association with Pinus muricata Astragalus titi in honor of Dr. F. H. seasons. Individual plants are found on (Bishop pine), Cupressus goveniana ssp. Titus. Subsequently, John Thomas the bottoms or sides of the swales goveniana (Gowen cypress), and Howell (1938), while comparing a growing in association with other low Cupressus macrocarpa (Monterey specimen of A. tener that was collected growing grasses and herbs, including cypress). While P. radiata grows well on by David Douglas near Salinas, the non-native Carpobrotus edulis a wide variety of soils, it does not do Monterey County, remarked that (hottentot fig) and Plantago coronopus well on the acidic, poorly-drained soils although ‘‘Astragalus titi Eastwood has (cut-leaf plantain). In 1992, only 120 39328 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules individuals were counted from the restricted to the Monterey Peninsula The Del Monte Forest stand is on known population, which over the past and Point Lobos in Monterey County. lands owned by the Pebble Beach decade had fluctuated from 15 to 1,000 Cupressus goveniana ssp. goveniana Company and the Del Monte Forest individuals (Ferreira 1992a). generally reaches a height between 5 Foundation (DMFF). The purpose of the The population was bisected by and 7 m (17 to 23 ft) (Munz 1968), DMFF, originally established as the Del construction of 17-Mile Drive, which though Griffin noted one individual that Monte Foundation in 1961 by the also likely altered the local hydrology. was 10 m (33 ft) high at Huckleberry Pebble Beach Company, is to ‘‘acquire, Half of the remaining habitat occurs Hill (Griffin and Critchfield 1976). The accept, maintain, and manage lands in between the road and the ocean bluff’s sparsely branched tree forms a short, the Del Monte Forest which are edge, and the other half occurs between broad crown with a spread of 2 to 4 m dedicated to open space and greenbelt’’ the interior side of the road and a horse (7 to 13 ft). The bark is smooth brown (DMFF, in litt., 1992). A large portion of trail that runs parallel to a golfing green. to gray, but becomes rough and fibrous the Del Monte Forest stand is within a Astragalus tener var. titi is currently on old trees. The scale-like foliage is a 34-hectare (84-acre) area designated as a threatened with alteration of habitat light rich green, with leaves 1 to 2 mm botanical reserve (Samuel F.B. Morse from trampling associated with several long (0.04 to 0.08 inches). The female Botanical Reserve) in the 1960s and recreational activities, including hiking, cones are subglobose (nearly spherical), donated to DMFF in 1976. In the early picnicking, ocean viewing, wildlife 10 to 15 mm (0.4 to 0.6 inches) long, 1980s, development of the Poppy Hills photography, equestrian use, and and produce 90 to 110 seeds (Wolf and Golf Course removed 840 Gowen golfing. The species also faces threats Wagener 1948). The cones, which cypress trees and surrounded other from stochastic (i.e., random) extinction typically mature in 2 years, remain small patches by fairways. The by virtue of the small size of the closed for many years while attached to remaining portion of the stand is on remaining population. The plant may the cone. Seeds can be released upon lands designated as ‘‘open space’’, and also be threatened with competition mechanical removal from the tree, or a conservation easement for this area is from the non-native Carpobrotus edulis more typically upon death of the tree or currently being acquired by DMFF. and Plantago coronopus, though current supporting branch as by heat generated A second smaller stand of Cupressus management by the Pebble Beach by a wildfire. Cupressus goveniana ssp. goveniana ssp. goveniana Company includes hottentot fig removal goveniana is distinguished from its approximately 16 to 32 hectares (40 to from a portion of the habitat. close relative C. goveniana ssp. pigmaea 80 acres) in size occurs 10 km (6 miles) to the south near Gibson Creek on a 60- Cupressus goveniana ssp. goveniana (pygmy or Mendocino cypress) by its hectare (150-acre) parcel acquired by the (Gowen cypress) was first discovered by much taller stature, the lack of a long, California Department of Parks and Karl Hartweg ‘‘on the pine barrens of whip-like terminal shoot, and light to Recreation (DPR) (Point Lobos State Huckleberry Hill (Monterey Peninsula)’’ yellow-green rather than dark dull green Reserve) in 1962. The very western edge in 1846. The plant was described as foliage (Bartel 1993). of the stand is on privately owned Cupressus goveniana by British Only two natural stands of Cupressus ranchlands (Jones and Stokes horticulturalist George Gordon in 1849 goveniana ssp.goveniana are known to Associates, Inc. 1989). In this stand, C. who named it after fellow exist, though individuals can be found goveniana ssp. goveniana is associated horticulturalist James R. Gowen (Sargent locally in cultivation. Cupressus with Pinus radiata and chaparral 1896). Charles Sargent (1896) described goveniana ssp. goveniana is associated species Griffin and Critchfield 1976, the tree as being widely distributed with Pinus radiata (Monterey pine), Vogl et al. 1988). Due to the physical ‘‘from the plains of Mendocino County Pinus muricata (Bishop pine), and inaccessibility of the Point Lobos stand to the mountains of San Diego County’’ several taxa in the heath family and the Reserve’s mandate to protect as he included taxa now recognized as (Ericaceae) (e.g. Vaccinium, Gaultheria, sensitive plant taxa, the Point Lobos distinct in his definition of C. (Arctostaphylos) on poorly drained, stand exhibits fewer signs of human goveniana. John G. Lemmon published acidic, podsol soils (Griffin and disturbance than the Del Monte Forest the name C. goveniana var. pigmaea in Critchfield 1976). The largest stand, stand. 1895 to refer to the stands found on the referred to here as the Del Monte Forest Despite measures taken to protect the ‘‘White Plains’’ of Mendocino County, stand, is near Huckleberry Hill on the Cupressus goveniana ssp. goveniana also referred to as pygmy cypress or western side of the Monterey Peninsula. stand at the Del Monte Forest, such as Mendocino cypress. As a result of this This stand covers approximately 40 establishing the Morse Reserve, the segregation, the material from the hectares (100 acres), with individuals opportunities for maintaining a viable Monterey area would be treated as C. scattered within a kilometer (1⁄2 mile) of long-term stand may be compromised goveniana var. goveniana. However, the main stand. by the site’s close proximity to Bartel (1993), in keeping with the use of At least three fires have burned urbanization. This species is threatened subspecies in the treatment of portions of the Del Monte Forest stand by habitat alteration and destruction Cupressus, used C. goveniana ssp. in the last 100 years. A large fire burned due to the influence of continued urban goveniana for the revision of Jepson’s most of the stand in 1901 (Coleman development in Pebble Beach and to the Manual. The Service is using Bartel’s 1905, and Dunning 1906, in Vogl et al. disruption of natural fire cycles as a subspecific treatment for this taxon. 1988). The northern portion of the stand result of fire suppression activities. In Cupressus goveniana ssp. goveniana apparently burned in 1959 (California addition, the Del Monte Forest stand has (Gowen cypress) is a small coniferous Department of Fish and Game (CDFG) been invaded by aggressive non-native tree or shrub in the cypress 1992). The most recent fire burned species, including Cortaderia sellanoa (Cupressaceae) family. Most of the 10 through the central and eastern portions (pampasgrass) and Cytisus taxa in the genus Cupressus found in of the population in 1987. Wolf and monspessulanus (French broom). An California have relatively small ranges Wagener (1948) reported that patches of increase in such invasive alien plants (Bartel 1993). Of the three coastal crowded, poorly developed individuals, will undoubtedly alter the composition cypresses, native stands of C. referred to as ‘‘canes’’, were cut for of the plant community and may macrocarpa (Monterey cypress) and C. posts, making it difficult to determine adversely affect C. goveniana ssp. goveniana ssp. goveniana are both the original extent of the grove. goveniana. The cypress is also Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39329 threatened with stochastic (i.e., random) DMFF lands, and two are in city parks reclining stems 8 to 15 cm (3 to 6 extinction due to the small amount of in Pacific Grove and Monterey. Four inches) long support two to four habitat occupied by the species. populations are clustered generally branched cymes (flowering stems) each Piperia yadonii (Yadon’s piperia) was between Prunedale and Elkhorn Slough; of which is one- to two-flowered. The first collected by Leroy Abrams in 1925 three of these are on privately owned flowers consist of 5 ovate to obtuse in open pine forest near Pacific Grove. lands, including one population on land sepals 6 mm (0.23 inches) long; yellow At that time, it was identified as Piperia managed by The Nature Conservancy obcordate petals 6 mm (0.23 inches) unalascensi (Morgan and Ackerman (TNC) (Blohm Ranch), and one is on long and 5 mm (0.19 inches) wide; and 1990), a polymorphic, wide-ranging County property (Manzanita County 20 stamens (Abrams 1944, CNPS 1987). species found from Alaska to Colorado, Park). One small population is located Potentilla hickmanii is separated from southern California, and northwestern at the northernmost corner of Fort Ord two other potentillas that occur on the Mexico. In the most recent treatment of near Marina. Monterey Peninsula (P. egedii var. the genus Piperia, James D. Ackerman Recent surveys by Morgan indicate grandis and P. glandulosa) by a (1977) segregated out several long- that the largest population, consisting of combination of its small stature, leaflet spurred taxa from the P. unalascensis approximately 500 individuals, is size and shape, and color of the petals. complex, but attempted no analysis of scattered along a 2.1 km (1.3 mile) Only three historical locations for the the short-spurred forms. Subsequently, stretch of private road in Pebble Beach plant are known (CDFG 1992). A Morgan and Ackerman (1990) (Morgan, in litt., 1992). One population, collection was made by Ethel K. Crum segregated out two new taxa from the P. located in Long Valley between in 1932, apparently in the vicinity of unalascensis complex. One of these, P. Prunedale and Elkhorn Slough, Eastwood’s original collection. Ferreira yadonii, was named after Vernal Yadon, comprises approximately 150 (1992b) surveyed the area surrounding previous Director of the Museum of individuals; the remaining populations the Pacific Grove reservoir in 1992, but Natural History in Pacific Grove, range in size from a few individuals to found no Potentilla hickmanii plants or Monterey County. fewer than 100 individuals (Morgan, in suitable habitat for the species. A Piperia yadonii is a slender perennial litt., 1992). second location was observed by E.C. herb in the orchid family (Orchidaceae). Piperia yadonii was once more Suttliffe at Moss Beach near Half Moon During the first few years of growth, the abundant on the Monterey Peninsula. Bay, San Mateo County, in 1933. This plant is visible only by its one or two Many historic collections were made occurrence is presumed to be extirpated lanceolate to oblanceolate basal leaves from the Pacific Grove area, which has by urban development in the Half Moon which die back each winter. In mature since been urbanized. It is also likely Bay area. plants, the leaves are 10 to 15 cm (4 to that the plant was previously more Potentilla hickmanii is currently 6 inches) long and 2 to 3 cm (0.8 to 1.2 abundant in the Prunedale-Elkhorn known from only one location, on the inches) wide. After several years of Slough area; a lack of historical western Monterey Peninsula, in a vegetative growth, the plant sends up a collections from this area is probably a meadow opening within Monterey pine single stem to 80 cm (31 inches) tall reflection of the lower intensity of forest. Loamy fine sandy soils support a with flowers arranged in a dense botanical collecting compared to the meadow community of non-native narrow-cylindrical raceme. The flowers Monterey Peninsula area. Continued grasses and several introduced and consist of three petal-like sepals and alteration and destruction of habitat due native herbs. A total of 24 individuals three petals, which together appear as to urban and golf course development is of P. hickmanii were located during one flower containing six tepals. The currently the greatest threat to P. 1992 surveys, 9 of which are within a upper three tepals are basically green yadonii. Other threats include small exclosure constructed by the and the lower three white. The competition with non-native species, Pebble Beach Company to protect the lowermost tepal is specialized into a lip roadside mowing, and a proposed plants; the other 15 are located within that is narrowly triangular and is realignment of Highway 101 known as 30 m (100 ft) of the exclosure (Ferreira strongly decurved such that the tip the Prunedale bypass. The small 1992b). The Pebble Beach Company has nearly touches the spur of the flower numbers of individuals and populations maintained management responsibilities (Morgan and Ackerman 1990). Piperia also make P. yadonii vulnerable to for the meadow, though ownership of yadonii is sympatric with P. elegans, P. stochastic extinction. the land has been transferred to the Del elongata, P. michaelii, and P. Potentilla hickmanii (Hickmann’s Monte Forest Foundation. Potentilla transversa, but is distinguished from potentilla) was originally collected by hickmanii is currently threatened with them by the shorter spur length, the Alice E. Eastwood in 1900 ‘‘near the alteration of habitat resulting from particular pattern of green and white reservoir which supplies Pacific Grove, recreational activities. The meadow, floral markings, and the earlier [Monterey County] California, along the called Indian Village, is available for use flowering time (R. Morgan, botanical road to Cypress Point’’. The reference to by residents of Pacific Grove and has consultant, Soquel, California, pers. a reservoir could refer to Forest Lake in been developed as an outdoor comm., 1992). Pebble Beach but more likely refers to recreational park. The extremely small Piperia yadonii is found within the Pacific Grove reservoir (Ferreira numbers of individual plants and Monterey pine forest and maritime 1992b). Eastwood (1902) described the populations also make P. hickmanii chaparral communities in northern species 2 years later, naming it after J. vulnerable to stochastic extinction. coastal Monterey County from the B. Hickman who was her guide on that Trifolium trichocalyx (Monterey Monterey Peninsula northeast to the collecting trip. clover) is a member of the pea family Elkhorn Slough area. This plant occurs Potentilla hickmanii is a small (Fabaceae). The genus Trifolium is well- primarily on sandstone and sandy soils perennial herb in the rose family represented in North America, with that are often poorly drained, though (Rosaceae) that annually dies back to a approximately 50 species recognized in dry in summer when the plants are woody taproot. The leaves are pinnately California (Munz 1959). Members of this flowering (Morgan and Ackerman 1990). compound into generally six paired, herbaceous genus are characterized by Six populations are clustered on the palmately cleft leaflets each 2 to 8 mm the palmately three-foliate leaves (hence Monterey Peninsula; two are on Pebble (0.08 to 0.3 inches) long and 1 to 3 mm the name Trifolium) and flowers in Beach Company lands, two are on (0.04 to 0.1 inches) wide. Several spheroid or oblong heads. 39330 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Trifolium trichocalyx was first were reported by Theodore Niehaus in Anniella with dark dorsums, possibly collected by Amos A. Heller ‘‘in sandy 1973 and 1979 and by Yadon in 1980 in intergrades with the silvery legless pine woods about Pacific Grove’’ in forest openings or edges (CDFG 1992). lizard, have been collected north of the 1903, and described by him the One of these sites is presumed to have Salinas River and more than 160 km following year (Heller 1904). Laura F. been extirpated when Poppy Hills Golf (100 miles) to the south in the Morro McDermott (1910) considered the taxon Course was developed in 1980; the other Bay and Pismo Beach areas (Miller a variety of T. oliganthum in her two are within the boundaries of the 1943); the taxonomy of Anniella in treatment of the genus, but this was not Morse Botanical Reserve. these intergrade areas is unclear. Miller recognized in subsequent floras. Surveys for Trifolium trichocalyx (1943) and Bury (1985) considered the Axelrod (1982) deferred to Gillett’s were conducted in 1988. No plants were black legless lizard to be restricted to suggestion that T. trichocalyx is a found at the locations previously the coastal area between the Salinas and sporadic hybrid between T. reported by Niehaus and Yadon. Carmel Rivers. Bezy and others (1977) microcephalum and T. variegatum and However, several hundred to 1,000 showed the black legless lizard as recommended removing it from the list plants were scattered throughout the occurring in the Monterey area and of taxa considered Monterey endemics. 1987, 80-ha (200-acre) burn near somewhat south, while Stebbins (1985) This view was challenged by Vernal Huckleberry Hill, just to the east of the considered the distribution of this taxon Yadon (in litt., 1983) who had grown T. historical locations (CDFG 1992). No T. to be the Monterey Peninsula, Monterey trichocalyx and observed that it trichocalyx were found during a 1992 Bay, and Morro Bay. All of these authors consistently produces up to seven seeds survey of this area, probably because the agree that coastal specimens of Anniella per pod, while both purported parents dense cover of Pinus radiata (Monterey from between the Salinas and Carmel were two-seeded taxa. Trifolium pine) seedlings and resprouting Rivers are black legless lizards. As a trichocalyx has continued to be chaparral species did not allow the result, this proposal applies only to A. recognized as a distinct taxon by clover to persist. While no living plants p. nigra from this area and, specifically, Abrams (1944), Munz (1959), Howitt of T. trichocalyx currently exist in the range of this taxon as described by and Howell (1964) and Isely (1993) and native habitat, it is expected that a Miller (1943) and Bury (1985). is accepted as such by the Service. seedbank will persist in the soil until Based on electrophoretic analyses of they are ‘‘released’’ again by a fire event. Trifolium trichocalyx is a much- Anniella pulchra nigra individuals Major threats to the continued existence branched prostrate annual herb with collected from the vicinity of Asilomar of Trifolium trichocalyx include on the Monterey Peninsula and Fort Ord leaflets that are obovate-cuneate, 0.4 to alteration of natural fire cycles, a on Monterey Bay, Bezy and others 1.2 cm (0.2 to 0.5 inches) long, truncate proposed development that overlaps (1977) demonstrated that genetic or shallowly notched at the apex, and with the southern portion of the habitat distance between A. p. nigra and A. p. spinulose-denticulate along the margins. for the clover (as mapped in 1988), and pulchra was consistent with subspecific The numerous flowers are clustered into stochastic extinction due to the small classification. Further electrophoretic heads subtended by a laciniate-toothed amount of remaining habitat and the work has demonstrated genetic involucre. The calyces are 7 mm (0.3 ephemeral nature of the plant’s differences between dark morphs of A. inches) long, toothed, and reappearance after fires. conspicuously pilose; the purple The black legless lizard was originally p. pulchra from Morro Bay and the A. corollas scarcely equal the length of the described by Fischer in 1885 as Anniella p. nigra from the Monterey Peninsula calyx; the deciduous seed pods enclose nigra (Fischer 1885 in Murphy and (Rainey 1984). This latter work also up to seven seeds. The plant can be Smith 1991). It differs from the silvery revealed considerable differences in quite inconspicuous, as the prostrate legless lizard, A. pulchra, in having a allele frequencies among sites on the branches may be only 3 to 4 cm (1.2 to darker dorsum, shorter tail, and longer Monterey Peninsula, indicating genetic 1.6 inches) long. With favorable preanal scales. Currently, the black subdivisions even within that limited conditions, however, branches may legless lizard is considered a subspecies area. The emergence of a distinct form reach a length of 20 to 30 cm (8 to 12 of A. pulchra (Bezy et al. 1977), a of Anniella on the Monterey Peninsula inches) (Abrams 1944, Yadon, in litt., species with a range extending from the probably occurred when the Peninsula 1983). Branches from one large plant San Francisco Bay area south through was isolated from the mainland as an may spread through the forest litter and western California to northern Baja island. Also, the Peninsula at one time give the appearance of many plants. Of California, Mexico. Hunt (1983) revised extended farther to the north, providing the four species of Trifolium growing on the taxonomy, changing the name of the greater geographic isolation than at Huckleberry Hill, all except T. black legless lizard to A. nigra nigra and present. In post-Pleistocene times there trichocalyx contain two seeds per pod. the silvery legless lizard to A. nigra were also large rivers and bays in Trifolium trichocalyx is currently argenteum. However, this nomenclature lowland areas which may have further known from only one area, Huckleberry was not widely accepted. The isolated populations of Anniella (Bury Hill, covering approximately 16 hectares International Commission on Zoological 1985). (40 acres) (Ferreira 1992c) on the Nomenclature has been petitioned to The black legless lizard (Anniella Monterey Peninsula. The plant occurs conserve the name Anniella pulchra pulchra nigra) is a burrowing, limbless in openings within Monterey pine forest nigra (Murphy and Smith 1985, 1991); lizard about the diameter of a pencil and on poorly drained soils consisting of the Commission has not yet responded reaches a maximum length of about 23 coarse loamy sands. Trifolium with an official position on the subject. cm (9 inches). It has a black or dark trichocalyx appears to be a fire-follower, The Service accepts the more widely brown dorsum (hatchlings are light taking advantage of the reduced forest accepted treatment of the black legless colored) and is yellow ventrally (Fisher cover for the first few years after a fire, lizard as A. pulchra nigra. 1934, Gans et al. 1992, Hunt in prep., and then becoming more scarce as it is Anniella pulchra nigra has been Stebbins 1985). This species is shaded out or outcompeted as the forest collected primarily from coastal areas of distinguished from the silvery legless community recovers. Heller’s collection the Monterey Peninsula and Monterey lizard (A. p. pulchra) by dark dorsal in 1903 was made 2 years after a fire in Bay between the Salinas and Carmel coloration, lower dorsal caudal scale the area. Only scattered individuals Rivers (Bury 1985, Miller 1943). count, and a relatively short tail (Bezy Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39331 et al. 1977, Bury and Corn 1984, Hunt 4(b)(3)(A)) of the Act, and of the naturally caused stochastic events. 1983, Miller 1943). Service’s intention thereby to review the Those three species also appeared as Bury (1985) surveyed most potential status of the plant taxa named therein. category 1 species in the current plant habitat for the black legless lizard, as The above three taxa were included in notice of review (September 30, 1993; well as sites as far south as Morro Bay the July 1, 1975 notice. On June 16, 58 FR 51144). Cupressus goveniana ssp. and north to Ano Nuevo State Reserve 1976, the Service published a proposal goveniana was retained as a category-2 in San Mateo County where intergrades in the Federal Register (42 FR 24523) to species in the 1990 and 1993 notices of might occur. Black legless lizards were determine approximately 1,700 vascular review. found at 17 sites, all of which lie on or plant species to be endangered species Section 4(b)(3)(B) of the Act requires near approximately 45 km (28 miles) of pursuant to section 4 of the Act. the Secretary to make findings on coastline between the Salinas and Astragalus tener var. titi, Potentilla certain pending petitions within 12 Carmel Rivers. Key sites included City hickmanii, and Trifolium trichocalyx months of their receipt. Section 2(b)(1) of Monterey lands south of Salinas River were included in the June 16, 1976, of the 1982 amendments further National Wildlife Refuge, Marina State Federal Register proposal. requires that all petitions pending on Beach, and Fort Ord, all on Monterey General comments received in October 13, 1982, be treated as having Bay; and several smaller areas on the relation to the 1976 proposal were been newly submitted on that date. This Monterey Peninsula, including dunes or summarized in an April 26, 1978, was the case for Astragalus tener var. sandy areas at the U.S. Navy Post- Federal Register publication (43 FR titi, Potentilla hickmanii, and Trifolium graduate School, Monterey State Beach, 17909). The Endangered Species Act trichocalyx because the 1975 Point Pinos, Asilomar State Beach, Amendments of 1978 required that all Smithsonian report was accepted as a Spanish Bay, and Carmel State Beach. proposals over 2 years old be petition. On October 13, 1983, the The largest population of the black withdrawn. A 1-year grace period was Service found that the petitioned listing legless lizard on federal land is on the given to those proposals already more of these species was warranted but Fort Ord property. This military base is than 2 years old. In the December 10, precluded by other pending listing undergoing closure; much of the land 1979, Federal Register (44 FR 70796), actions, in accordance with section will be transferred to State and the Service published a notice of 4(b)(3)(B)(iii) of the Act; notification of University ownership, and habitat withdrawal of the portion of the June 6, this finding was published on January management plans that call for the 1976, proposal that had not been made 20, 1984 (49 FR 2485). Such a finding protection of the lizard will be final, along with four other proposals requires the petition to be recycled, developed. that had expired. pursuant to section 4(b)(3)(C)(i) of the Within the very limited range of the The Service published an updated Act. In October 1984, 1985, 1986, 1987, black legless lizard, habitat destruction notice of review for plants on December 1988, 1989, 1990, 1991 and 1992, the due to urbanization, particularly on the 15, 1980 (45 FR 82480). This notice Service found that the petitioned listing Monterey Peninsula, has severely included Astragalus tener var. titi, of Astragalus tener var. titi, Potentilla reduced the distribution of this lizard. Potentilla hickmanii, and Trifolium hickmanii, and Trifolium trichocalyx About 60 percent of all localities that trichocalyx as category-1 species. was warranted, but that the listing of historically supported black legless Category-1 species are taxa for which these species was precluded by other lizards no longer contain suitable data in the Service’s possession are pending proposals of higher priority. habitat (Lawrence E. Hunt, University of sufficient to support proposals for Publication of this proposal constitutes California, Santa Barbara, pers. comm., listing. On November 28, 1983, the the final finding for the petitioned 1993). Remaining habitat is degraded by Service published in the Federal actions on these three species. human trampling, sand mining, Register a supplement to the Notice of The portion of this proposal to list vehicular use, and introduction of Review (48 FR 53640); the plant notice Piperia yadonii is largely based on exotic plants, particularly Carpobrotus was again revised September 27, 1985 scientific and commercial information edulis (hottentot fig) and related species (50 FR 39526). In both of these notices, on the species, unpublished reports and Ammophila arenaria (Marram Astragalus tener var. titi, Potentilla from the California Department of Fish grass). Remaining habitat has also been hickmanii, and Trifolium trichocalyx and Game, and information submitted fragmented by highways and other were included as category-2 species. by Randall Morgan, which provides forms of development (Bury 1985). Category-2 species are taxa for which sufficient information to support a data in the Service’s possession indicate proposed rule to list this species as Previous Federal Action listing may be appropriate, but for endangered. Piperia yadonii first Federal government action on the five which additional data on biological appeared as a candidate in the 1993 plants began as a result of section 12 of vulnerability and threats are needed to notice of review (58 FR 51144) in the Endangered Species Act of 1973, support a proposed rule. In the 1985 category 1. which directed the Secretary of the notice, Cupressus goveniana ssp. A reevaluation of the existing data on Smithsonian Institution to prepare a goveniana (as Cupressus goveniana) was the status of Cupressus goveniana ssp. report on those plants considered to be also included for the first time as a goveniana and threats to its continued endangered, threatened, or extinct. This category-2 species. On February 21, existence provides sufficient report, designated as House Document 1990 (55 FR 6184), the plant notice was information to support a proposal to list No. 94–51, was presented to Congress again revised, and Astragalus tener var. this species as threatened. on January 9, 1975. In that report, titi, Potentilla hickmanii, and Trifolium In its original Review of Vertebrate Astragalus tener var. titi, Potentilla trichocalyx were included as category-1 Wildlife, published in the Federal hickmanii, and Trifolium trichocalyx species, primarily because of additional Register on December 30, 1982 (47 FR were recommended for endangered survey information supplied by the 58454), the Service included the black status. On July 1, 1975, the Service California Natural Diversity Data Base, legless lizard as a category-2 candidate published a notice in the Federal which indicated that the extremely for listing. Subsequent revised Register (40 FR 27823) of its acceptance limited populations of these taxa made candidate lists published September 18, of the report as a petition within the them particularly vulnerable to impacts 1985 (50 FR 37958); January 6, 1989 (54 context of section 4(c)(2) (now section from a number of human activities and FR 554); and November 21, 1991 (56 FR 39332 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 58804), also included this taxa as a Indian Village site. Several of the private lands on Monterey Bay, but this category-2 candidate. New information planned subdivisions may adversely habitat was of limited distribution, in on the extent of habitat loss and the affect Piperia yadonii. very small parcels, and subject to effects of Carpobrotus edulis (hottentot Additional development in Pebble development (R.B. Bury, pers. comm., fig) on habitat quality now support a Beach is currently being planned that 1992). proposed rule to list this species as may affect habitat for C. goveniana ssp. Exact amount of habitat loss endangered. goveniana, P. yadonii, and T. throughout the range since 1984 has not trichocalyx (Pebble Beach Company been quantified (R.B. Bury, pers. comm., Summary of Factors Affecting the 1992). A hospice facility, to be built on 1993; T. Moss, pers. comm., 1993). Of Species lands donated by the Pebble Beach 27 localities from which legless lizards Section 4 of the Endangered Species Company and recently approved by the have been collected between the Salinas Act (16 U.S.C. 1533) and regulations (50 City of Monterey, will remove a portion and Carmel Rivers, only 10 or 11 still CFR Part 424) promulgated to of a population of P. yadonii (Earth contain suitable habitat (L. E. Hunt, implement the listing provisions of the Metrics Inc. 1992). Maintenance of pers. comm., 1993). Act set forth the procedures for adding facilities, including mowing of golf Although heavily impacted by species to the Federal Lists. A species courses and roadsides can indirectly military activities, the largest acreage of may be determined to be an endangered affect A. tener var. titi, P. hickmanii, and remaining suitable habitat for the black or threatened species due to one or more P. yadonii. legless lizard identified by Bury (1985) of the five factors described in section The black legless lizard was never occurs at Fort Ord. This U.S. Army base 4(a)(1). These factors and their widely distributed. It is still extant is scheduled to be closed, with the application to Astragalus tener Gray var. within its range between the Salinas and closure process occurring over a period titi (Eastw.) Barneby (coastal dunes Carmel Rivers; however, much of the of several years. Activities associated milk-vetch), Cupressus goveniana Gord. coastal sandy plains and dunes that with the closure process, such as ssp. goveniana (Gowen cypress), Piperia were historic habitat for this lizard have disposal (sale of the land) and clean-up, yadonii Morgan & Ackerman (Yadon’s been converted to urban or other uses, could adversely affect the species. The piperia), Potentilla hickmanii Eastw. particularly on the Monterey Peninsula. future disposition of the land is (Hickman’s potentilla), Trifolium Although precise estimates are unknown at this time, however, it is trichocalyx Heller (Monterey clover), unavailable, in 1984 Bury found fewer likely that some portion of the base will and the black legless lizard (Anniella than 35 hectares (86 acres) of suitable be acquired by the private sector for pulchra nigra Fischer) are as follows: habitat for this species on the Monterey development. Planned development at Peninsula (Bury 1985). Another 10 to 14 Sand City, adjacent to Fort Ord, would A. The Present or Threatened ha (25 to 35 acres) of potentially suitable result in a loss of black legless lizard Destruction, Modification, or habitat existed near Fan Shell Beach on Curtailment of its Habitat or Range habitat, although restoration and long- the Monterey Peninsula but was not term conservation of lands set aside for Three of the plant taxa— Astragalus surveyed at the time (R.B. Bury, Smith’s blue butterfly (Ephilotes tener var. titi, Potentilla hickmanii, and National Biological Survey, Ft. Collins, enoptes smithi), a federally listed Trifolium trichocalyx—occur solely on Colorado, pers. comm., 1993). This endangered species, would enhance the the Monterey Peninsula. The largest of habitat is still intact, but remains to be value of remaining habitat within Sand two Cupressus goveniana ssp. surveyed (T. Moss, Asilomar State City for this lizard. goveniana stands occurs on the Beach, California, pers. comm., 1993). In Monterey Peninsula, as does the largest reference to the Monterey Peninsula, B. Overutilization for Commercial, population of Piperia yadonii. Habitat Bury (1985) states that ‘‘prior habitat Recreational, Scientific, or Educational for all five plant taxa has been altered, was much more extensive but has been Purposes destroyed, and fragmented by the obliterated by urbanization, roadways, Overutilization is not currently subdivision of residential lots and sand mining, and other surface- known to be a factor for the five plant conversion to golf courses and other modifying activities.’’ taxa, but unrestricted collecting for recreational facilities. On Monterey Bay, south of the Salinas scientific or horticultural purposes or Of the approximately 4,000 hectares River, Bury (1985) identified about 374 excessive visits by individuals (ha) (10,000 acres) of Monterey Pine hectares (925 acres) of potential interested in seeing rare plants could forest mapped on the Peninsula by the Anniella pulchra nigra habitat, but result from increased publicity U.S. Forest Service in the 1930s, less nearly all areas examined were following publication of this proposal. than 10 percent remains. This remaining impacted by one or more human uses Piperia yadonii, like many other orchids 10 percent is comprised of scattered suspected of negatively impacting and showy-flowered monocots, may be islands of forest, the largest of which are legless lizard habitat and populations, particularly vulnerable to collecting by a few hundred hectares (several including sand mining, human amateur and professional hundred acres) in size. The Pebble trampling, military activities, and off- horticulturalists due to the plant’s Beach Company is currently developing road vehicle activities. The largest attractive flower and the ease with a proposal to convert 277 ha (685 acres) contiguous tract of black legless lizard which it can be transplanted. into 17 residential subdivisions, another habitat exists at Ford Ord, although Vandalism is a potential threat for golf course, and associated recreational estimates on the extent of habitat differ. these plant species. The sites that these facilities (Pebble Beach Company 1992). Estimates of suitable habitat at Fort Ord plants inhabit could be easily Several of these subdivisions could vary from 190 hectares (470 acres) (Bury vandalized, resulting in the destruction remove individuals or clumps of 1985) to 1,206 hectares (2,980 acres) of the plants. Many of the sites where Cupressus goveniana ssp. goveniana (U.S. Army Corps of Engineers 1993). these plants exist are small and easily that currently survive as islands of The latter figure is based primarily on accessible, increasing their native vegetation within the golf course potentially suitable habitat in which the susceptibility to destruction. landscape. A planned subdivision is presence of the black legless lizard has Although the black legless lizard is of adjacent to occurrences of T. trichocalyx not been confirmed. Additional suitable interest to many people because it is an and Astragalus tener var. titi at the habitat existed in 1984 on unsurveyed unusual reptile, overutilization does not Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39333 appear to be a factor threatening the law appears to exempt the taking of Marina and Monterey State Beaches, species (Bury 1985). The State of such plants via habitat modification or and land management practices on California prohibits taking or possession land use change by the landowner. After Federal lands, including the Salinas of black legless lizards without a special the California Department of Fish and River National Wildlife Refuge, Fort permit (see Factor D). Federal listing Game notifies a landowner that a State- Ord, and the Naval Post-graduate could raise the interest in this animal listed plant grows on his or her School. The black legless lizard is often among reptilian trade markets and property, State law requires only that given special consideration in land use increase the threat of collection. Interest the landowner notify the agency ‘‘at planning and National Environmental in the species among reptile collectors least 10 days in advance of changing the Policy Act and California could pose a serious threat to land use to allow salvage of such plant’’ Environmental Quality Act compliance populations that contain few (section 1913). documents. The California Coastal Act individuals. The Pebble Beach Company, the regulates approval of developments primary landowner on the Monterey C. Disease or Predation within the coastal zone and has slowed Peninsula, has developed policy to the loss of coastal habitats such as the Disease and predation are not known protect sensitive species and habitats for dunes and sand habitats used by black to be factors affecting the five plant taxa current management activities, as well legless lizards. This species has also being proposed as endangered. Several as planning of future development been afforded some protection references discuss diseases that affect (Fryberger, in litt., 1992). While portions indirectly through special management cypresses (Peterson 1967, Wagener of the Astragalus tener var. titi for Federal candidate plant species that 1948). However, diseases, such as the population and the Potentilla hickmanii occur in coastal areas. Where the black oak root fungus (Armillariella mellea) population have been fenced off, the legless lizard is sympatric with the and the canker-producing strain of remaining portions remain vulnerable to endangered Smith’s blue butterfly, Cornyeum, primarily seem to attack disturbance. No specific protection protection of habitat for the butterfly has cypresses planted outside of their native currently exists for Piperia yadonii. also benefitted the legless lizard. range and in nursery settings (Wagener Cupressus goveniana ssp. goveniana These regulatory mechanisms have 1948). No signs of disease or predation and habitat for T. trichocalyx are slowed the loss, degradation, and have been noted by biologists familiar partially protected by the restriction on fragmentation of black legless lizard with the two Cupressus goveniana ssp. development within the Morse Reserve. habitat, but additional protection is goveniana stands (Jim Griffin, Research However, development of a golf course needed to address regional habitat Botanist, Hastings Natural History in the early 1980s removed a significant conservation and long-term survival and Reservation, Carmel Valley, CA, pers. number of C. goveniana ssp. goveniana recovery of this species. comm., 1992, Yadon, pers. comm., trees and fragmented the remaining 1992). habitat. Development is currently being Sand City is in the process of The black legless lizard has no known planned within historical habitat for developing a habitat conservation plan diseases, and, although it harbors some both of these taxa adjacent to the for a 13 acre area known as East Dunes. internal parasites (Hunt and Reserve. This area supports Smith’s blue vanLobenSels in press in Bury 1985), A management plan for Point Lobos butterfly (Euphilotes enoptes smithi), populations of this lizard do not seem State Park (California Department of Gilia tenuiflora var. arenaria (sand to be negatively affected by either Parks and Recreation 1979) states that gilia), Chorizanthe pungens var. disease or parasites. Many lizards have the major management effort within the pungens (Monterey spineflower), broken or scarred tails, indicating preserve will be ‘‘management toward species that are federally listed as possible attempted predation (Bury the pristine state, that is, the state the endangered, and the black legless lizard. 1985). Miller (1944) indicated predation ecosystem(s) would have achieved if Sand City is including the black legless by feral house cats may affect some European man had not interfered,’’ but lizard in this planning process, and it is populations. also to provide limited public access to likely that the plan would adequately the Cupressus goveniana ssp. goveniana provide for the conservation needs of D. The Inadequacy of Existing area. The stand is currently protected the lizard on this one site. Regulatory Mechanisms from human disturbance by virtue of its E. Other Natural or Manmade Factors Under the Native Plant Protection Act isolation and lack of public access, but Affecting Its Continued Existence (California Fish and Game Code section the acquisition of key parcels now in 1900 et seq.) and the California private ownership may allow for Two of the five plant taxa occur in Endangered Species Act (California Fish development of limited public access. small patches of meadow habitat and Game Code section 2050 et seq.), Any future development on adjacent containing a high percentage of non- the California Fish and Game private parcels may increase the native taxa. Along 17-Mile Drive, Commission has listed Astragalus tener vulnerability of C. goveniana ssp. Astragalus tener var. titi occurs with the var. titi, Potentilla hickmanii, and goveniana to human disturbance. non-native Plantago coronopus (cut-leaf Trifolium trichocalyx as endangered. The black legless lizard is listed as a plantain) and Carpobrotus edulis. These Piperia yadonii and Cupressus protected reptile under Section 650 of non-native species spread rapidly and goveniana ssp. goveniana are on List 1B the California Sport Fishing regulations. compete aggressively with native of the California Native Plant Society’s Except under special permit from the species for space. The Pebble Beach (CNPS) Inventory (CNPS 1992), California Department of Fish and Company has an active C. edulis indicating that, in accordance with Game, collection of black legless lizards eradication program in and adjacent to section 1901, of the California is prohibited by the State of California. the exclosure on the ocean side of 17- Department of Fish and Game Code, it The habitat of this species, however, is Mile Drive. However, C. edulis has been is eligible for State listing. Though both not specifically protected by any State planted and is being maintained within the Native Plant Protection Act and the or Federal regulation. Land use on black a few feet of the unfenced portion of the California Endangered Species Act legless lizard habitat is controlled by milk-vetch habitat on the inland side of prohibit the ‘‘take’’ of State-listed plants local zoning, California State Park 17-Mile Drive, and P. coronopus, a (section 1908 and section 2080), State regulations on State parks such as prolific seeder, is physically crowding 39334 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules out native species on both sides of 17- fire has been so vigorous that the pine variability from such events may leave Mile Drive (Ferreira 1992a). may be expanding its range at the species unable to adapt to changing The only population of Potentilla expense of Cupressus goveniana ssp. environmental conditions (Brussard hickmanii occurs at Indian Village, goveniana. Yadon (retired Director, 1985, Menges 1990, Shaffer 1981). where Ferreira (1992b) noted four non- Pacific Grove Museum of Natural Existing black legless lizard habitat is native grass taxa associated with the History, pers. comm., 1992) believes severely fragmented due to construction potentilla at this site: Aira caryophylla, that the pine’s preference for richer soils of roads, golf courses, and other urban Bromus mollis, Festuca arundinacea, than those that support C. goveniana development that creates barriers to and Lolium multiflorum. The Festuca ssp. goveniana would prevent long-term movement and isolates populations. may have been introduced in a establishment of pines in C. goveniana Some extant populations are restricted ‘‘meadow mix’’ used on adjacent ssp. goveniana habitat. to extremely small habitat patches, such fairways; its stature and invasiveness Alteration of habitat due to as at Monterey State Beach and the U.S. appear to offer competition to the continuing recreational use of portions Navy Post-Graduate School, where a potentilla. Plantago coronopus is also of Pebble Beach threaten the population persists on a remnant 0.5- present at this site. precipitously small populations of hectare (1.2-acre) habitat patch (Bury Cortaderia atacamensis (pampasgrass) Astragalus tener var. titi, and Potentilla 1985). Because of small size, these and Cytisus sp. (genesta) are two other hickmanii. Trampling by humans and fragmented populations have an alien plant taxa that compete with horses can affect these taxa directly, as increased probability of extinction from native species on the Monterey well as alter soil compaction and stochastic (i.e., random) events (Wilcox Peninsula. The Pebble Beach Company erodability such that non-native taxa and Murphy 1985). Once extirpated, has an on-going eradication program for increase at the expense of native taxa. isolation can prevent recolonization of these two taxa in the Huckleberry Hill At least three, and possibly all, of the these habitat patches (Frankel and Soule area adjacent to the Cupressus five plant taxa are threatened with 1981). goveniana ssp. goveniana. However, stochastic extinction by virtue of the The black legless lizard exhibits numerous fire roads provide open limited number of individuals and/or relatively low fecundity and it is habitat for these invasive taxa and it is range of the existing populations. suspected that not all adult females unlikely that they will ever be Inbreeding may affect small breed each year (Goldberg and Miller completely eradicated from the area. populations, making local extirpations 1985, Miller 1944). The related silvery Nearly all occupied or potentially more likely from the inability to legless lizard has a 4 month gestation occupied black legless lizard localities produce viable offspring in sufficient period, and produces only 1 or 2 eggs have substantial populations of exotic numbers. Small populations are also per adult female per year (Goldberg and plants, particularly Carpobrotus edulis vulnerable to extinction by a single Miller 1985). Similarly, an average of (hottentot fig). Legless lizards are human-caused or natural event. While 1.7 eggs were found in the oviducts of primarily associated with moist soil and annual plant taxa, such as Astragalus black legless lizards (Miller 1944). This leaf litter under native vegetation such tener var. titi, will undergo radical low reproductive potential implies as Lupinus albifrons (bush lupine), fluctuations in population size, the relatively long population recovery Haplopappus ericoides (mock heather), long-term perpetuation of this taxa times and a heightened sensitivity to and Artemisia sp. (sagewort), and are depends on maintaining seed habitat impacts such as off-road less abundant in areas dominated by C. production at some critical level, and vehicles, trampling, and other edulis (Bury 1985, City of Sand City maintaining appropriate habitat for disturbances. 1992, Miller 1944, Morey 1988, Stebbins population expansion. While short-lived Strong storms and extreme high tides 1954). As part of habitat restoration perennial taxa like Piperia yadonii and periodically occur at Monterey Bay. efforts at Asilomar State Beach, over 12 Potentilla hickmanii may be able to These high tides can result in erosion of hectares (30 acres) of C. edulis were persist through a few climatically coastal dunes and shorelines, causing removed by hand. During this effort, unfavorable years, it is still essential to destruction of habitat and mortality of black legless lizards were not found in maintain critical seed production levels black legless lizards. Without adjacent pure stands of C. edulis, but were and to maintain appropriate habitat. refugia, such habitats can become encountered where native shrubs were Trifolium trichocalyx exemplifies a devoid of lizards with little chance of mixed with the hottentot fig (T. Moss, taxon that may persist only as a recolonization. Because of the pers. comm., 1993). Hottentot fig may seedbank for years until released by a fragmented distribution and relatively negatively affect insect populations, the fire event. Maintaining habitat and low reproductive potential of the black prey base for the black legless lizard certain fire management prescriptions legless lizard, these natural events may (Miller 1944, Stebbins 1954), and thus, may be required to prevent the increase the chance of local adversely affect Anniella populations extinction of this species. extirpations. (Bury 1985). The range occupied by Cupressus As mentioned in Factor A, the alien Fire plays an important role in the goveniana ssp. goveniana is considered plant Carpobrotus edulis may negatively regeneration of all cypress taxa. extremely small; only Cupressus impact native insect populations that Alteration of the natural fire cycle may abramsiana (Santa Cruz cypress) and C. provide prey for Anniella species negatively affect Cupressus goveniana macrocarpa (Monterey cypress) have (Miller 1944) and that could ssp. goveniana regeneration. Fire is stands that occupy as few hectares conceivably affect Anniella populations essential since it opens cones that (acres) as C. goveniana ssp. goveniana (Bury 1985). otherwise remain unopened on the (Griffin and Critchfield 1976). The Service has carefully assessed the trees, and it creates conditions Apparently the 1901 fire on Huckleberry best scientific and commercial appropriate for seedling establishment Hill reduced C. goveniana ssp. information available regarding the past, (Vogl et al. 1988). goveniana to only a few hectares. present, and future threats faced by Griffin (pers. comm., 1992) and Though later observers commented on these species in determining to propose Ferreira (1992c) have noted that the extent of recolonization after the fire this rule. Based on this evaluation, the establishment of Pinus radiata (Dunning 1906 in Vogl et al. 1988, Wolf Service finds that Astragalus tener var. (Monterey pine) seedlings after the 1987 1948), the reduction in genetic titi, Piperia yadonii, Potentilla Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39335 hickmanii, Trifolium trichocalyx, and (1) the species is imperiled by taking or recovery actions, requirements for the black legless lizard are in imminent other human activity, and identification Federal protection, and prohibitions danger of extinction throughout all or a of critical habitat can be expected to against certain activities. Recognition significant portion of their ranges. increase the degree of such threat to the through listing encourages and results Threats to these four taxa include one or species; or (2) such designation of in conservation actions by Federal, more of the following: habitat critical habitat would not be beneficial State, and private agencies, groups, and destruction, residential development, to the species. individuals. The Endangered Species road maintenance activities, In the case of Astragalus tener var. titi, Act provides for possible land competition from alien plants, alteration Potentilla hickmanii, Piperia yadonii, acquisition and cooperation with the of natural fire cycles, military activities, Cupressus goveniana ssp. goveniana, States and requires that recovery actions and extinction from stochastic events. Trifolium trichocalyx, and the black be carried out for all listed species. Such For the reasons discussed above, the legless lizard both criteria are met. The actions are initiated by the Service Service finds that Cupressus goveniana publication of critical habitat following a listing. The protection ssp. goveniana is likely to become descriptions and maps required in a required of Federal agencies and the endangered within the foreseeable proposal for critical habitat could prohibitions against certain activities future throughout all or a significant increase the degree of threat to these six involving listed plants are discussed, in portion of its range due to habitat taxa from possible take or vandalism part, below. alteration and destruction, urban and, therefore, could contribute to their Section 7(a) of the Act, as amended, development, disruption of natural fire decline and increase enforcement requires Federal agencies to evaluate cycles, competition from alien plants, problems. These six taxa occur within their actions with respect to any species and stochastic events. The Service has small areas at few locations and are that is proposed or listed as endangered determined that threatened rather than vulnerable to stochastic extinction. The or threatened and with respect to its endangered status is appropriate for C. listing of these plants and the lizard as critical habitat, if any is being goveniana ssp. goveniana primarily either endangered or threatened designated. Regulations implementing because one of two populations (the publicizes the rarity of the taxa and thus this interagency cooperation provision Gibson Creek stand managed by the can make them attractive to researchers, of the Act are codified at 50 CFR Part California Department of Parks and curiosity seekers, or collectors of rare 402. Section 7(a)(4) of the Act requires Recreation) has not been significantly plants or animals. Federal agencies to confer informally affected by human activities. Also, since A determination of critical habitat with the Service on any action that is it is long-lived, C. goveniana ssp. would result in no known benefit to likely to jeopardize the continued goveniana may be able to withstand a these taxa. The closure of Fort Ord is existence of a proposed species or result certain level of habitat disturbance as resulting in the transfer of lands to State in destruction or adverse modification long as sufficient habitat is maintained. Parks and the University of California at of proposed critical habitat. If a species Other alternatives to this action were Santa Cruz ownership. These lands will is listed subsequently, section 7(a)(2) considered but not preferred because be designated as protected habitats for requires Federal agencies to insure that not listing this species at all would not which habitat management plans are activities they authorize, fund, or carry provide adequate protection and not be under development. Other than the Fort out are not likely to jeopardize the in keeping with the purposes of the Act, Ord property, most of the known continued existence of such a species or and listing it as endangered would not populations of these species are found to destroy or adversely modify its be appropriate, as the California on state or private lands where Federal critical habitat. If a Federal action may Department of Parks and Recreation has involvement in land-use activities does affect a listed species or its critical decreased the danger of extinction at the not generally occur. Additional habitat, the responsible Federal agency present time. Therefore, the preferred protection resulting from critical habitat must enter into formal consultation with action is to propose Astragalus tener designation is achieved through the the Service. var. titi, Piperia yadonii, Potentilla section 7 consultation process. Since Two of the taxa, Piperia yadonii hickmanii, Trifolium trichocalyx, and section 7 would not apply to land-use (Yadon’s piperia) and the black legless the black legless lizard as endangered; activities occurring on State and private lizard, occur within the boundaries of and Cupressus goveniana ssp. lands and Fort Ord will designate Fort Ord. Military training activities goveniana as threatened. protected habitats for these species, may affect these taxa and their habitat critical habitat designation would not as could the Federal decision for the Critical Habitat appreciably benefit these species. ultimate disposition of this property. Section 4(a)(3) of the Act, as All Federal and State agencies The Department of Defense would be amended, requires that, to the maximum involved and local major land owners required to consult with the Service on extent prudent and determinable, the and planning agencies have been actions that may affect these two Secretary designate critical habitat at the notified of the general location and species. Other Federal lands that time the taxa are determined to be importance of protecting these species’ support habitat for the black legless endangered or threatened. Critical habitat. Protection of these species’ lizard include the Salinas National habitat results in additional protection habitat will be addressed through the Wildlife Refuge and the Naval Post- to a species’ habitat with respect to recovery process and through the graduate School in Monterey; however, projects that are federally authorized, section 7 consultation process. there are no currently proposed funded, or carried out, through the Therefore, the Service finds that activities on those lands that would consultation requirements described in designation of critical habitat for these affect the lizard. Urban development section 7 of the Act. The Service finds species is not prudent at this time. projects that are occurring on private that designation of critical habitat is not lands may require permits from Federal presently prudent for these taxa. The Available Conservation Measures agencies, such as section 404 permits Service’s regulations (50 CFR Conservation measures provided to from the Army Corps of Engineers. 424.12(a)(1)) state that designation of species listed as endangered or The Act and its implementing critical habitat is not prudent when one threatened under the Endangered regulations found at 50 CFR 17.61, or both of the following situations exist: Species Act include recognition, 17.62, and 17.63 for endangered plants, 39336 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules and at 50 CFR 17.71 and 17.72 for trap, capture, collect, or attempt any final regulation that differs from this threatened plants set forth a series of such conduct), import or export, proposal. general prohibitions and exceptions that transport in interstate or foreign The Endangered Species Act provides apply to all endangered or threatened commerce in the course of commercial for a public hearing on this proposal, if plants. With respect to the four plant activity, or sell or offer for sale in requested. Requests must be received by taxa proposed to be listed as interstate or foreign commerce any September 25, 1995. Such requests must endangered, all trade prohibitions of listed wildlife species. It also is illegal be made in writing and addressed to the section 9(a)(2) of the Act, implemented to possess, sell, deliver, carry, transport, Field Supervisor of the Ventura Field by 50 CFR 17.61 and 17.71, would or ship any such wildlife that has been Office (see ADDRESSES section). apply. These prohibitions, in part, make taken illegally. Certain exceptions apply it illegal with respect to any endangered to agents of the Service and State National Environmental Policy Act plant for any person subject to the conservation agencies. The Fish and Wildlife Service has jurisdiction of the United States to Permits may be issued to carry out determined that an Environmental import or export; transport in interstate otherwise prohibited activities Assessment, as defined under the or foreign commerce in the course of a involving endangered wildlife species authority of the National Environmental commercial activity; sell or offer for sale under certain circumstances. Policy Act of 1969, need not be these species in interstate or foreign Regulations governing permits are at 50 prepared in connection with regulations commerce; remove and reduce to CFR 17.22 and 17.23. Such permits are adopted pursuant to section 4(a) of the possession the species from areas under available for scientific purposes, to Endangered Species Act of 1973, as Federal jurisdiction; maliciously enhance the propagation or survival of amended. A notice outlining the damage or destroy any such species on the species, and for incidental take in Service’s reasons for this determination any area under Federal jurisdiction; or connection with otherwise lawful was published in the Federal Register remove, cut, dig up, damage, or destroy activities. on October 25, 1983 (48 FR 49244). any such endangered plant species on Requests for copies of the regulations any other area in knowing violation of on listed plants and wildlife and References Cited any State law or regulation or in the inquiries regarding them may be A complete list of all references cited course of any violation of a State addressed to the U.S. Fish and Wildlife herein is available upon request from criminal trespass law. Cupressus Service, Permits Branch, 911 N.E. 11th the Ventura Field Office (see ADDRESSES goveniana ssp. goveniana (Gowen Avenue, Portland, OR 97232–4181 section). cypress), proposed to be listed as (telephone 503/231–6241, facsimile threatened, would be subject to similar 503/231–6243). Authors prohibitions (16 U.S.C. 1538(a)(2)(E); 50 CFR 17.61, 17.71). Public Comments Solicited The primary authors of this notice are Seeds from cultivated specimens of The Service intends that any final Constance Rutherford and James threatened plant species are exempt action resulting from this proposal will Rorabaugh, Ventura Field Office (see from these prohibitions provided that a be as accurate and as effective as ADDRESSES section). statement of ‘‘cultivated origin’’ appears possible. Therefore, comments or List of Subjects in 50 CFR Part 17 on their containers. Certain exceptions suggestions from the public, other Endangered and threatened species, apply to agents of the Service and State concerned governmental agencies, the Exports, Imports, Reporting and conservation agencies. The Act and 50 scientific community, industry, or any recordkeeping requirements, and CFR 17.62, 17.63, and 17.72 also other interested party concerning this Transportation. provide for the issuance of permits to proposed rule are hereby solicited. carry out otherwise prohibited activities Comments particularly are sought Proposed Regulations Promulgation involving endangered or threatened concerning: plant species under certain (1) Biological, commercial trade, or PART 17Ð[AMENDED] circumstances. Several central coast other relevant data concerning any Accordingly, it is hereby proposed to nurseries have cultivated Cupressus threat (or lack thereof) to these species; amend part 17, subchapter B of chapter goveniana ssp. goveniana on occasion, (2) The location of any additional I, title 50 of the Code of Federal but it apparently is not popular enough populations of these species and the Regulations, as set forth below: to be kept in stock on a regular basis. reasons why any habitat should or The Pebble Beach Company is actively should not be determined to be critical 1. The authority citation for Part 17 cultivating this plant to be used in habitat as provided by section 4 of the continues to read as follows: efforts to restore disturbed habitat Act; Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (Fryberger, in litt., 1992). (3) Additional information concerning 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– The Act and implementing the range, distribution, and population 625, 100 Stat. 3500; unless otherwise noted. regulations found at 50 CFR 17.21 set size of these species; and 2. It is proposed to amend § 17.11(h) forth a series of general prohibitions and (4) Current or planned activities in the by adding the following, in alphabetical exceptions that apply to all endangered subject area and their possible impacts order under REPTILES, to the List of wildlife. With respect to the black on these species. Endangered and Threatened Wildlife: legless lizard, these prohibitions, in The final decision on this proposal part, would make it illegal for any will take into consideration the § 17.11 Endangered and threatened person subject to the jurisdiction of the comments and any additional wildlife. United States to take (including harass, information received by the Service, and * * * * * harm, pursue, hunt, shoot, wound, kill, such communications may lead to a (h) * * * Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39337 Species Verte- brate popu- lation Critical Special Historic range where en- When listed Status habitat rules Common name Scientific name dangered or threat- ened ******* REPTILES ******* Lizard, black legless .... Anniella pulchra nigra U.S.A. (CA) ...... Entire ...... E NA NA ******* 3. Section 17.12(h) is amended by the List of Endangered and Threatened § 17.12 Endangered and threatened plants. adding the following, in alphabetical Plants to read as follows: * * * * * order under FLOWERING PLANTS to (h) * * * Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules FLOWERING PLANTS ******* Astragalus tener var. Coastal dunes milk- U.S.A. (CA) ...... Fabaceae ...... E ...... NA NA titi. vetch. ******* Cupressus Gowen cypress ...... U.S.A. (CA) ...... Cupressaceae ...... T ...... NA NA goveniana ssp. goveniana. ******* Piperia yadonii ...... Yadon's piperia ...... U.S.A. (CA) ...... Orchidaceae ...... E ...... NA NA ******* Potentilla hickmanii . Hickman's potentilla U.S.A. (CA) ...... Rosaceae ...... E ...... NA NA ******* Trifolium trichocalyx Monterey clover ...... U.S.A. (CA) ...... Fabaceae ...... E ...... NA NA ******* Dated: December 30, 1994. ACTION: Proposed rule. Bernardino and San Jacinto mountains. Mollie H. Beattie, Arenaria ursina, Castilleja cinerea, and Director, U.S. Fish and Wildlife Service. SUMMARY: The Fish and Wildlife Service Eriogonum kennedyi var. Editorial note: This document was (Service) proposes to list two plants as austromontanum occur primarily on received at the Office of the Federal Register endangered under the Endangered pebble plains that are relatively open on July 27, 1995. Species Act of 1973, as amended (Act): areas with clay soils. Poa atropurpurea Poa atropurpurea (San Bernardino and Taraxacum californicum are found [FR Doc. 95–18811 Filed 8–1–95; 8:45 am] bluegrass) and Taraxacum californicum in mountain meadows. The only known BILLING CODE 4310±55±P (California dandelion). The Service also population of Trichostema proposes to list five plants as austromontanum ssp. compactum is threatened: Arabis johnstonii 50 CFR Part 17 associated with an ephemeral pond. (Johnston’s rock-cress), Arenaria ursina Arabis johnstonii is found in forest and (Bear Valley sandwort), Castilleja chaparral habitats. These seven taxa are RIN 1018±AD34 cinerea (ash-grey Indian paintbrush), threatened by one or more of the Endangered and Threatened Wildlife Eriogonum kennedyi var. following: urbanization, habitat and Plants; Proposed Endangered or austromontanum (southern mountain degradation by domestic animals, Threatened Status for Seven Plants wild buckwheat), and Trichostema grazing, competition from introduced From the Mountains of Southern austromontanum ssp. compactum weeds, off-road vehicle (ORV) use, California (Hidden Lake bluecurls). trampling, recreational development, These species are restricted to the alteration of the hydrologic regime, AGENCY: Fish and Wildlife Service, Transverse and Peninsular Ranges of overcollection, and genetic absorption Interior. southern California, primarily the San with exotic species. Poa atropurpurea, 39338 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules T. californicum, and T. trampling in the Garner Valley, and the Barrows 1990). Habitat loss for this austromontanum ssp. compactum are construction of the Desert Divide trail. species began in the 1880’s with the also threatened by stochastic extinction Urban and recreational pressures have construction of the Big Bear Lake due to their small population sizes and substantially affected the species over reservoir in the San Bernardino limited distributions. This proposed the past 30 years. Mountains in an area that likely rule, if made final, would extend Arenaria ursina (Bear Valley contained extensive meadows and protection under the Act to these sandwort), Castilleja cinerea (ash-grey pebble plains. Over the past 100 years, species. Indian paintbrush), and Eriogonum cattle trampling, mining, timber harvest, DATES: Comments from all interested kennedyi var. austromontanum off-road vehicle use, fuelwood parties must be received by October 9, (southern mountain wild buckwheat) harvesting, campground and ski area 1995. Public hearing requests must be are perennial plants that occur development, and urbanization have received by September 25, 1995. predominantly on pebble plains in the affected the habitat of this species. ADDRESSES: Comments and materials San Bernardino Mountains of San Castilleja cinerea is a semi-parasitic concerning this proposal should be Bernardino County. These plains are perennial plant in the snapdragon submitted to the Field Supervisor, U.S. sparsely vegetated openings in the family (Scrophulariaceae), with few to Fish and Wildlife Service, Carlsbad surrounding forest with clay soils many ascending to decumbent stems, 1 Field Office, 2730 Loker Avenue West, supporting a uniquely adapted to 2 decimeters (dm) (4 to 8 in.) tall, Carlsbad, California 92008. Comments assemblage of plant species. Pebble sprouting from a woody root-crown. The and materials received will be available plain habitat is found between 1,800 short grayish leaves are from 1 to 2 cm for public inspection, by appointment, and 2,300 m (6,000 and 7,500 ft) in (0.4 to 0.8 in.) long and are covered with during normal business hours at the elevation, and occurs only within a 240 whitish hairs. The inflorescence is a above address. square km (92 square mile (sq mi)) area greenish yellow spike, tinged with red in the San Bernardino Mountains (Derby or purplish, and with distinctive FOR FURTHER INFORMATION CONTACT: Gail and Wilson 1978, Derby 1979, Krantz yellowish hairs on the lower bracts. It Kobetich, Field Supervisor, at the above 1981a, Neel and Barrows 1990). Due to flowers primarily in June and July. C. address (619/431–9440). the unique combination of edaphic and cinerea was described by Gray (1883) SUPPLEMENTARY INFORMATION: climatic factors, pebble plains contain based on specimens collected by S. B. Background numerous plant species that are either and W. F. Parish at Bear Valley in 1882. endemic to the San Bernardino C. cinerea is easily distinguished from Arabis johnstonii (Johnston’s rock- Mountains, or represent disjunct other species of Castilleja within its cress) is a herbaceous perennial in the occurrences of species more common range by its yellow spike and calyx mustard family (Brassicaceae), with elsewhere. lobes of equal length (Neel and Barrows leaves in a basal rosette from which the Arenaria ursina is a low-lying 1990). flowering stem arises. The leaves, which perennial herb in the pink family Castilleja cinerea is known from range from 1 to 2 centimeters (cm) (0.4 (Caryophyllaceae) with many stems fewer than 20 localities at the eastern to 0.8 inches (in.)) long and 1.5 to 3.5 from 6 to 15 cm (2 to 6 in.) long. It has end of the San Bernardino Mountains. millimeters (mm) (0.06 to 0.14 in.) wide, small, white, five-parted flowers with The range of this taxon extends from are narrowly spatulate to oblanceolate, petals 4 to 5 mm (0.16 to 0.2 in.) long Snow Valley and Fish Camp eastward to entire, and densely pubescent with fine and nerveless sepals 3 to 4 mm (0.12 to Onyx Peak, a distance of about 24 km dendritic (branched) hairs. This species 0.16 in.) in length with broad papery (15 mi), and from South Fork Meadows blooms from February to June. It has margins. This species blooms from May northward to Holcomb Valley, a purple flowers with four petals, 8 to 10 to August. A. ursina was first collected distance of about 19 km (12 mi) mm (0.32 to 0.4 in.) long. The fruit is a by S. B. Parish at Bear Valley in the San (Heckard 1980, Neel and Barrows 1990). hairless, narrow silique (a linear, many- Bernardino Mountains in 1882, and Although most populations occur on seeded pod), 3 to 5 cm (1.2 to 2 in.) long described by B. L. Robinson (1894). It pebble plains, C. cinerea is not strictly and 2 to 3 mm (0.08 to 0.12 in.) wide. was subsequently reduced to a variety of endemic to pebble plains. This species Arabis johnstonii was first collected in A. capillaris by A. Gray (1897). B. is also found near the Snow Valley Ski 1922 by Philip A. Munz and I. M. Maguire (1951) returned the plant to Area and along Sugarloaf Ridge in pine Johnston at Kenworthy, San Jacinto species status. A. ursina is readily forest habitats. C. cinerea is known to Mountains, Riverside County and distinguished from other Arenaria occur on CDFG land, and Forest Service described by Munz (1932). A. johnstonii species within its range by its sharp- land, including land that is leased for is readily distinguishable from all other pointed leaves, glandular-hairy stems, vacation homes and a ski area. Habitat Arabis species in its range by the size and sepals that are obtuse or rounded loss for this species began in the 1880’s and shape of its petals, siliques, and (Neel and Barrows 1990, Hickman with the construction of the Big Bear basal leaves (Berg and Krantz 1982). 1993). Lake reservoir in the San Bernardino Arabis johnstonii is found in Seven populations of Arenaria ursina Mountains in an area that likely chaparral and pine forest habitats from are known from pebble plain habitat in contained extensive meadows and 1,400 to 2,150 meters (m) (4,500 to 7,050 the vicinity of Big Bear and Baldwin pebble plains. Cattle trampling, mining, feet (ft)) in the southern San Jacinto Lakes, including Holcomb Valley, timber harvest, off-road vehicle use, Mountains. Two distinct population Sugarloaf Mountain, and Onyx Ridge fuelwood harvesting, campground and centers are known; one in the vicinity (Krantz 1981a, Neel and Barrows 1990). ski area development, and urbanization of Garner Valley and the other Some of these populations occur on have affected habitat for this species. approximately 6.5 kilometers (km) (4 land owned by the California Eriogonum kennedyi var. miles (mi)) east of Garner Valley along Department of Fish and Game (CDFG) austromontanum is a low, branched the Desert Divide. This species occurs and by private landowners. Most of the perennial 8 to 15 dm (31 to 59 in.) high, on U.S. Forest Service and private land. extant populations occur on Forest in the buckwheat family (Polygonaceae). Beginning around the late 1800’s, Service land and range from 1,800 to This species blooms from July through habitat loss and degradation began as a 2,900 m (6,000 to 9,500 ft) in elevation September, and forms loose leafy mats result of urbanization and cattle (Griggs 1979, Krantz 1981a, Neel and with oblanceolate leaves from 6 to 12 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39339 mm (0.2 to 0.5 in.) long. The type bluegrass), and P. secunda (scabrella) high, with light green, oblanceolate, specimen, collected in 1920 by R. D. (Malpais bluegrass). P. atropurpurea is subentire to sinuate-dentate leaves from Harwood, is from Bear Valley in the San distinguished from P. pratensis by its 5 to 12 cm (2 to 5 in.) long and 1 to 3 Bernardino Mountains. E. k. var. smaller stature, contracted panicle, and cm (0.4 to 1.2 in.) wide. The numerous austromontanum was originally lemmas that lack a tuft of cobwebby light yellow flowers are borne on described by Munz and Johnston (1924). hairs at the base (Pierce and Beauchamp leafless stalks, and bloom from May to Though later treated as a subspecies by 1979). P. atropurpurea and P. pratensis August. The outer phyllaries (outer Stokes (1936), this designation is not are distinguished from the other bracts beneath the inflorescence) are generally accepted (Munz and Reveal sympatric Poa species by creeping erect, lance-ovate, 5 to 7 mm (0.2 to 0.3 1968, Hickman 1993). This taxon is rhizomes (Munz 1974). in.) long; the inner phyllaries are lance- similar in appearance to E. k. var. Habitat for Poa atropurpurea is linear, 12 to 15 mm (0.5 to 0.6 in.) long. kennedyi (Kennedy’s buckwheat) (Munz known to exist on Forest Service, CDFG, This species has been previously treated and Reveal 1968). Although the two taxa municipal, and private land in the San as T. officinale var. lividum by Koch (in are very similar in morphology and Bernardino Mountains. Eleven known Hall 1907), as T. lapponicum by Handel- habitat characteristics, E. k. var. population centers of P. atropurpurea Mazzetti (1907), as T. ceratophorum by kennedyi can usually be distinguished currently are known to exist. These Sherff (1920), and T. ceratophorum var. by its smaller leaves, 2 to 4 mm (0.08 populations are distributed within a 13 bernardinum by Jepson (1925). T. to 0.16 in.) long, and achenes, 2 mm km (8 mi) radius of the town of californicum was described by Munz (0.08 in.) long (Reveal 1979). Another Sugarloaf (Krantz 1981b). Of these, two and Johnston (1925) based on specimens species that could potentially be localities are on Forest Service land collected by S.B. and W.F. Parish at confused with E. k. var. (Holcomb Valley and Wildhorse Bear Valley in 1882. Munz and Johnston austromontanum is E. wrightii ssp. Meadows), one is administered by (1924) emphasized the morphological subscaposum, which has a branched CDFG (North Baldwin), one is distinctiveness of T. californicum, in inflorescence and is found in yellow cooperatively owned by the Forest addition to its extremely disjunct pine forest (Neel and Barrows 1990). Service and a private youth camp distribution. They elevated this taxon to Eriogonum kennedyi var. (Hitchcock Ranch), and seven are species status primarily on the basis of austromontanum is known from six privately owned. Eight of the 11 known its small achenes and erect appressed populations in the San Bernardino sites are less than 2.5 hectares (ha) (6 phyllaries. T. californicum is readily Mountains, primarily in the Bear Valley acres (ac)) in size. Fewer than 40 ha (100 distinguished from other members of and Baldwin Lake areas (Krantz 1981a, ac) of habitat for this species are known this genus within its range by its lighter Neel and Barrows 1990). E. k. var. to remain in the San Bernardino green foliage, subentire leaves, erect austromontanum is known to occur on Mountains: about 9 ha (23 ac) are phyllaries, and paler yellow flowers Forest Service, CDFG, and private land. administered by the Forest Service, 2 ha (Krantz 1980). The construction of the Big Bear Lake (5 ac) by the CDFG, and 28 ha (69 ac) Taraxacum californicum occurs in reservoir in the 1880’s began habitat loss are privately owned (Krantz 1981b). In moist meadow habitats in the San for this species. This area in the San 1979, four known populations of P. Bernardino Mountains from 2,000 to Bernardino Mountains likely contained atropurpurea occurred in the Laguna 2,800 m (6,700 to 9,000 ft) in elevation, extensive meadows and pebble plains. Mountains. Sproul (1979) reported this often in association with Poa Since then, cattle trampling, mining, taxon to be ‘‘one of the rarest and most atropurpurea and other rare species. timber harvest, off-road vehicle use, threatened plants in the Laguna-Morena This species is known to occur on fuelwood harvesting, campground and area.’’ From 1981 until 1993, P. Forest Service, CDFG, municipal, and ski area development, and urbanization atropurpurea was considered to be private land. Fewer than 15 occurrences have continued to affect habitat of this extirpated from the Laguna Mountains of T. californicum currently are known, species. because no individuals could be found with population sizes ranging from 2 to Poa atropurpurea is a perennial in the despite repeated surveys for this taxon 300 individuals. About half of these grass family (Poaceae) with creeping (Curto 1992; Kirsten Winter, U.S. Forest occurrences are located within or rhizomes and erect stems from 3 to 4.5 Service, pers. comm. 1993). In spring of adjacent to developed areas such as Big dm (12 to 18 in.) high. The inflorescence 1993, two sites that currently support P. Bear City, Big Bear Lake Village, and is a dense spikelike panicle, with atropurpurea were located in the Sugarloaf in San Bernardino County. smooth, faintly nerved lemmas 2.5 to 3 Laguna Mountains within the Cleveland Habitat loss for this species began in the mm (0.1 to 0.12 in.) long, and glumes National Forest (Raymond Vizgirdas, 1880’s with the construction of the Big 1.5 to 2 mm (0.06 to 0.08 in.) long. This U.S. Fish and Wildlife Service biologist, Bear Lake reservoir in the San species flowers from early May to June pers. comm. 1993). Each of the 2 Bernardino Mountains in an area that or July. P. atropurpurea was described populations consists of about 50 likely contained extensive meadows and by Scribner (1898) based on specimens individuals (Winter, pers. comm. 1993). pebble plains. Since then grazing, cattle collected by S. B. Parish in 1894 at Bear Habitat loss for this species began in trampling, mining, timber harvest, off- Valley. P. atropurpurea is known to the 1880’s with the construction of the road vehicle use, fuelwood harvesting, occur in meadows of the Big Bear area Big Bear Lake reservoir in the San campground and ski area development, in the San Bernardino Mountains and in Bernardino Mountains in an area that and urbanization continue to affect the Laguna Mountains in San Diego likely contained extensive meadows and habitat for this species. County from about 1,800 to 2,300 m pebble plains. Since then, grazing, cattle Both Poa atropurpurea and (6,000 to 7,500 ft) in elevation (Sproul trampling, mining, timber harvest, off- Taraxacum californicum are found in 1979, Krantz 1981b, Curto 1992). road vehicle use, fuelwood harvesting, wet meadow habitats, primarily in the Several other native and at least one campground and ski area development, northeastern San Bernardino exotic species of Poa can be found and urbanization have continued to Mountains. These taxa are further within the range of P. atropurpurea, affect habitat for this species. restricted to the relatively open edges or including P. fendleriana (mutton grass), Taraxacum californicum is a thick- ecotonal (border) areas that offer less P. incurva, P. nevadensis (Nevada rooted perennial in the sunflower family competition from more mesic species bluegrass), P. pratensis (Kentucky (Asteraceae), 0.5 to 2 dm (0.2 to 0.7 ft) such as P. pratensis, Carex spp. or 39340 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Juncus spp. (Krantz 1981b). The and its intention to review the status of the February 21, 1990, Notice of Review perimeter of such meadows often the plant taxa named therein. Arenaria (55 FR 6184), Arenaria ursina was intergrades with sagebrush scrub ursina, Poa atropurpurea, and changed to a category 1 candidate dominated by Artemisia tridentata or Trichostema austromontanum ssp. species. The status of the other six taxa montane forest dominated by Pinus compactum were included in that remained unchanged. In the revision of jeffreyi. notice as endangered species, and the plant notice published on Trichostema austromontanum ssp. Arabis johnstonii, Castilleja cinerea, and September 30, 1993, (58 FR 51144), compactum is a compact, soft-villous Taraxacum californicum were listed as these categories remained unchanged. (with long, shaggy hairs) annual in the threatened. On June 16, 1976, the Section 4(b)(3)(B) of the Act requires mint family (Lamiaceae), approximately Service published a proposal in the 10 cm (4 in.) tall. This species flowers Federal Register (41 FR 24523) to the Secretary to make findings on in July and August. Its tiny blue, five- determine approximately 1,700 vascular petitions within 12 months of their lobed flowers are less than 2 mm (0.1 plant species to be endangered species receipt. Section 2(b)(1) of the 1982 in.) long, with two blue stamens. The pursuant to section 4 of the Act. The list amendments further requires that all fruit is a smooth, four-lobed nutlet. T. of 1,700 plant taxa was assembled on petitions pending on October 13, 1982, austromontanum ssp. compactum was the basis of comments and data received be treated as having been newly described by Lewis (1945) based on by the Smithsonian Institution and the submitted on that date. This was the specimens collected by M.L. Hilend at Service in response to House Document case for the seven taxa covered by this Hidden Lake (San Jacinto Mountains, No. 94–51 and the Federal Register rule, because the 1975 Smithsonian Riverside County). notice dated July 1, 1975. A. ursina, P. report had been accepted as a petition. Trichostema austromontanum ssp. atropurpurea, and T. a. ssp. compactum On October 13, 1983, the Service found compactum has historically been were included in the proposed rule. that the petitioned listing of these restricted to a single vernal pool known General comments received in species was warranted, but precluded as Hidden Lake at an elevation of about relation to the 1976 proposal were by other pending listing actions, in 2,400 m (8,000 ft) in the San Jacinto summarized in an April 26, 1978, accordance with section 4(b)(3)(B)(iii) of State Wilderness Area. Hidden Lake is Federal Register publication (43 FR the Act; notification of this finding was the only naturally occurring body of 17909). The Endangered Species Act published on January 20, 1984 (49 FR water in the San Jacinto Mountains. The Amendments of 1978 required that all 2485). Such a finding requires the entire known range for this species proposals over 2 years old be petition to be recycled annually, encompasses less than 0.8 ha (2 ac) withdrawn. A 1-year grace period was pursuant to section 4(b)(3)(C)(i) of the (Michael Hamilton, James Reserve given to those proposals already more Act. The finding was reviewed in Manager, pers. comm. 1993). The than 2 years old. In a December 10, October of 1983 through 1994. population size of T. austromontanum 1979, notice (44 FR 70796), the Service Publication of this proposed rule ssp. compactum declines during periods withdrew the outstanding portion of the constitutes the final 1-year petition of either above or below normal June 16, 1976, proposal, along with four finding for the seven taxa. precipitation because of its position other proposals that had expired. along the perimeter of the vernal pool On December 15, 1980, the Service Summary of Factors Affecting the habitat (Hamilton 1991). Between 1979 published a revised Notice of Review of Species and 1991, the population sizes of this plants in the Federal Register (45 FR species fluctuated from 11 to 10,000 82480). Arabis johnstonii, Poa Section 4 of the Endangered Species individuals (Hamilton 1991). Since the atropurpurea, Taraxacum californicum, Act (Act) and regulations (50 CFR Part creation of the Palm Springs tramway in and Trichostema austromontanum. ssp. 424) promulgated to implement the 1964, Hidden Lake has incurred a compactum were included in that listing provisions of the Act set forth the greater intensity of trampling damage. notice as category 1 candidate species procedures for adding species to the for Federal listing. Category 1 taxa are Federal list. A species may be Previous Federal Action those for which the Service has on file determined to be endangered or Federal government actions on the substantial information on biological threatened due to one or more of the seven taxa under consideration in this vulnerability and threats to support five factors described in section 4(a)(1) rule began as a result of section 12 of the preparation of listing proposals. of the Act. These factors and their Endangered Species Act of 1973, as Arenaria ursina, Castilleja cinerea, and application to Arabis johnstonii Munz amended (16 U.S.C. 1531 et seq.), which Eriogonum kennedyi var. (Johnston’s rock-cress), Arenaria ursina directed the Secretary of the austromontanum were included in the Robinson (Bear Valley sandwort), Smithsonian Institution to prepare a notice as category 2 candidate species. Castilleja cinerea Gray (ash-grey Indian report on those plants considered to be Category 2 taxa are those for which data paintbrush), Eriogonum kennedyi Porter threatened, endangered, or extinct in the in the Service’s possession indicate ex Watson var. austromontanum Munz United States. This report, designated as listing is possibly appropriate, but for & Johnston (southern mountain wild House Document No. 94–51, was which substantial data on biological buckwheat), Poa atropurpurea Scribner presented to Congress on January 9, vulnerability and threats are not (San Bernardino bluegrass), Taraxacum 1975. The Service published a notice in currently known or on file to support californicum Munz & Johnston the July 1, 1975, Federal Register (40 FR proposed rules. The status of these (California dandelion), and Trichostema 27823) of its acceptance of the report as seven taxa remained unchanged in the austromontanum Lewis ssp. a petition within the context of section Notice of Review published on compactum Lewis (Hidden Lake 4(c)(2) (now section 4(b)(3)) of the Act, September 27, 1985 (50 FR 39526). In bluecurls) are as follows (see Table 1): Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39341 TABLE 1.ÐSUMMARY OF THREATS Threats Develop- Species Trampling Exotic ORV activity ment Grazing Limited plants activity numbers Arabis johnstonii ...... X ...... X X X Arenaria ursina ...... X X X X Castilleja cinerea ...... X X X X X Eriogonum kennedyi var. austromontanum ...... X X X X Poa atropurpurea ...... X X X X X X Taraxacum californicum ...... X X X X X X Trichostema austromontanum ssp. compactum ...... X ...... X A. The present or threatened and approximately 12 ha (32 ac) occurs austromontanum populations have been destruction, modification, or on private land (Neel and Barrows affected by vehicle use to some extent curtailment of their habitat or range. 1990). (Krantz 1981a). Vehicular activity The seven taxa considered herein Recreational activities have affected directly impacts plants by crushing the currently are threatened by a variety of and continue to affect the habitat of plants and compacting and eroding the activities that result in habitat Arabis johnstonii, Arenaria ursina, soil. Although the erosion potential of modification, destruction, degradation, Castilleja cinerea, Eriogonum kennedyi the soil is not considered high, due to and fragmentation. These activities var. austromontanum, Trichostema the moderate slopes and rainfall, vehicle include urbanization, vehicular activity, austromontanum ssp. compactum, Poa use can lead to a breakdown in soil hydrologic alterations, and habitat atropurpurea, and Taraxacum structure (Neel and Barrows 1990). degradation by livestock. californicum. These activities include Vehicular activity also favors the Five of the seven taxa proposed in heavy, widespread hiking; off-road establishment of species more tolerant this rule (Poa atropurpurea, Taraxacum vehicle use; and development of of such disturbance, thereby altering the californicum, Arenaria ursina, Castilleja campgrounds, trails, and ski areas. The composition of the plant community cinerea, and Eriogonum kennedyi var. San Bernardino National Forest (SBNF) over time. austromontanum) are predominantly has the highest recreational use of any Extensive damage to the pebble plains found in pebble plains or meadow national forest (SBNF Draft Wildlife, near North Baldwin Lake occurred in habitats in the vicinity of Big Bear Lake Fisheries, Botany, and Threatened and March 1992. A construction vehicle in the eastern San Bernardino Endangered Species Program 5-year (front-end loader) from the adjacent San Mountains. Pebble plains soils contain plan, 1992). The Forest Service has Bernardino County landfill was driven significant amounts of clay, and are implemented a number of measures over this plant site while the soils were subject to extreme diurnal and seasonal (including fencing and signing) to saturated and highly vulnerable to variation in soil temperature and protect pebble plains from illegal off- disturbance (Neel and Chaney 1992). moisture conditions. These soils have road vehicle activity. Despite this Although the site was completely an extremely slow infiltration rate and, action, over 40 percent of the pebble fenced and posted as a rare plant site, thus, have a high runoff potential. plains habitat within Forest Service the driver trespassed onto the site, drove Prior to European settlement, pebble jurisdiction remains unprotected (Neel over the identifying signs and fences, plain and meadow habitats were much and Barrows 1990). Because of the and caused extensive damage to the more abundant in the Big Bear Valley. heavy recreational pressures on the habitat in an apparently intentional act Krantz (1987) estimated that over 1,000 SBNF, unauthorized off-road vehicle of vandalism (Tim Krantz, consultant, in ha (2,500 ac) of pebble plains and use remains a threat to these species. litt. 1993). Over 1,200 sq m (13,000 sq natural meadowlands were lost due to The Forest Service has limited resources ft) of pebble plain habitat was the construction of a dam and the available for preventing recreational moderately to severely damaged from resultant creation of Big Bear Lake in impacts to these habitats. Most of the this event. Although restoration was 1883. Subsequent urbanization of the privately owned pebble plains habitat required by the Forest Service, it was valley, land disturbance from livestock, receive no formal protection. A few, not entirely successful since the indirect and off-road vehicle use, destroyed or however, have voluntary non-binding effects, including alteration of surface damaged much of the remaining pebble landowner agreements to protect this hydrology and the subsequent invasion plain and meadow habitat (Krantz 1987, habitat. See Factor D for additional of exotic species, can have significant, Neel and Barrows 1990). These factors information. long-term effects on this delicate contributed to the decline of two Vehicles cause considerable damage ecosystem (Neel and Chaney 1992, meadow endemic species found only in to pebble plains habitat, and all pebble Krantz, in litt. 1993). These impacts are the Big Bear Valley area, Sidalcea plains habitat have some road not easily reversed because soil pedata (pedate checker-mallow) and development. The pebble plains are compaction could impede germination Thelypodium stenopetalum (slender- extremely susceptible to damage during and the exotic species could compete petaled mustard), which were federally spring thaw (Krantz 1981a). During the for nutrients for extensive periods of listed as endangered in 1984 (49 FR wet season, vehicles both directly time. 34497). Nine existing pebble plain destroy plants and create deep ruts that Incidents involving destruction or complexes have been identified (Neel change the water flow patterns over the degradation of pebble plains habitat by and Barrows 1990). Less than 220 ha pebble plains, potentially indirectly off-road vehicles and vehicular trespass (550 ac) of this highly restricted affecting greater numbers of plants (Neel have occurred in the past, and continue community remain; about 208 ha (514 and Barrows 1990). All known Arenaria to present a significant threat to all ac) is administered by the Forest Service ursina and Eriogonum kennedyi var. pebble plain sites (Maile Neel, SBNF, 39342 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules pers. comm. 1993, Krantz, in litt. 1993). federally listed endangered species, Bear Basin, wild burros forage in and For example, unpermitted grading Sidalcea pedata (pedate checker- around pebble plain and wet meadow destroyed a portion of the Castle Glen mallow) and Thelypodium habitats. Feral burros have been pebble plain in 1991 (Krantz, in litt. stenopetalum (slender-petaled mustard), observed at North Baldwin and on the 1993). Generally, when such an event and was similarly impacted by pebble plains of Gold Mountain and occurs, restoration is not undertaken urbanization and development of Sawmill Complex. Though levels of use since the persons responsible for the meadow habitat. For example, and degrees of impact from burro habitat destruction usually cannot be development of the Big Bear airport grazing and trampling have not been identified, and the Forest Service has facilities and the expansion of Bear systematically recorded, browsed plants insufficient staffing and funding to Mountain Ski Area destroyed two and hoof prints in wet clay soils were adequately restore all such disturbed populations of P. atropurpurea. A noted (Neel and Barrows 1990). areas. The cumulative effects of portion of another site was intentionally D. The inadequacy of existing unauthorized off-road vehicle use graded by the landowner in 1991, which regulatory mechanisms. Existing resulted in the almost complete also destroyed S. pedata habitat (CDFG regulatory mechanisms that could devegetation of a pebble plains site in 1991, Krantz, in litt. 1993). Since most provide some protection for these the SBNF near Sugarloaf (Neel and of the remaining populations of P. species include: (1) Listing under the Barrows 1990). Privately owned pebble atropurpurea are very small, their long- California Endangered Species Act, (2) plains habitat is unprotected at several term survival is questionable (Krantz, in provisions under the California Native locations, including the Big Bear Lake litt. 1993) (See Factor E). By 1979, half Plant Protection Act, (3) consideration and Sawmill population complexes. In of the four known Poa atropurpurea under the California Environmental addition, unregulated off-road vehicle populations in Laguna Meadow (San Quality Act (CEQA), (4) Forest Service activity degraded part of the Horseshoe Diego County) were damaged by cattle management policies, (5) land pebble plain (Sawmill complex) under trails, telephone line trenching, and soil acquisition and management by Federal, both Forest Service and private removal for the construction of an State, or local agencies, or by private ownership (Krantz, in litt. 1993). See earthen dam at Big Laguna Lake (Sproul groups and organizations, (6) State Factor D for additional information. 1979). The long-term alteration of wilderness area management policies, Chaparral and forest habitats in the surface and subsurface hydrology in (7) conservation provisions under the Garner Valley and Lake Hemet areas Laguna Meadow through dam Federal Clean Water Act, and (8) local containing Arabis johnstonii continue to construction and livestock presence laws and regulations. be destroyed or degraded by livestock resulted in soil disturbance. In addition, The Native Plant Protection Act trampling, and residential and several prolonged drought events in the (Chapter 10, Sec. 1908 et seq.) and the recreational developments, including early 1950’s, middle 1970’s, and late California Endangered Species Act groundwater drawdown by numerous 1980’s may have contributed to the (Chapter 1.5, Sec. 2080 et seq.) prohibit wells (Hamilton, pers. comm. 1993). decline of P. atropurpurea in this area the ‘‘take’’ of State-listed plants. State These activities contributed to the (Curto 1992). law does not, however, protect the decline of A. johnstonii in the region. B. Overutilization for commercial, plants from taking via habitat The Garner and Wellman grazing recreational, scientific, or educational modification or land use change by the allotments may affect several purposes. Overutilization is not known landowner. After the CDFG notifies a populations of A. johnstonii in Garner to be a threat for any of the taxa under landowner that a State-listed plant Valley. The clay substrate is especially consideration in this proposed rule. All grows on his or her property, State law vulnerable to trampling and disruption of the taxa proposed herein could requires only that the landowner notify by cattle during the saturated period in potentially suffer vandalism either the agency ‘‘at least 10 days in advance winter and early spring. Berg and Krantz directly, or indirectly due to habitat of changing the land use to allow (1982) noted evidence of cattle-induced destruction. An example of vandalism salvage of such plant’’ (Chapter 10, Sec. impacts to the substrate in the vicinity to pebble plains habitat is the incident 1913). of Quinn Flat, located in central Garner at North Baldwin Lake (see Factor A), Although State laws could provide a Valley, which contains a dense where a construction vehicle was driven measure of protection to the species, population of A. johnstonii. over the plant site even though the site these laws are not adequate to protect The decline of Poa atropurpurea and was completely fenced and posted as the species in all cases. Numerous Taraxacum californicum can be rare plant habitat. The plant habitat was activities do not fall under the purview attributed to a number of activities that extensively damaged (Tim Krantz, of the laws, such as certain projects destroyed and degraded their habitat, consultant, in litt. 1993). proposed by the Federal government including urbanization, livestock, off- C. Disease or predation. Disease is not and projects falling under State road vehicles, and hydrologic alteration. known to be a factor affecting any of the statutory exemptions. Where overriding For example, the creation of Big Bear taxa under consideration in this rule. social and economic considerations can Lake inundated hundreds of acres of However, consumption by livestock is a be demonstrated, these laws allow meadows that provided habitat for threat to Arenaria ursina, Castilleja project proposals to go forward, even in several sensitive taxa (Krantz 1981b). cinerea, Eriogonum kennedyi var. cases where the continued existence of Subsequent urbanization and austromontanum, Poa atropurpurea, the species may be jeopardized, or recreational developments at the lake and Taraxacum californicum (Krantz where adverse impacts are not mitigated eliminated or fragmented many 1981a, Krantz, in litt. 1993). Krantz to the point of insignificance. populations of P. atropurpurea and T. (1981b) noted that since animals grazed The taxa in this rule are included in californicum (Krantz 1980; California during the flowering period of P. the California Native Plant Society Natural Diversity Data Base 1992). atropurpurea, seed set and sexual inventory, but none have been listed by At least 70 percent of the remaining reproduction are reduced. T. the State. Hence, the California Poa atropurpurea habitat is californicum is vulnerable to Endangered Species Act currently unprotected. In several areas of the San consumption as its flower heads and provides no protection for these species. Bernardino Mountains, P. atropurpurea leaves are erect and readily removed by Since the Native Plant Protection Act is sympatric with two State and grazers (Krantz in litt. 1993). In the Big only applies to plant species listed by Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39343 the State, this act also provides no Adjustment Program (Bruce Daniels, regulations require that applicants protection to the seven species in this City of Big Bear Lake, in litt. 1992). obtain a permit for projects that involve rule. Although these seven taxa are not Unfortunately, plans to acquire Bluff the discharge of fill into waters of the listed by the State, the CEQA specifies Lake are no longer being pursued U.S. Projects that qualify for that a species not included on the State because the parcel is not available for authorization under Nationwide Permit list shall be considered to be sale (Neel, pers. comm. 1993). 26 (NWP 26) and will adversely impact endangered if the species can be shown Although the Forest Service does not 0.41 ha to 4.0 ha (1 to 10 ac) of waters to meet the criteria for State listing. permit activities that alter the hydrology above the headwater point or in isolated The CDFG recognizes that plants on of pebble plains or meadows, waters (including wetlands) can be Lists 1A, 1B, and 2 of the ‘‘Inventory of unauthorized off-road vehicle use permitted with minimal environmental Rare and Endangered Vascular Plants of continues to be a problem in many areas review by the Corps (33 CFR Part 330). California’’ (Smith and Berg 1988) and contributes to hydrologic Projects that qualify for authorization would normally qualify for State listing. modifications of these sensitive habitats. under NWP 26 that affect less than 0.41 All seven plant taxa in this rule are Even if most of the remaining pebble ha (1 ac) of isolated waters including included on California Native Plant plains and meadow habitats on the wetlands may proceed without notifying Society List 1B, i.e. plants rare, SBNF could be adequately protected the Corps if the project meets the terms threatened, or endangered in California from human disturbance, the amount of and conditions of the Nationwide and elsewhere (Smith and Berg 1988). habitat presently occupied by five of the Permit. Formal evaluation of the CDFG generally requests the inclusion seven taxa under consideration in this impacts of such a project is thus of such species in Environmental rule may not be sufficient to maintain precluded under the section 404 permit Impact Reports. However, several their long-term viability. process. An individual permit may be projects resulted in the loss of habitat The Holcomb Valley/North Baldwin required by the Corps if a project for these taxa, including the expansion Lake region, which contains known otherwise qualifying under NWP 26 of the Big Bear Airport, ski areas, and populations of five of the plant taxa in would have greater than minimal the development of the Moonridge Golf this proposed rule and significant adverse environmental impacts. The Course in sensitive meadow habitat examples of pebble plains habitat, was Corps is generally reluctant to withhold (California Natural Diversity Data Base designated as a Special Interest Area by authorization under NWP 26 unless the 1992). In addition, projects such as the the Forest Service in 1989 due to its existence of a federally proposed or Eagle Point development have already combination of unique botanical, listed threatened or endangered species been approved but do not provide zoological, and historical resources would be affected. Candidate species adequate mitigation for the sensitive (Lardner, pers. comm. 1993). This receive no special consideration under meadow plants (Neel, pers. comm. designation means that certain section 404, regardless of the type of 1993). Recently, the City of Big Bear activities, such as plant collecting, are permit deemed necessary. Thus, these graded habitat containing the federally restricted. At present, no specific two taxa currently receive insufficient listed endangered plant species Sidalcea management plan has been developed protection under section 404. pedata without providing appropriate for the area due to resources being Representatives from various Federal, mitigation measures (Mary Meyer, directed toward higher priority State, and local agencies, and CDFG, pers. comm. 1993). Furthermore, activities (Neel, pers. comm. 1993). The individuals from the private sector are these taxa face threats that are not easily ‘‘Barstow-to-Vegas’’ motorcycle race was developing a Coordinated Resource controlled by existing regulations, authorized by the Forest Service to pass Management Plan (CRMP) for the Big particularly unauthorized off-road through this area in 1992 and 1993 (Loe, Bear Valley region. The CRMP process vehicle activity. pers. comm. 1992, 1994). Although the is essentially a planning tool that With the exception of Trichostema race is confined to existing dirt roads operates on the local level to minimize austromontanum ssp. compactum, and no direct impacts to sensitive plants conflicts among various user groups, which only occurs on State land, all of were incurred (Neel, pers. comm. 1993), landowners, and governmental agencies the taxa under consideration in this rule this officially sanctioned large scale off- (CRMP Handbook 1990). The goal of are found on the SBNF and are road vehicle event took place in one of this process is to identify sensitive recognized by the Forest Service as the highly significant and vulnerable biological resources and to integrate ‘‘sensitive species’’ (SBNF 1989). The plant habitat areas of the forest (Krantz conservation efforts with those of public Forest Service has policies to protect 1981a). The potential exists for indirect and private entities. Although the sensitive plant taxa, including impacts such as foot trampling to occur Service supports these efforts, no attempting to establish these species in within the area of these plants. Since protection for any of the species suitable or historic habitat, encouraging the race is likely to become an annual described herein can be guaranteed. land acquisitions to protect sensitive event, it is a potential threat to sensitive This process is ongoing, and is not plant habitat, establishing refugia for plant habitat. legally binding for participants (John pebble plains species, and not Two of the species in this proposal, Hanlon, U.S. Fish and Wildlife Service, permitting activities that may alter the Poa atropurpurea and Taraxacum pers. comm. 1993). hydrology or meadow habitat for californicum could potentially be E. Other natural or manmade factors sensitive plants (SBNF 1989). These affected by projects requiring a permit affecting their continued existence. The guidelines, however, have not been under section 404 of the Clean Water seven taxa considered in this rule entirely effective. Bluff Lake, which is Act. Under section 404, the U.S. Army currently are threatened by a variety of privately owned and contains Corps of Engineers (Corps) regulates the other factors including: trampling by populations of Poa atropurpurea and discharge of fill material into waters of humans and livestock, competition with Taraxacum californicum, was identified the United States, which include other plant species, genetic absorption, as a potentially suitable mitigation bank navigable and other waters, their drought, and stochastic events. of wetland and wet meadow habitat for headwaters (streams with an average Activities related to fuelwood developments in the region. It was annual flow of less than 5 cubic feet per harvesting affect Arenaria ursina, identified as a high priority for the second), and wetlands (either isolated or Castilleja cinerea, Eriogonum kennedyi Forest Service’s Land Ownership adjacent to other waters). Section 404 var. austromontanum, Poa 39344 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules atropurpurea, and Taraxacum and flourish under a grazing regime. to genetic exchange with species of the californicum due to human trampling of They may reduce or eliminate native same genera. Poa atropurpurea has habitat and individual plants. plant species through competition for potentially been affected by genetic Trampling by recreational users resources. Introduced species are used absorption by the widespread non- adversely affects populations of at least as forage in San Bernardino and native P. pratensis (Pierce and three of the species (Castilleja cinerea, Cleveland National Forest grazing Beauchamp 1979, Sproul 1979, Curto Taraxacum californicum, and allotments. The native grass Poa 1992). Genetic absorption of P. Trichostema austromontanum ssp. atropurpurea cannot successfully atropurpurea by the exotic P. pratensis compactum). Individuals of compete with these populations of non- is a threat to the long-term viability of Trichostema showed reduced vigor native grass species (Winter 1991). this species. Taraxacum californicum under conditions of moderate to heavy Evidence of cattle-induced impacts in may also be threatened with genetic trampling by recreational users the vicinity of Quinn Flat, in central absorption by the introduced T. (Hamilton 1991). Trampling by Garner Valley, was observed where a officinale (Krantz, in litt. 1993). recreational users and livestock population of Arabis johnstonii exists Apparent hybrids between these two adversely affects T. californicum and (Berg and Krantz 1982). taxa were observed in areas where they favors the establishment of Taraxacum Sites supporting Arabis johnstonii, overlap in distribution (Krantz, pers. officinale, since the latter species Arenaria ursina, Castilleja cinerea, comm. 1993; Krantz 1980). Since T. responds to disturbance by producing Eriogonum kennedyi, Poa atropurpurea, californicum rarely occurs in the flower heads close to the soil surface and Taraxacum californicum were absence of T. officinale, the potential for (Krantz, in litt. 1993). At least one moderately to heavily degraded by cattle loss of genetic distinctiveness of the population of C. cinerea was affected by trampling in the past (e.g., Big Meadow, restricted species exists. Although both trampling by recreational users. This Wildhorse Meadow, Holcomb Valley, T. californicum populations are site, located across from Snow Valley Hitchcock Ranch, Bluff Lake, Garner protected, in part, by fencing of habitat Ski Area within a Forest Service lease Valley, and Laguna Meadow). Some at North Baldwin Lake (owned by tract, was fragmented by the areas continue to be grazed by cattle, CDFG) and Holcomb Valley (Forest construction of several large cabins, a horses, or burros. The Santa Ana grazing Service), this species is likely parking lot, and trails. In addition, allotment includes a population of C. threatened at all sites by genetic increased trampling and excessive cinerea on Sugarloaf Ridge (Melody absorption and competition with T. amounts of dust generated during the Lardner, SBNF, pers. comm. 1993). In officinale. Barstow-to-Vegas motorcycle race in the Cleveland National Forest, the major Drought conditions can also Holcomb Valley may impact threat to P. atropurpurea is grazing, as negatively affect pebble plains species. populations of five of the species in this all the Laguna Meadow populations are The severe drought in 1989 dramatically proposed rule: Arenaria ursina, C. located within grazing allotments. reduced the number of flowering cinerea, Eriogonum kennedyi var. Introduced species of grasses and individuals of pebble plains taxa and austromontanum, Poa atropurpurea, forbs have invaded many of California’s their associated insect pollinators (Freas and T. californicum (Neel, pers. comm. native plant communities. Such weedy and Murphy 1990). Since both Arenaria 1993). species can displace the native flora by ursina and Eriogonum kennedyi var. Due to its accessibility, the competing for nutrients, water, light, austromontanum are dependent on Trichostema austromontanum ssp. and space. Weedy plant invasions are insects for seed set, such environmental compactum population at Hidden Lake facilitated by disturbances such as conditions can adversely affect their is particularly vulnerable to trampling grazing, urban and residential reproductive success (O’Brien 1980, by recreational users. This site, managed developments, and various recreational Freas and Murphy 1990). Therefore, if by the California Department of Parks activities. Introduced weeds became numbers of these species continue to and Recreation, has been extremely established in many portions of the San decline and reproductive success is low, popular with recreational users since Bernardino, San Jacinto, and Laguna a series of drought events may pose a the development of the Palm Springs mountains reducing the amount of threat to the species because of now tramway in 1964. Several measures suitable habitat for Taraxacum limited distribution. were initiated by the State during the californicum, Poa atropurpurea, and Stochastic extinction threatens the past decade to protect the vernal pool other native plant species. For example, plants discussed herein, particularly ecosystem and the Trichostema the invasion of the exotic cheatgrass Poa atropurpurea, Taraxacum population, including removing (Bromus tectorum) is considered to be a californicum, and Trichostema references to the site from park threat to the Sawmill pebble plain austromontanum ssp. compactum, by interpretive materials. These measures, habitat, which supports populations of virtue of their small population size and however, have not prevented impacts Arenaria ursina, Castilleja cinerea, and limited distribution. Genetic viability is from trampling by hikers and horses. Eriogonum kennedyi var. reduced in small populations, making Fencing is not permitted because the austromontanum (Neel and Barrows them vulnerable to extinction by site is located within a State wilderness 1990). In most localities, T. californicum manmade or natural events. The area (Hamilton, pers. comm. 1992). was out-competed by the widespread, potential for local extirpation The presence of livestock typically non-native T. officinale, especially in precipitated by small population size changes the composition of native plant areas that were disturbed by grazing or can be exacerbated by environmental communities by reducing or eliminating human activities. Exotic grass and weed conditions such as the recent drought. those species that cannot withstand species could displace populations of For example, the few numbers of P. trampling, and enabling more resistant both P. atropurpurea and T. atropurpurea individuals at the two (usually exotic) species to increase in californicum through competition if remaining sites in the Laguna abundance. Livestock trampling and activities such as grazing, trampling, Mountains could be eliminated by competition from exotic species could and off-road vehicles that favor grazing (i.e., consumption, trampling, adversely affect all seven of these plant aggressive introduced species continue. soil disturbance), competition from taxa. Taxa that were not previously part Two species are threatened with the alien plants, alteration of the hydrologic of the native flora may be introduced loss of their genetic distinctiveness due regime, or other forms of disturbance, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39345 resulting in the extirpation of the extinction for these taxa is not against other Federally listed species (Curto 1992). Most known imminent. However, the signs and endangered species in the region populations of T. californicum, fences are often destroyed or removed, discussed in this rule have occurred including Hitchcock Ranch, Big hence most localities containing these when the location of plant populations Meadow (Forest Service), and Pan Hot taxa remain vulnerable to trespass by were divulged (Mary Meyer, CDFG, Springs (City of Big Bear), are so limited off-road vehicles and other recreational pers. comm. 1995). The publication of in numbers (R. Vizgirdas, U.S. Fish and users (Neel, pers. comm. 1993). Other the required maps and descriptions for Wildlife Service, pers. comm. 1992) that alternatives to this action were a critical habitat proposal would they may not survive in the future considered but not preferred because increase the degree of threat to these without recovery actions such as not listing these species at all would not taxa from possible take or vandalism. reducing competition from exotic plants provide adequate protection and would The listing of species as endangered or and restoring degraded habitat areas. not be in keeping with the purposes of threatened publicizes their rarity, and The Service has carefully assessed the the Act. Listing them as endangered can make them more susceptible to best scientific and commercial would not be appropriate as the Forest collection by researchers or curiosity information available regarding the past, Service has decreased the danger of seekers. Designation of critical habitat present, and future threats faced by extinction at the present time. Critical could further contribute to their decline these species in determining to propose habitat is not being proposed for these and increase enforcement problems. this rule. Based on this evaluation, the species at this time, as discussed below. In addition, designation of critical Service finds that Poa atropurpurea and habitat would not be beneficial for these Taraxacum californicum are in Critical Habitat species. All Federal agencies and local imminent danger of extinction Critical habitat is defined by section planning agencies involved were throughout all or a significant portion of 3 of the Act as: (i) the specific areas notified of the location and importance their ranges due to habitat destruction within the geographical area occupied of protecting habitat for these species. and alteration resulting from urban and by a species, at the time it is listed in For the populations under Federal recreational development; grazing; accordance with the Act, on which are jurisdiction, protection of the habitat of trampling by livestock and humans; found those physical or biological these species will be addressed through inadequacy of existing regulatory features (I) essential to the conservation the Act’s section 4 recovery process and mechanisms; genetic absorption; of the species and (II) that may require section 7 consultation process. Those stochastic extinction; and competition special management considerations or populations extant on privately owned from exotic plant species. Therefore, the protection and; (ii) specific areas lands would receive no benefit from preferred action is to list P. outside the geographical area occupied critical habitat designation. For the atropurpurea and T. californicum as by a species at the time it is listed, upon reasons discussed above, the Service endangered. Other alternatives to this a determination that such areas are finds that designation of critical habitat action were considered but not essential for the conservation of the for these taxa is not prudent at this time. preferred because not listing these species. ‘‘Conservation’’ means the use Available Conservation Measures species at all, or listing them as of all methods and procedures needed threatened would not provide adequate to bring the species to the point at Conservation measures provided to protection or would not be in keeping which listing under the Act is no longer species listed as endangered or with the purposes of the Act. necessary. threatened under the Act include For the reasons discussed above, the Section 4(a)(3) of the Act, as recognition, recovery actions, Service finds that Arabis johnstonii, amended, and implementing regulations requirements for Federal protection, and Arenaria ursina, Castilleja cinerea, (50 CFR 424.21) require that, to the prohibitions against certain practices. Eriogonum kennedyi var. maximum extent prudent and Recognition through listing encourages austromontanum, and Trichostema determinable, the Secretary designate and results in conservation actions by austromontanum ssp. compactum are critical habitat at the time a species is Federal, State, and private agencies, likely to become endangered within the determined to be endangered or groups, and individuals. The Act foreseeable future throughout all or a threatened. The Service finds that provides for possible land acquisition significant portion of their ranges if designation of critical habitat is not and cooperation with the States and identified threats are not reduced or prudent for these taxa at this time. requires that recovery plans be eliminated. Threats to these five taxa Service regulations (50 CFR developed for all listed species. The include habitat destruction and 424.12(a)(1)) state that designation of protection required of Federal agencies alteration from urban development and critical habitat is not prudent when one and the prohibitions against certain off-road vehicle activity; habitat or both of the following situations exist: activities involving listed plants are degradation and predation by livestock (1) The species is threatened by taking discussed, in part, below. and feral burros; trampling; and or other human activity, and Section 7(a) of the Act, as amended, stochastic events. The Service has identification of critical habitat can be requires Federal agencies to evaluate determined that threatened rather than expected to increase the degree of threat their actions with respect to any species endangered status is appropriate for A. to the species, or (2) such designation of that is proposed or listed as endangered johnstonii, A. ursina, C. cinerea, E. critical habitat would not be beneficial or threatened and with respect to its kennedyi var. austromontanum, and T. to the species. critical habitat, if any is being a. ssp. compactum primarily because As discussed in Factors A and B, designated. Regulations implementing the Forest Service has initiated some vandalism, primarily by through this interagency cooperation provision measures to protect these species. unauthorized trespassing in motorized of the Act are codified at 50 CFR part Management activities conducted by the vehicles, is a threat to these species. 402. Section 7(a)(4) requires Federal Forest Service (such as fencing, signing, One documented example of intentional agencies to confer with the Service on and monitoring various sensitive habitat habitat destruction has been cited above any action that is likely to jeopardize areas) have reduced the potential for in an area containing several of the the continued existence of a species habitat destruction by human activities species proposed herein for listing. Acts proposed for listing or result in to the degree that the danger of of vandalism and habitat destruction destruction or adverse modification of 39346 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules proposed critical habitat. If a species is The Act and 50 CFR 17.62 and 17.63 concerned governmental agencies, the listed subsequently, section 7(a)(2) for endangered plants and Part 17.72 for scientific community, industry, or any requires Federal agencies to ensure that threatened plants also provide for the other interested party concerning this activities they authorize, fund, or carry issuance of permits to carry out proposed rule are hereby solicited. out are not likely to jeopardize the otherwise prohibited activities Comments particularly are sought continued existence of the species or involving endangered and threatened concerning: destroy or adversely modify its critical plants under certain circumstances. (1) Biological, commercial, or other habitat. If a Federal action may affect a Such permits are available for scientific relevant data concerning any threat (or listed species or its critical habitat, the purposes and to enhance the lack thereof) to these taxa; responsible Federal agency must enter propagation or survival of the species. (2) The location of any additional into formal consultation with the For threatened plants, permits area also populations of these taxa and the Service. available for botanical or horticultural reasons why any habitat should or Federal agencies expected to have exhibition, educational purposes, or should not be determined to be critical involvement with section 7 regarding special purposes consistent with the habitat as provided by section 4 of the these species include the Forest Service purposes of the Act. It is anticipated Act; through its management activities, and that few permits would ever be sought (3) Additional information concerning the U.S. Army Corps of Engineers and or issued because these species are not the range, distribution, and population the Environmental Protection Agency, in cultivation or common in the wild. size of these taxa; and through their permit authority under It is the policy of the Service, (4) Current or planned activities in the section 404 of the Clean Water Act. The published in the Federal Register on subject area and their possible impacts Federal Housing Administration may be July 1, 1994 (59 FR 34272), to identify on these taxa. affected through funding of housing to the maximum extent practicable at The Service specifically solicits loans where these species or their the time a species is listed those opinion from independent specialists habitat occurs. The Federal Highway activities that would or would not Administration may be affected through constitute a violation of section 9 of the regarding pertinent scientific or potential funding of future highway Act. The intent of this policy is to commercial data and assumptions construction that could affect these increase public awareness of the effect relating to taxonomy, population species. The Federal Energy Regulatory of this listing on proposed and ongoing models, and supportive biological and Commission may be involved through activities within the species’ range. Six ecological information. its permitting authority for utility of the seven species in this rule are The final decision on this proposal projects that might potentially affect known to occur on lands managed by will take into consideration the these taxa. the Forest Service. Collection, damage comments and any additional The Act and its implementing or destruction of these species on Forest information received by the Service, and regulations set forth a series of general Service lands is prohibited although in such communications may lead to final prohibitions and exceptions that apply appropriate cases a Federal endangered regulations that differ from this to all endangered or threatened plants. species permit may be issued to allow proposal. All prohibitions of section 9(a)(2) of the collection. Removal, cutting, digging up, The Endangered Species Act provides Act, implemented by 50 CFR parts 17.61 damaging or destroying endangered for a public hearing on this proposal, if or 17.71 apply. These prohibitions, in plants on non-Federal lands would requested. Requests must be received part, make it illegal for any person constitute a violation of section 9 of the within 45 days of the date of publication subject to the jurisdiction of the United Act if conducted in knowing violation of the proposal in the Federal Register. States to import or export, transport in of California State law, including State Such requests must be made in writing interstate or foreign commerce in the criminal trespass law. The Service is not and addressed to the Field Supervisor of course of a commercial activity, sell or aware of any otherwise lawful activities the Carlsbad Field Office (see offer for sale any such species in being conducted or proposed by the ADDRESSES section). interstate or foreign commerce, or to public that will be affected by this National Environmental Policy Act remove and reduce to possession the listing and result in a violation of species from areas under Federal section 9. The Fish and Wildlife Service has jurisdiction. In addition, for plants Questions regarding activities that determined that Environmental listed as endangered, the Act prohibits may constitute violations of section 9 Assessments or Environmental Impact the malicious damage or destruction on should be directed to the Field Statements, as defined under the areas under Federal jurisdiction and the Supervisor of the Service’s Carlsbad authority of the National Environmental removal, cutting, digging up, or Field Office (see ADDRESSES section). Policy Act of 1969, need not be damaging or destroying of such plants Requests for copies of the regulations prepared in connection with regulations in knowing violation of any State law or concerning listed plants and general adopted pursuant to section 4(a) of the regulation, including State criminal inquiries regarding prohibitions and Act. A notice outlining the Service’s trespass law. Section 4(d) of the Act permits may be addressed to the U.S. reasons for this determination was allows for the provision of such Fish and Wildlife Service, Ecological published in the Federal Register on protection to threatened species through Services, Endangered Species Permits, October 25, 1983 (48 FR 49244). regulation. This protection may apply to 911 N.E. 11th Avenue, Portland, References Cited these species in the future if regulations Oregon, 97232–4181 (telephone 503/ are promulgated. Seeds from cultivated 231–2063; Facsimile 503/231–6243) A complete list of all references cited specimens of threatened plants are herein is available upon request from exempt from these prohibitions Public Comments Solicited the Carlsbad Field Office (see provided that their containers are The Service intends that any final ADDRESSES section). marked ‘‘Of Cultivated Origin.’’ Certain action resulting from this proposal will exceptions to the prohibitions apply to be as accurate and as effective as Author agents of the Service and State possible. Therefore, comments or The primary author of this proposed conservation agencies. suggestions from the public, other rule is Edna Rey Vizgirdas, Carlsbad Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39347 Field Office (see ADDRESSES section) or B of chapter I, title 50 of the Code of order under FLOWERING PLANTS, to telephone 619–431–9440. Federal Regulations, as set forth below: the List of Endangered and Threatened Plants, to read as follows: List of Subjects in 50 CFR Part 17 PART 17Ð[AMENDED] Endangered and threatened species, § 17.12 Endangered and threatened plants. Exports, Imports, Reporting and 1. The authority citation for Part 17 recordkeeping requirements, and continues to read as follows: * * * * * Transportation. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (h) * * * 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Proposed Regulation Promulgation 625, 100 Stat. 3500, unless otherwise noted. Accordingly, the Service hereby 2. Section 17.12(h) is amended by proposes to amend Part 17, subchapter adding the following, in alphabetical Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules FLOWERING PLANTS ******* Arabis johnstonii ...... Johnston's rock- U.S.A. (CA) ...... Brassicaceae ...... T ...... NA NA cress. ******* Arenaria ursina ...... Bear Valley sandwort U.S.A. (CA) ...... Caryophyllaceae ...... T ...... NA NA ******* Castilleja cinerea ...... Ash-grey Indian U.S.A. (CA) ...... Scrophulariaceae ..... T ...... NA NA paintbrush. ******* Eriogonum kennedyi southern mountain U.S.A. (CA) ...... Polygonaceae ...... T ...... NA NA var. wild buckwheat. austromontanum. ******* Poa atropurpurea ...... San Bernardino blue- U.S.A. (CA) ...... Poaceae ...... E ...... NA NA grass. ******* Taraxacum California dandelion . U.S.A. (CA) ...... Asteraceae ...... E ...... NA NA californicum. ******* Trichostema Hidden Lake U.S.A. (CA) ...... Lamiaceae ...... T ...... NA NA austromontanum bluecurls. ssp. compactum. ******* Dated: July 5, 1995. (CITES) regulates international trade in humane manner with minimal risk of Mollie H. Beattie, certain animal and plant species. injury or damage to health. Director, Fish and Wildlife Service. Exports of animals and plants listed on The purpose of this proposed [FR Doc. 95–18975 Filed 8–1–95; 8:45 am] Appendix II of CITES require an export rulemaking is to announce proposed BILLING CODE 4310±55±P permit from the country of origin. As a findings by the Scientific and general rule, export permits are only Management Authorities of the United issued after two conditions are met. States on the proposed export of river 50 CFR Part 23 First, the exporting country’s CITES otters harvested in the State of Scientific Authority must advise the Tennessee, and to propose the addition RIN 1018±AC70 permit-issuing CITES Management of Tennessee to the list of States and Indian Nations for which the export of Export of River Otters Taken in Authority that such exports will not be detrimental to the survival of the river otters is approved. The Service Tennessee in the 1995±96 and intends to apply these findings to Subsequent Seasons species. This advice is known as a ‘‘no- detriment’’ finding. Second, the harvests in Tennessee during the 1995– AGENCY: Fish and Wildlife Service, Management Authority must make a 96 season and subsequent seasons, Interior. determination that the animals or plants subject to the conditions applying to approved States. ACTION: Proposed rule. were not obtained in violation of laws for their protection. If live specimens DATES: The Service will consider SUMMARY: The Convention on are being exported, the Management comments received on or before October International Trade in Endangered Authority must also determine that the 2, 1995 in making its final Species of Wild Fauna and Flora specimens are being shipped in a determination on this proposal. 39348 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules ADDRESSES: Please send correspondence species that, although not necessarily The river otter is managed by the concerning this proposed rule to the now threatened with extinction, may wildlife agencies of individual States or Office of Scientific Authority; Mail become so unless trade in them is Indian Nations. Those States and Indian Stop: 725 Arlington Square; U.S. Fish strictly controlled. It also lists species Nations from which the Service has and Wildlife Service; 1849 C St. NW, that must be subject to regulation in approved the export of river otters in Washington, DC 20240 (FAX number order that trade in other currently or 1983–84 and subsequent seasons were 703–358–2276). Express and messenger- potentially threatened species may be identified in the January 5, 1984, delivered mail should be addressed to brought under effective control (e.g., Federal Register (49 FR 590) and listed the Office of Scientific Authority; Room because of difficulty in distinguishing in 50 CFR 23.53. Each export-approved 750, 4401 North Fairfax Drive; specimens of currently or potentially State or Indian Nation in which this Arlington, Virginia, 22203. Comments threatened species from those of other animal is harvested has a program to and materials received will be available species). Appendix III includes species regulate the harvest. Based on for public inspection, by appointment, that any Party identifies as being subject information received from the State of from 8 a.m. to 4 p.m., Monday through to regulation within its jurisdiction for Tennessee, the Service proposes adding Friday, at the Arlington Square purposes of preventing or restricting that State to the list of States and Indian Building, 4401 North Fairfax Drive, exploitation, and for which it needs the Nations approved for export of river Arlington, VA 22203. cooperation of other Parties to control otters. FOR FURTHER INFORMATION CONTACT: trade. Given that the river otter is listed on In the January 5, 1984, Federal Scientific Authority Finding—Dr. Appendix II of CITES primarily because Register (49 FR 590), the Service Marshall A. Howe, Office of Scientific of similarity of appearance to other announced the results of a review of Authority; phone 703–358–1708; FAX listed species in need of rigorous trade listed species at the Fourth Conference 703–358–2276. controls, an important component of the of the CITES Parties that certain species Management Authority Findings/State no-detriment finding by the Scientific of furbearing mammals, including the Export Programs—Ms. Carol Carson, Authority is consideration of the impact river otter, should be regarded as listed Office of Management Authority; Mail of river otter trade on the status of these in Appendix II of CITES because of Stop: Arlington Square, Room 420c; other species. The Scientific Authority similarity in appearance to other listed U.S. Fish and Wildlife Service; has determined that the dual practice of species or geographically separate Washington, DC 20240 (phone 703– (1) issuing export permits naming the populations. The January 5, 1984, 358–2095; FAX 703–358–2280). species being traded and (2) marking document described how the Service, as pelts with tags bearing the name of the SUPPLEMENTARY INFORMATION: On Scientific Authority, planned to monitor January 5, 1984 (49 FR 590), the Service species, country and State of origin, year annually the population and trade status of harvest, and a unique serial number, published a rule granting export of each of these species and to institute is sufficient to eliminate potential approval for river otters and certain restrictive export controls if prevailing problems of confusion with, and other CITES-listed species of furbearing export levels appeared to be therefore risk to, other listed species mammals from specified States and contributing to a trend of long-term (see Management Authority Findings for Indian Nations and Tribes for the 1983– population decline. The document also tag specifications). 84 and subsequent harvest seasons. In described how the Service, as succeeding years, approval for export of Management Authority, would require In addition to considering the effect of one or more species of furbearers has States to assure that specimens entering trade on species or populations other been granted to other States and Indian trade are marked with approved, serially than those being exported from the Nations, Tribes, or Reservations through unique tags as evidence that they had United States, the Service will regularly the rulemaking process. These been legally acquired. examine information provided by the approvals were and continue to be State of Tennessee to determine if there subject to certain population monitoring Scientific Authority Findings is a population decline in river otters and export requirements. The purpose Article IV of CITES requires that, that might warrant more restrictive of this notice is to announce proposed before a permit to export a specimen of export controls. This monitoring and findings by the Scientific and a species included in Appendix II can assessment will follow the same Management Authorities of the United be granted by the Management procedures adopted for other States and States on the proposed export of river Authority of an exporting country, the Indian Nations. As part of this otters, Lontra (=Lutra) canadensis, Scientific Authority must advise ‘‘that monitoring program, the States and harvested in the State of Tennessee, and such export will not be detrimental to Indian Nations that have been approved to add Tennessee to the list of States the survival of that species.’’ The for export of river otters are requested and Indian Nations for which the export Scientific Authority for the United annually to certify that the best of river otters is approved. The Service States must develop such advice, known available biological information derived proposes these findings for the export of as a no-detriment finding, for the export from professionally accepted wildlife specimens harvested in the State of of Appendix II animals in accordance management practices indicates that Tennessee during the 1995–96 season with Section 8A(c)(2) of the Endangered harvest of river otters during the and subsequent seasons, subject to the Species Act of 1973, as amended (the forthcoming season will not be conditions applying to other approved Act). The Act states that the Secretary of detrimental to the survival of the entities. the Interior is required to base export species. CITES regulates import, export, re- determinations and advice ‘‘upon the Whenever available information from export, and introduction from the sea of best available biological information the States or other sources indicates a certain animal and plant species. derived from professionally accepted possible problem in a particular State, Species for which the trade is controlled wildlife management practices; but is the Scientific Authority will conduct a are included in three appendices. not required to make, or require any comprehensive review of accumulated Appendix I includes species threatened State to make, estimates of population information to determine whether with extinction that are or may be size in making such determinations or conclusions about the treatment of these affected by trade. Appendix II includes giving such advice.’’ species as listed for similarity of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39349 appearance need to be adjusted in the contravention of laws for the protection proposed rule will take into account State. of the involved species. The Service, comments received and any additional Natural repopulation of river otters therefore, must be satisfied that the river information received. Such has been occurring in western otter pelts, hides, or products being consideration may lead to findings Tennessee since the 1950’s. This exported were not obtained in violation different from those presented in this increase is consistent with a widespread of State, Indian Nation, Tribal, proposal. pattern in the United States and is Reservation, or Federal law in order to Effects of the Rule and Required believed, in part, to reflect colonization allow export. Evidence of legal taking Determinations of suitable habitat created recently by a for Alaskan gray wolf, Alaskan brown or rapidly expanding beaver population. grizzly bear, American alligator, bobcat, The Department has previously (48 Tennessee has supported a study of the lynx, and river otter is provided by State FR 37494) determined that the export of demography, food habits, and habitat or tribal tagging programs. The Service river otters of various States and Indian use of river otters in the State. The annually contracts for the manufacture Tribes or Nations, taken in the 1983–84 results of these studies show that age and delivery of special CITES animal- and subsequent harvest seasons, was not and sex ratios of river otters in western hide tags for export-qualified States and a major Federal action that would Tennessee are similar to those of Indian Nations, Tribes, and significantly affect the quality of the healthy river otter populations Reservations. The Service has adopted human environment under the National elsewhere, including populations the following export requirements for Environmental Policy Act (42 U.S.C. experiencing harvest. the 1983–84 and subsequent seasons: 4321–4347). This action is covered The Tennessee Wildlife Resources (1) Current State or Indian Nation, under an existing Departmental Agency has conducted experimental Tribe, or Reservation hunting, trapping, categorical exclusion for amendments to river otter trapping seasons annually and tagging regulations and sample tags approved actions when such changes since 1989 in the western part of the must be on file with the Office of have no potential for causing substantial State. Total annual harvest has ranged Management Authority; environmental impact. from 71 (1990–91) to 176 (1992–93). In (2) The tags must be durable and This rule was not subject to Office of the central and eastern parts of permanently locking and must show Management and Budget review under Tennessee, this species is still classified U.S.-CITES logo, State or Indian Nation, Executive Order 12866 and will not under State law as threatened and is not Tribe, or Reservation of origin, year of have significant economic effects on a legally harvested at this time. The take, species, and a unique serial substantial number of small entities as available biological and harvest number; outlined under the Regulatory information leads the Service to (3) The tag must be attached to all Flexibility Act (5 U.S.C. 601 et seq.). conclude that export of river otters pelts taken within a minimum time after Because the existing rule treats exports legally harvested in Tennessee will not take, as specified by the State and on a State-by-State and Indian Nation- be detrimental to the survival of the Indian regulation, and such time should by-Indian Nation basis and proposes to species. be as short as possible to minimize approve export in accordance with a All otters taken by trappers are movement of untagged pelts; State or Indian Nation, Tribe, or required to be marked with special tags (4) The tag must be permanently Reservation management program, the approved by the Wildlife Resources attached as authorized and prescribed rule will have little effect on small Agency. The State also conducts a by the State or Indian regulation; entities in and of itself. The proposed questionnaire survey of licensed (5) Takers/dealers who are licensed/ rule would allow continued trappers annually. These surveys registered by States or Indian Nations, international trade in river otters from identify the size and geographic Tribes, or Reservations must account for the United States in accordance with derivation of the river otter harvest and tags received and must return unused CITES, and it does not contain any will provide insight into State river otter tags to the State or Indian Nation, Tribe, Federalism impacts as described in population trends over time. Analysis of or Reservation within a specified time Executive Order 12612. these data should detect population after the taking season closes; and, This proposed rule does not contain declines symptomatic of either an (6) Fully manufactured fur (or hide) information collection requirements that unhealthy population or overharvest in products may be exported from the require approval by the Office of time to take corrective action through United States only when the CITES Management and Budget under 44 regulatory adjustments or other means. export tags, removed from the hides U.S.C. 3501 et seq. Based upon (a) the information used to make the product being This proposal is issued under presented by the Tennessee Wildlife exported, are surrendered to the Service authority of the Endangered Species Act Resources Agency, including river otter prior to export. of 1973 as amended (16 U.S.C. 1531 et harvest regulations, and (b) the seq.). The authors are Marshall A. determination that permitting and Proposed Export Decision Howe, Office of Scientific Authority, tagging requirements will eliminate the The Service proposes to approve and Carol Carson, Office of Management possibility that other similar-appearing, exports of Tennessee river otters Authority. CITES-listed species in trade will be harvested during the 1995–96 or misrepresented as river otters, the subsequent harvest seasons on the List of Subjects in 50 CFR Part 23 Service proposes to issue Scientific grounds that both Scientific Authority Endangered and threatened wildlife, Authority advice in favor of export of and Management Authority criteria have Exports, Imports, Transportation, river otters harvested in 1995–96 and been satisfied. Treaties. subsequent seasons from Tennessee. Comments Solicited Management Authority Findings PART 23ÐENDANGERED SPECIES The Service requests comments on CONVENTION Exports of Appendix II species are these proposed findings and the allowed under CITES only if the proposed rulemaking adding Tennessee Accordingly, the Service proposes to Management Authority is satisfied that to the list of States approved for export amend Part 23 of Title 50, Code of the specimens were not obtained in of river otters. The final decision on this Federal Regulations, as set forth below: 39350 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 1. The authority citation for Part 23 Species Act of 1973, as amended (16 U.S.C. § 23.53 River otter (Lontra canadensis). 1531 et seq.). continues to read as follows: States for which the export of the Authority: Convention on International 2. In Subpart F—Export of Certain indicated season’s harvest may be Trade in Endangered Species of Wild Fauna Species, revise § 23.53 to read as permitted under § 23.15 of this part: and Flora, 27 U.S.C. 1087; and Endangered follows: (a) States and Harvest Seasons Approved for Export of River Otter From the United States. 1983±84 1995±96 1977±78 1 11978±79 2 1979±80 3 1980±81 1981±82 1982±83 and subse- and subse- quent quent Alabama ...... Q + + + + + + + Alaska ...... + + + + + + + + Arkansas ...... Q + + + + + + + Connecticut ...... Q + + + + + + + Delaware ...... Q + + + + + + + Florida ...... Q + + + + + + + Georgia ...... Q + + + + + + + Louisiana ...... Q + + + + + + + Maine ...... Q + + + + + + + Maryland ...... Q + + + + + + + Massachusetts ...... Q + + + + + + + Michigan ...... Q + + + + + + + Minnesota ...... Q + + + + + + + Mississippi ...... Q + + + + + + + Montana ...... Q + + + + + + + New Hampshire ...... Q + + + + + + + New Jersey ...... ¥ ¥ ¥ ¥ ¥ + + + New York ...... Q + + + + + + + North Carolina ...... Q + + + + + + + Oregon ...... Q + + + + + + + Penobscot Nation ...... ¥ ¥ ¥ ¥ ¥ ¥ + + Rhode Island ...... Q + ¥ ¥ ¥ ¥ ¥ ¥ South Carolina ...... Q + + + + + + + Tennessee ...... ¥ ¥ ¥ ¥ ¥ ¥ ¥ +* Vermont ...... Q + + + + + + + Virginia ...... Q + + + + + + + Washington ...... Q + + + + + + + Wisconsin ...... Q + + + + + + + 1 For further information see 42 FR 43729, Aug. 30, 1977; 43 FR 11081, Mar. 16, 1978; and 43 FR 29469, July 7, 1978. 2 For further information see 43 FR 11096, Mar. 16, 1978; 43 FR 13913, Apr. 3, 1978; 43 FR 15097, Apr. 10, 1978; 43 FR 29469, July 7, 1978; 43 FR 35013, Aug. 7, 1978; 43 FR 36293, Aug. 16, 1978; and 43 FR 39305, Sept. 1, 1978. 3 For further information see 44 FR 25383, Apr. 30, 1979; 44 FR 31583, May 31, 1979; 44 FR 40842, July 12, 1979; 44 FR 52289, Sept. 7, 1979; and 44 FR 55540, Sept. 26, 1979. Q Export approved with quota. + Export approved. ¥ Export not approved. * Export for 1994±95 approved administratively. (b) Condition on export: Each pelt fully manufactured fur products may be the tag, so that the locking socket and must be clearly identified as to species, exported from the U.S. when the State locking tip remain joined. State of origin and season of taking by export tags, removed from the pelts used Dated: July 14, 1995. a permanently attached, serially to manufacture the product being Robert P. Davison, numbered tag of a type approved by the exported, are surrendered to the Service Acting Assistant Secretary for Fish and Service and attached under conditions before export. Such tags must be Wildlife and Parks. established by the Service. Exception to removed by cutting the tag straps on the [FR Doc. 95–18970 Filed 8–1–95; 8:45 am] tagging requirement: finished furs and female side next to the locking socket of BILLING CODE 4310±55±P 39351 Notices Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 This section of the FEDERAL REGISTER D.C. 20250–1060 or telephone (202) applications forms to permit importers, contains documents other than rules or 720–6713. manufacturers, and exporters of dairy proposed rules that are applicable to the articles subject to TRQ licensing SUPPLEMENTARY INFORMATION: public. Notices of hearings and investigations, requirements to apply for licenses to committee meetings, agency decisions and Background import in-quota quantities of such dairy rulings, delegations of authority, filing of petitions and applications and agency Import Regulation 1, Revision 7 articles for 1996. The Department statements of organization and functions are governs the administration of the import intends to request expedited clearance examples of documents appearing in this licensing system for certain dairy from the Office of Management and section. articles which were subject to quotas Budget on the proposed revisions in proclaimed under section 22 of the order to implement the application Agricultural Adjustment Act of 1933, as process in the most efficient and timely DEPARTMENT OF AGRICULTURE amended (Section 22). As a result of manner. entry into force of the Uruguay Round Supporting Statement Foreign Agricultural Service Trade Agreements, Section 22 quotas on dairy articles were replaced by tariff-rate A. Justification Dairy Tariff-Rate Import Quota quotas (TRQs) on January 1, 1995 and Licensing 1. Circumstances requiring the proclaimed in the Harmonized Tariff collection of the information. Dairy AGENCY: Foreign Agricultural Service, Schedule of the United States (HTS). products which were subject to absolute USDA. TRQs provide for the entry of a quotas under section 22 of the specified quantity of an article (in-quota ACTION: Notice and request for Agricultural Adjustment Act of 1933, as comments. quantity) at a reduced tariff rate during amended (7 U.S.C. 624) were converted a given period. There is no limitation on to tariff-rate quotas on January 1, 1995 SUMMARY: In accordance with the the total amount of an article which may under Presidential Proclamation 6763 of Paperwork Reduction Act of 1995, this be entered, but quantities entered in December 23, 1994 which implemented notice announces the Department’s excess of an in-quota quantity are trade agreements resulting from the intention to revise a currently approved subject to a higher tariff rate. For certain Uruguay Round of Multilateral Trade information collection and currently dairy articles subject to TRQs, imports Negotiations. That Proclamation also approved license application forms for may only be entered at the in-quota implemented the President’s authority the purpose of permitting importers, tariff rate by a person or firm to whom to allocate the in-quota quantities of manufacturers, and exporters of certain the Department has issued an import dairy products subject to tariff-rate dairy articles subject to tariff-rate import license. Import licenses are valid for a quotas among supplying countries quota licensing requirements to apply 12-month period from January 1 through proclaimed in the Harmonized Tariff for such licenses in 1996. December 31 of each year. Schedule (HTS) as a result of the entry For 1995, existing license forms were into force of the Uruguay Round DATES: Comments should be submitted issued to import that quantity of imports on or before August 14, 1995. Agreements. Congress approved the which had been subject to absolute Uruguay Round Agreements under ADDRESSES: Comments should be sent to quotas and licensing requirement when section 101(a) of the Uruguay Round the Dairy Import Quota Manager, Import Section 22 quotas were in effect. The Agreements Act (P.L. 103–465, 108 Stat. Policies and Programs Division, AG issuance of licenses for the Uruguay 4809). BOX 1021, Foreign Agricultural Service, Round in-quota quantity increases for The importation of most cheese and U.S. Department of Agriculture, certain dairy articles, which became cheese products and certain non-cheese Washington, D.C. 20250–1021. All effective on January 1, 1995, was dairy articles must be accompanied by comments received will be available for effected through an interim rule a license issued by the Department to public inspection in room 5541 South published in the Federal Register on enter at the TRQ in-quota tariff rate. The Building at the above address between January 6, 1995, which amended Import import licensing system is administered the hours of 8 a.m. and 4 p.m., Monday Regulation 1, Revision 7 for this by the Department in accordance with through Friday, except holidays. All purpose. A subsequent Federal Register Import Regulation 1, Revision 7 (7 CFR responses to this notice will be notice, published on May 2, 1995, part 6). The Department expects to summarized and included in the request further amended Import Regulations 1, publish a revised Import Regulation, as submitted to the Office of Management Revision 7, to implement the issuance of envisioned in the Advanced Notice of and Budget on this matter. licenses for Uruguay Round in-quota Proposed Rulemaking (59 FR 28495), in FOR FURTHER INFORMATION CONTACT: quantity increases for cheese imported the near future for the 1996 quota year. Richard P. Warsack, Dairy Import Quota from certain countries which became The Department intends to revise the Manager, room 5541 South Building, effective on July 1, 1995. A revision to currently approved information U.S. Department of Agriculture, the approved information collection and collection and currently approved Washington, D.C. 20250–1021 or license application forms was approved application forms for 1996 for the telephone (202) 720–2916. Copies of the by the Office of Management and purpose of issuing revised and information collection may be obtained Budget for the Uruguay Round in-quota improved license application forms from Pamela Hopkins, Information quantity license application forms for permitting importers, manufacturers, Collection Coordinator, room 4957 1995. The Department intends to revise and exporters of dairy products to apply South Building, U.S. Department of the currently approved information for import licenses for the 1996 quota Agriculture, AG BOX 1060, Washington, collection and currently approved year. 39352 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 2. Purpose of information to be used. considered redundant based on its in the supporting statement for the The basic information regarding the availability in the computer data bank. currently approved collection of purpose of the information to be used in 3. Use of improved information information is applicable. the collection, provided in the current technology. The information provided 8. Consultations with persons outside supporting statement is applicable with in the supporting statement for the the agency. The information provided in the following changes. currently approved collection of the supporting statement for the information is applicable. In recent currently approved collection of In addition to information requested years, a system was developed under information is applicable. in the application forms in 1995, the which basic applications could be read 9. Confidentiality provided to revised forms require that applicants for by an optical scanner. To further respondents. The information provided all lottery licenses rank order their increase the ease of processing, and to in the supporting statement for the requests in order of preference (most reflect the proposed revised forms have currently approved collection of desirable to least desirable) as was been simplified and redesigned into an information is applicable. required of applicants for Uruguay enhanced machine-readable format. The 10. Questions of a sensitive nature. Round in-quota quantities of non-cheese simplified forms require applicants to Not applicable. dairy articles in the 1995 quota year. fill in a circle opposite the articles that 11. Annual cost to Government and The purpose of applicants rank ordering they are applying for a license to import. respondents. The information provided their requests for licenses is to establish The importer’s control number will also in the supporting statement for the a rank order lottery system which is be entered by filing in circles opposite currently approved collection of intended to provide a better alignment the appropriate digit numbers. information is applicable, but the between importers’ requirements and 4. Efforts to identify duplication. Not estimated costs for 1994 need to be licenses obtained. In addition, the applicable. updated. For 1995, the salaries and revised forms will add EC Uruguay 5. Methods to minimize burdens of other administrative costs are estimated Round in-quota quantities of cheese to small business entities. The information to be $322,681. The fee for 1995 was $89 the license application form for provided in the supporting statement for for each import license issued. The cost designated licenses. This is being done the currently approved collection of to the respondents is included in item to implement the U.S. Uruguay Round information is applicable. 12 below. commitment to the EC permitting the EC 6. Consequences if information 12. Estimate of burden. The to designate importers for such cheese. collection were less frequent. The information provided in the supporting Information which will no longer be information provided in the supporting statement for the currently approved required on a revised form is that statement for the currently approved collection of information is applicable applicants for historical licenses list collection of information is applicable. for licenses issued in 1995. The estimate each historical license allocated to that 7. Inconsistency with guidelines in 5 of the burden for 1996 is indicated in person or firm. This information is now CFR 1320.6. The information provided the following table. No. of No. of re- Total Hours Form No. re- sponses annual per re- Total sponses per ap- re- sponse plicant sponses 922 ...... 500 1 500 0.025 125 923 ...... 600 1 600 0.050 300 923A ...... 923B * ...... Total ...... 1,100 ...... 1,100 ...... 425 *923, 923A and 923B constitute one form. 13. Reasons for the change in burden. hours used in preparing responses from 14. Tabulation, analysis and There is a reduction of 429 hours in the 920 hours to 425 hours. There is no data publication plans. Not applicable. estimate of the burden of information with respect to the annual cost incurred Signed at Washington, D.C., July 28, 1995. collection between 1995 and 1996 by each respondent (person or firm) Timothy J. Galvin, which is based mainly on the based on the amount of time used in Acting Administrator, Foreign Agricultural elimination of forms 924 and 924A filling out the application forms and the Service and Vice President, Commodity Credit which were needed to conduct the average hourly salary of such Corporation. separate application procedures under respondents. It is extremely difficult to [FR Doc. 95–19027 Filed 8–1–95; 8:45 am] which licenses for the Uruguay Round calculate this cost because the executive BILLING CODE 3410±10±M in-quota increases where issued for or administrative level of the individual January and July of that year. The responsible for filling out the forms elimination of these forms is estimated tends to vary depending on the size and to reduce the total number of estimated location of the person or firm, the size DEPARTMENT OF COMMERCE responses for all types of licenses from of the license portfolio, and experience Agency Forms Under Review by the 1,560 to 1,100. The estimated burden is of the person or firm in importing Office of Management and Budget also being reduced based on the use of licensed dairy products. Based on our the revised and improved application research, the estimated total annual cost DOC has submitted to the Office of forms. The result is an estimated associated with the estimated total Management and Budget for clearance reduction in the total annual average burden of 425 hours is $12,750. the following proposals for collection of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39353 information under the provisions of the separate but overlapping statutes. The Frequency: On occasion. Paperwork Reduction Act (44 U.S.C. information collected in support of Respondent’s Obligation: Required to Chapter 35). license applications for crude oil is used obtain or retain a benefit. Agency: Bureau of Export by licensing officers to determine the OMB Desk Officer: Don Arbuckle, Administration (BXA). exporter’s compliance with these (202) 395–7340. Title: Application for Export License. statutes. Agency: National Oceanic and Agency Form Number: BXA 622P. Affected Public: Businesses or other Atmospheric Administration (NOAA). OMB Approval Number: 0694–0005. for–profit institutions. Title: Small–Craft Facility Type of Request: Extension of the Frequency: On occasion. Questionnaire. expiration date of a currently approved Respondent’s Obligation: Required to Agency Form Number: NOAA 77–1. collection. obtain or retain a benefit. OMB Approval Number: 0648–0021. Burden: 11,763 hours. OMB Desk Officer: Don Arbuckle, Burden: 266 hours. Number of Respondents: 28,211. (202) 395–7340. Number of Respondents: 2,000. Avg Hours Per Response: Ranges Agency: Bureau of Export Avg Hours Per Response: 8 minutes. between 20 and 25 minutes. Administration (BXA). Needs and Uses: The National Ocean Needs and Uses: The information Title: Commodity Classification and Service (NOS) produces charts and provided in the export license Information Requests. publications that help ensure safe application is used as the basis for Agency Form Number: None. navigation on the nation’s waterways. decisions to grant licenses for export of OMB Approval Number: 0694-0048. To meet the needs of recreational goods and technology that are Type of Request: Extension of the boaters, small–craft nautical charts are controlled for reasons of national expiration date of a currently approved produced that contain information on security and foreign policy. collection. marinas. NOS’ requests marina Affected Public: Businesses or other Burden: 3,661 hours. operators to update information on the Number of Respondents: 7,321. for–profit institutions. services provided as charts are revised. Avg Hours Per Response: 30 minutes. Frequency: On occasion. Needs and Uses: Exporters may Affected Public: Individuals, Respondent’s Obligation: Required to request BXA’s assistance in determining businesses or other for–profit obtain or retain a benefit. whether an export transaction requires a institutions, state, local or tribal OMB Desk Officer: Don Arbuckle, license or whether or not the exporter government. (202) 395–7340. Frequency: On occasion. has chosen the appropriate commodity Agency: Bureau of Export Respondent’s Obligation: Voluntary. classification. In order to provide Administration (BXA). OMB Desk Officer: Don Arbuckle, assistance, BXA needs certain Title: Project License Procedure. (202) 395–7340. information so that correct guidance can Agency Form Number: None. Agency: National Oceanic and be provided. Type of Request: Extension of the Atmospheric Administration. Affected Public: Businesses or other expiration date of a currently approved Title: Cooperative Charting Program. for–profit institutions. collection. Frequency: On occasion. Agency Form Number: NOAA 77–4 Burden: 323 hours. Respondent’s Obligation: Required to and 77–5. Number of Respondents: 107. obtain or retain a benefit. OMB Approval Number: 0648–0022. Avg Hours Per Response: OMB Desk Officer: Don Arbuckle, Type of Request: Extension of the Approximately 3 hours. (202) 395–7340. expiration date of a currently approved Needs and Uses: The Project License Agency: Bureau of Export collection. Procedure is one of several special Administration (BXA). Burden: 45,000 hours. licenses established by BXA which Title: Special Chemical License Number of Respondents: 3,000 (on authorize multiple shipments under a Procedure. average 5 responses per respondent). single license. It is a license used for the Agency Form Number: None. Avg Hours Per Response: 3 hours. export of commodities and or technical OMB Approval Number: 0694–0067. Needs and Uses: This collection is data needed for large–scale overseas Type of Request: Extension of the used by members of the U.S. Power operations. expiration date of a currently approved Squadrons and the U.S. Coast Guard Affected Public: Businesses or other collection. Auxiliary to report observed needs for for–profit institutions. Burden: 556 hours. chart corrections. The information Frequency: Annually. Number of Respondents: 200. received is used by NOAA in Respondent’s Obligation: Required to Avg Hours Per Response: Ranges maintaining and preparing the nautical obtain or retain a benefit. between 1 and 15 hours depending on charts that are used throughout the OMB Desk Officer: Don Arbuckle, the requirement. nation by recreational boaters and (202) 395–7340. Needs and Uses: BXA requires commercial vessels for safe navigation. Agency: Bureau of Export validated licenses for the export of Affected Public: Individuals, not–for– Administration (BXA). precursor chemicals and certain dual– profit institutions. Title: Short Supply Regulations use equipment. To reduce the Frequency: On occasion. Petroleum (Crude Oil). paperwork on exporters, BXA Respondent’s Obligation: Voluntary. Agency Form Number: None. established a special procedure that OMB Desk Officer: Don Arbuckle, OMB Approval Number: 0694–0027. allows U.S. exporters to make multiple (202) 395–7340. Type of Request: Reinstatement of a shipments under one license. The Agency: National Oceanic and previously approved collection. information provided is used to make Atmospheric Administration (NOAA). Burden: 144 hours. sure that all parties involved in the Title: Coastal Zone Management Number of Respondents: 24. transaction are reputable and that Program Administrative Grants. Avg Hours Per Response: proliferation controls are strictly Agency Form Number: None. Approximately 6 hours. observed. OMB Approval Number: 0648–0119. Needs and Uses: The export of U.S. Affected Public: Businesses or other Burden: 5,899. domestic crude oil is restricted by five for–profit institutions. Number of Respondents: 34. 39354 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Avg Hours Per Response: Ranges aesthetic qualities of these special areas. Affected Public: Businesses or other between 10 and 480 hours depending on Individuals who wish to conduct for–profit institutions. the requirement. research or other regulated activities in Frequency: On occasion. Needs and Uses: Coastal zone a National Marine Sanctuary must Respondent’s Obligation: Required to management grants provide funds to submit an application for a permit. obtain or retain a benefit. states and territories to implement NOAA reviews the request to ensure OMB Desk Officer: Don Arbuckle, federally–approved coastal zone that the activity is appropriate for a (202) 395–7340. management plans and develop Sanctuary. Persons issued permits are Agency: National Oceanic and assessment documents and multi–year required to submit activity reports. Atmospheric Administration (NOAA). strategies. Information is used to Affected Public: Individuals, Title: Western Alaska Community determine if activities achieve national businesses or other for–profit Development Quota Program. coastal management and enhancement institutions, non–for–profit institutions, objectives and if states are adhering to federal, state, local and tribal Agency Form Number: None. their approved plans. government. OMB Approval Number: 0648-0269. Affected Public: State government. Frequency: On occasion. Type of Request: Extension of the Frequency: Quarterly, semi-annually, Respondent’s Obligation: Required to expiration date of a currently approved annually. obtain or retain a benefit. collection. Respondent’s Obligation: Required to OMB Desk Officer: Don Arbuckle, Burden: 1,517 hours. obtain or retain a benefit. (202) 395–7340. Number of Respondents: 13 but with OMB Desk Officer, (202) 395–7340. Agency: National Oceanic and multiple submissions. Agency: National Oceanic and Atmospheric Administration (NOAA). Avg Hours Per Response: Varies Title: Application for Designation as a Atmospheric Administration (NOAA). depending on the requirements but Sea Grant College or Regional Consortia. Title: Management and Oversight of ranges between 10 and 160 hours. the National Estuarine Research Agency Form Number: None. OMB Approval Number: 0648–0147. Needs and Uses: The North Pacific Reserves System. Fishery Management Council requested Agency Form Number: None. Burden: 20 hours. Number of Respondents: 1. that the National Marine Fisheries OMB Approval Number: 0648–0121. Avg Hours Per Response: 20 hours. Service implement the Western Alaska Type of Request: Revision of a Needs and Uses: The National Sea Community Development Quota currently approved collection. Grant College Act, as amended by Program. This program is intended to Burden: 10,400. Public Law 94–461, provides for the help provide stable, long–term Number of Respondents: 19. designation of eligible institutions as employment in disadvantaged Avg Hours Per Response: Ranges Sea Grant Colleges or Consortia if communities by guaranteeing them a between 1 hour and 2,012 depending on certain criteria are met. Applications definite proportion of pollock, halibut, the requirement. desiring such a designation must and sablefish resources. The Needs and Uses: Grant funds are provide an outline of their capabilities information provided through the available to states to establish estuarine and the reasons why they wish to be application process is used to determine research reserves. Other funds are designated. The information is used for the community’s eligibility for this available for research within these areas. designation decisions. program and to make allocation Applications are necessary to determine Affected Public: Not–for–profit decisions. Quota monitoring reporting eligibility, and reports are necessary to institutions. requirements are also in place. track the use of Federal funds. Frequency: On occasion. Affected Public: State government, Affected Public: Individuals, Respondent’s Obligation: Required to businesses or other for–profit individuals, non–for–profit institutions. obtain or retain a benefit. Frequency: On occasion, annually. institutions. OMB Desk Officer: Don Arbuckle, Frequency: On occasion, annually. Respondent’s Obligation: Required to (202) 395–7340. obtain or retain a benefit. Agency: National Oceanic and Respondent’s Obligation: Required to OMB Desk Officer: Don Arbuckle, Atmospheric Administration (NOAA). obtain or retain a benefit. (202) 395–7340. Title: Final Regulations for Deep OMB Desk Officer: Don Arbuckle, Agency: National Oceanic and Seabed Mining Commercial Recovery. (202) 395–7340. Atmospheric Administration. Agency Form Number: None. Copies of the above information Title: National Marine Sanctuary OMB Approval Number: 0648–0170. collection proposals can be obtained by Permits. Type of Request: Extension of the calling or writing Gerald Tache, DOC Agency Form Number: None assigned. expiration date of a currently approved Forms Clearance Officer, (202) 482– OMB Approval Number: 0648–0141. collection. 3271, Department of Commerce, Room Type of Request: Extension of the Burden: 1 hour. 5327, 14th and Constitution Avenue, expiration date of a currently approved Number of Respondents:None at this N.W., Washington, D.C. 20230. collection. time. Written comments and Burden: 426 hours. Avg Hours Per Response: N/A. recommendations for the proposed Number of Respondents: 248. Needs and Uses: Regulations have information collections should be sent Avg Hours Per Response: Ranges been issued that contain the to Don Arbuckle, OMB Desk Officer, between 30 minutes and 2 hours requirements for applications for Room 10202, New Executive Office depending on the requirement. permits for the commercial recovery of Building, Washington, D.C. 20503. Needs and Uses:The Marine manganese nodules from the deep Protection, Research, and Sanctuaries seabed under the Deep Seabed Hard Dated: July 24, 1995 Act, provides for the establishment of Mineral Resources Act. Although no Gerald Tache, National Marine Sanctuaries. The applications are anticipated in the near Departmental Forms Clearance Officer, Office intended effect is to protect the future, the regulations have been issued of Management and Organization. conservation, recreational, ecological, so that business persons know what the [FR Doc. 95–18939 Filed 8–1–95; 8:45 am] historical, research, educational and application requirements will entail. BILLING CODE 3510±CW±F Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39355 International Trade Administration ‘‘Opportunity to Request an 7217.31.1000, 7217.39.1000, and Administrative Review’’ of this order for 7217.39.5000. Included in this review [A±428±814] the period August 18, 1993 through July are flat-rolled products of Certain Cold-Rolled Carbon Steel Flat 31, 1994 (59 FR 39543). C.D. Walzholz, nonrectangular cross-section where Products From Germany; Preliminary J.N. Eberle & Cie, GmbH, Rochlinger such cross-section is achieved Results of Antidumping Duty Kaltwalzwerk and Thyssen Stahl AG subsequent to the rolling process (i.e., Administrative Review (Thyssen) requested an administrative products which have been ‘‘worked review. We initiated the administrative after rolling’’)—for example, products AGENCY: Import Administration, review on September 8, 1994 (59 FR which have been bevelled or rounded at International Trade Administration, 46391). Subsequently, C.D. Walzholz, the edges. Excluded from this review is Department of Commerce. J.N. Eberle & Cie, GmbH, and Rochlinger certain shadow mask steel, i.e., ACTION: Notice of Preliminary Results of Kaltwalzwerk requested that they be aluminum-killed, cold-rolled steel coil Antidumping Duty Administrative allowed to withdraw from the that is open-coil annealed, has a carbon Review. administrative review. On April 12, content of less than 0.002 percent, is of 1995, we published a ‘‘Notice of Partial 0.003 to 0.012 inch in thickness, 15 to SUMMARY: In response to a request by the Termination of Administrative Review 30 inches in width, and has an ultra flat, respondent, the Department of of Antidumping Order’’ with respect to isotropic surface. These HTS item Commerce (the Department) is these three respondents (60 FR 18581). numbers are provided for convenience conducting an administrative review of The Department is conducting this and Customs purposes. The written the antidumping duty order on Certain review in accordance with section 751 description remains dispositive. Cold-Rolled Carbon Steel Flat Products of the Tariff Act of 1930, as amended The period of review (POR) is August From Germany (A–428–814). The (the Tariff Act). 18, 1993 through July 31, 1994. This review covers sales from one review covers sales of cold-rolled Scope of the Review manufacturer of the subject carbon steel by one manufacturer merchandise to the United States during The products covered by this review (Thyssen). include cold-rolled (cold-reduced) the period August 18, 1993 through July United States Price 31, 1994. carbon steel flat-rolled products, of We have preliminarily determined rectangular shape, neither clad, plated The Department used exporter’s sales that sales have been made below foreign nor coated with metal, whether or not price (ESP) because all sales to the first market value (FMV). If these painted, varnished or coated with unrelated purchaser in the United preliminary results are adopted in our plastics or other nonmetallic substances, States, whether before or after final results of the administrative in coils (whether or not in successively importation, met the requirements set review, we will instruct U.S. Customs to superimposed layers) and of a width of forth by Section 772(c) of the Tariff Act. assess antidumping duties equal to the 0.5 inch or greater, or in straight lengths ESP was based on the packed prices at difference between the United States which, if of a thickness less than 4.75 which the merchandise was sold under price (USP) and FMV. millimeters, are of a width of 0.5 inch various terms to unrelated purchasers in Interested parties are invited to or greater and which measures at least the United States. We made comment on these preliminary results. 10 times the thickness or if of a adjustments, where applicable, for thickness of 4.75 millimeters or more foreign inland freight, plant freight, EFFECTIVE DATE: August 2, 1995. are of a width which exceeds 150 ocean freight, marine insurance, FOR FURTHER INFORMATION CONTACT: millimeters and measures at least twice brokerage and handling, U.S. inland Steve Bezirganian or Robin Gray, Office the thickness, as currently classifiable in freight, U.S. duty, U.S. credit, discounts, of Agreements Compliance, Import the HTS under item numbers inventory carrying costs, technical Administration, International Trade 7209.11.0000, 7209.12.0030, service expenses, warranties, Administration, U.S. Department of 7209.12.0090, 7209.13.0030, warehousing, and indirect selling Commerce, 14th Street and Constitution 7209.13.0090, 7209.14.0030, expenses (which include interest on Avenue, N.W., Washington, D.C. 20230, 7209.14.0090, 7209.21.0000, fixed assets, other U.S.-incurred selling telephone: (202) 482–1395 or (202) 482– 7209.22.0000, 7209.23.0000, expenses, and export selling expenses). 0196, respectively. 7209.24.1000, 7209.24.5000, We also adjusted ESP for value added SUPPLEMENTARY INFORMATION: 7209.31.0000, 7209.32.0000, in further manufacturing, including an 7209.33.0000, 7209.34.0000, allocation of profit earned on U.S. sales. Applicable Statute and Regulations 7209.41.0000, 7209.42.0000, We adjusted USP for taxes in Unless otherwise indicated, all 7209.43.0000, 7209.44.0000, accordance with our practice as citations to the statute and to the 7209.90.0000, 7210.70.3000, outlined in various determinations, Department’s regulations are references 7210.90.9000, 7211.30.1030, including Silicomanganese from to the provisions as they existed on 7211.30.1090, 7211.30.3000, Venezuela; Final Determination of Sales December 31, 1994. 7211.30.5000, 7211.41.1000, at Less Than Fair Value, 59 FR 55435, 7211.41.3030, 7211.41.3090, 55439 (November 7, 1994). Background 7211.41.5000, 7211.41.7030, At the German and U.S. verifications, On July 9, 1993 the Department 7211.41.7060, 7211.41.7090, Thyssen suggested various corrections published in the Federal Register (58 7211.49.1030, 7211.49.1090, to be made to its database. At FR 37136) the final affirmative 7211.49.3000, 7211.49.5030, verification, the Department accepted antidumping duty determination on 7211.49.5060, 7211.49.5090, the changes because each change was certain cold-rolled carbon steel flat 7211.90.0000, 7212.40.1000, minor and ministerial in nature. On products from Germany, for which we 7212.40.5000, 7212.50.0000, May 12, 1995, the Department published an amendment and an 7217.11.1000, 7217.11.2000, instructed Thyssen to make all of the antidumping duty order on August 19, 7217.11.3000, 7217.19.1000, changes to its database, excluding the 1993 (58 FR 44170). On August 3, 1994, 7217.19.5000, 7217.21.1000, change suggested by Thyssen for certain the Department published the notice of 7217.29.1000, 7217.29.5000, discounts, as explained below. On May 39356 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 22, 1995, Thyssen submitted a revised we have not applied the most adverse determined that they need not be tape which incorporated these partial BIA. We have chosen as BIA reported (see Analysis Memorandum to corrections. Based on a review of all of Thyssen’s weighted-average margin the File, June 16, 1995). Thyssen’s submissions and the from the original investigation. Petitioners alleged that Thyssen sold Department’s findings at verification, We disallowed the exchange rate cold-rolled carbon steel in the home the Department determined that the expense which Thyssen claimed due to market at prices below their cost of revised May 22, 1995, tape contains the unexplained changes in this expense in production (COP). Based on this following problems: (1) the the May 22, 1995 submission. (See allegation, the Department determined identification and deletion of what Analysis Memorandum to the File, June that it had reasonable grounds to believe Thyssen characterized as ‘‘duplicate’’ 16, 1995). or suspect that Thyssen had sold steel invoices in a manner inconsistent with Also, due to inaccurate and deficient flat products in the home market at the changes suggested by Thyssen at information provided during the below cost prices. A cost investigation verification; (2) unexplained changes to verification of product characteristics was therefore initiated in accordance unshipped balances for one order; (3) for one U.S. sale, we are assigning to with section 773(b) of the Tariff Act. As changes to quantity of U.S. sales from that sale a margin based on BIA, as a result, we investigated whether Richburg, a division of Thyssen, Inc. previously described. Further, Thyssen Thyssen sold such or similar (TINC), other than those suggested by failed to report contemporaneous home merchandise in the home market at Thyssen at verification, and other market sales for 1992 requirements prices below the COP. In accordance inconsistencies in the changes which contract sales by the Budd Company, a with 19 CFR 353.51(c), we calculated Thyssen did suggest; (4) unexplained related parts manufacturer. We have COP for Thyssen as the sum of reported quantity and price changes for four assigned these sales a margin based on materials, labor, factory overhead, and observations; and (5) errors in the BIA, as previously described (see general expenses. We compared COP to discount field for one U.S. customer. Analysis Memorandum to the File, June home market prices, discounts, and Due to these discrepancies we are 16, 1995). Finally, Thyssen failed to movement expenses. Based on our unable to perform an accurate include in its database a storage/ verification of Thyssen’s cost response, calculation for certain sales. Counsel for warehouse expense incurred by TINC we made the following adjustments to petitioners has argued that the on certain U.S. sales. We adjusted U.S. its COP data: Department should use total BIA in this price to account for this expense, where 1. We recalculated the allocation of case due to the deficiencies in Thyssen’s appropriate (see Analysis Memorandum the thirteenth month adjustment on the response. We have determined, to the File, June 16, 1995). Also, due to basis of costs reported in the however, that resorting to total best errors noted at verification, we adjusted unconsolidated Thyssen Stahl income information available (‘‘BIA’’) is not warehousing expense for the automotive statements for the respective fiscal warranted because Thyssen’s U.S. division for both fiscal years. years. database is not sufficiently flawed such No other adjustments were claimed or 2. We reduced the claimed interest that the response as a whole is allowed. income offset by eliminating dividend income. unreliable. See National Steel Foreign Market Value Corporation v. United States, 870 F. 3. We recalculated net financing Supp. 1130, 1135 (CIT 1994); see also Based on a comparison of the volume expense on a model-specific basis by the July 20, 1995, decision of home market and third country sales, applying the net financing expense ratio memorandum from Richard O. Weible we determined that the home market to the COM of each unique product. to Roland L. MacDonald. Instead, we was viable. Therefore, in accordance After computing COP, we compared used a margin based upon BIA only for with section 773(a)(1)(A) of the Tariff the VAT-neutral product-specific COP those sales of U.S. products where we Act, we based FMV on the packed to the VAT-neutral reported prices net did not have complete and accurate prices at which the merchandise was of movement charges and discounts. In information. sold under various terms to related and accordance with section 773(b) of the The adversity of the information used unrelated purchasers in the home Tariff Act, in determining whether to as partial BIA depends upon the level of market. disregard home market sales made at sufficiency of the information provided. Based on a review of Thyssen’s prices below the COP, we examined When partial BIA is warranted, but the submissions and findings at verification, whether such sales were made in errors in the information submitted the Department determined that substantial quantities over an extended constitute a failure to provide the Thyssen need not report the home period of time, and whether such sales necessary data, the Department market sales made by Thyssen’s related were made at prices which permitted consistently applies adverse BIA. Id. parties to the first unrelated party recovery of all costs within a reasonable (citing, inter alia, Certain Corrosion- (downstream sales). The vast majority of period of time in the normal course of Resistant Carbon Steel Flat Products the products sold by these related trade. From Finland, 58 Fed. Reg. 37,122, parties in the home market possessed To satisfy the requirement of Section 37,124 (1993)). By contrast, when only physical characteristics that made them 773(b)(1) that below cost sales be a minor adjustment in the data is less similar to those imported into the disregarded only if made in substantial involved or there is an inadvertent gap United States than those sold directly by quantities, we applied the following in the record, we apply a less adverse Thyssen to its related and unrelated methodology. For each model for which or neutral surrogate. Nat’l Steel at 1136. home market customers in transactions less than 10 percent, by quantity, of the Thyssen’s revised database did suitable for matching purposes. The home market sales during the POR were contain unauthorized changes and other Department determined that only a made at prices below COP, we included unexplained problems. However, the small portion of the downstream sales all sales of that model in the sales affected are minimal in quantity, could provide potential matches to the computation of FMV. For each model and the apparent inaccuracies consist company’s U.S. sales. Considering the for which 10 percent or more, but less mostly of data-entry problems rather burden that would have been required that 90 percent, of the home market than omissions or insufficiencies in to report these sales relative to the sales during the POR were priced below Thyssen’s reporting. For these reasons, potential utility of the sales, we COP, we excluded those sales priced Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39357 below COP, provided that they were section 773(e) of the Tariff Act. We publication or the first business day made over an extended period of time. included the cost of materials, labor, thereafter. Case briefs and/or written For each model for which 90 percent or factory overhead, and U.S. packing in comments from interested parties may more of the home market sales during our calculations. Where the general be submitted no later than 30 days after the POR were priced below COP and expenses were less than the statutory the date of publication. Rebuttal briefs were made over an extended period of minimum of 10 percent of the cost of and rebuttals to written comments, time, we disregarded all sales of that manufacture (COM), we calculated limited to issues raised in those model in our calculation and, in general expenses as 10 percent of the comments, may be filed not later than accordance with section 773(b) of the COM. Where the actual profits were less 37 days after the date of publication of Tariff Act, we used the constructed than the statutory minimum of 8 percent this notice. The Department will value (CV) of those models, as described of the COM plus general expenses, we publish the final results of these below. See, e.g., Mechanical Transfer calculated profit as 8 percent of the sum administrative reviews including the Presses from Japan, Final Results of of COM plus general expenses. Based on results of its analysis of issues raised in Antidumping Duty Administrative our verification of Thyssen’s cost any such written comments or at a Review, 59 FR 9958 (March 2, 1994). response, we made the same hearing. In accordance with section 773(b)(1) adjustments to respondent’s CV data as The Department shall determine, and of the Tariff Act, to determine whether we made to its COP data, as discussed the Customs Service shall assess, sales below cost had been made over an above. antidumping duties on all appropriate extended period of time, we compared In accordance with section 773 of the entries. Individual differences between the number of months in which sales Tariff Act, for those U.S. models for the USP and FMV may vary from the below cost occurred for a particular which we were able to find a home percentages stated above. model to the number of months in market such or similar match that had Furthermore, the following deposit which that model was sold. If the model sufficient above-cost sales, we requirements will be effective for all was sold in fewer than three months, we calculated FMV based on the packed shipments of the subject merchandise did not disregard below-cost sales prices at which the merchandise was entered, or withdrawn from warehouse, unless there were below-cost sales of sold under various terms to unrelated for consumption on or after the that model in each month sold. If a purchasers or to related purchasers publication date of the final results of model was sold in three or more (where an arm’s-length relationship was these administrative reviews, as months, we did not disregard below- demonstrated) in the home market. We provided for by section 751(a)(1) of the cost sales unless there were sales below made adjustments, where applicable, for Tariff Act. A cash deposit of estimated cost in at least three of the months in freight, inland insurance, discounts, antidumping duties shall be required on which the model was sold. See Tapered credit and warehousing in accordance shipments of certain cold-rolled carbon Roller Bearings and Parts Thereof, with 19 CFR 353.56(a)(1). We adjusted steel flat products from Germany as Finished and Unfinished, From Japan FMV for indirect selling expenses in the follows: (1) The cash deposit rate for the and Tapered Roller Bearings, Four home market, which include plant reviewed company will be the rate Inches or Less in Outside Diameter, and freight, warranty, technical services, Components Thereof, From Japan; Final established in the final results of this inventory carrying costs and other review; (2) For previously investigated Results of Antidumping Duty indirect selling expenses. We limited Administrative Reviews, 58 FR 64720, companies not listed above, the cash the home market indirect selling deposit rate will continue to be the 64729 (December 8, 1993). expense deductions by the amount of Because Thyssen provided no company-specific rate published for the indirect selling expenses incurred in the indication that its below-cost sales of most recent period; (3) If the exporter is United States, in accordance with 19 models within the ‘‘greater than 90 not a firm covered in this review, or the CFR 353.56(b)(2). FMV was also percent’’ and the ‘‘between 10 and 90 original LTFV investigation, but the adjusted for differences in physical percent’’ categories were at prices that manufacturer is, the cash deposit rate characteristics. After deducting home would permit recovery of all costs will be the rate established for the most within a reasonable period of time and market packing, we added packing recent period for the manufacturer of in the normal course of trade, we expenses incurred in Germany for U.S. the merchandise; and (4) If neither the disregarded those sales of models sales to FMV. We adjusted for the exporter nor the manufacturer is a firm within the ‘‘10 to 90 percent’’ category German value added tax. No other covered in this review, the cash deposit which were made below cost over an adjustments were claimed or allowed. rate will be 19.02 percent. This is the extended period of time. In addition, as Preliminary Results of Review ‘‘all others’’ rate from the LTFV a result of our COP test for home market investigation. See Antidumping Duty As a result of our comparison of USP sales of models within the ‘‘greater than Order and Amendment to Final to FMV we preliminarily determine that 90 percent’’ category, we based FMV on Determination of Sales at Less Than the following margin exists for the CV for all U.S. sales for which there Fair Value: Certain Cold-Rolled Carbon period August 18, 1993 through July 31, were insufficient sales of the Steel Flat Products From Germany, 58 1994: comparison home market model at or FR 44170 (August 19, 1993). This notice also serves as a above COP. Finally, where we found, for Margin certain of Thyssen’s models, home Manufacturer/reseller/exporter (percent) preliminary reminder to importers of market sales for which less than 10 their responsibility under 19 CFR percent were made below COP, we used Thyssen ...... 4.80 353.26 to file a certificate regarding the all home market sales of these models reimbursement of antidumping duties in our comparisons. Interested parties may request prior to liquidation of the relevant We also used CV as FMV for those disclosure within 5 days of the date of entries during this review period. U.S. sales for which there was no publication of this notice and may Failure to comply with this requirement contemporaneous sale of such or similar request a hearing within 10 days of could result in the Department’s merchandise in the home market. We publication. Any hearing, if requested, presumption that reimbursement of calculated CV in accordance with will be held 44 days after the date of antidumping duties occurred and the 39358 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices subsequent assessment of double published a notice of ‘‘Opportunity to requested, we use as cooperative BIA antidumping duties. Request Administrative Review’’ with the higher of (1) the highest rate This administrative review and this respect to the period March 1, 1993 (including the ‘‘all others’’ rate) ever notice are in accordance with section through February 28, 1994 (59 FR applicable to the firm for the same class 751(a)(1) of the Tariff Act (19 U.S.C. 14608). The Department received a or kind of merchandise from the same 1675(a)(1)) and 19 CFR 353.22. timely request for review from the country from either the LTFV Dated: July 26, 1995. petitioner, the Floral Trade Council, on investigation or a prior administrative March 31, 1994, in accordance with 19 review; or (2) the highest calculated rate Susan G. Esserman, CFR 353.22(a). The Department is now in this review for any firm for the same Assistant Secretary for Import conducting this administrative review class or kind of merchandise from the Administration. in accordance with section 751 of the same country. See Antifriction Bearings [FR Doc. 95–19013 Filed 8–1–95; 8:45 am] Tariff Act of 1930, as amended (‘‘the (Other Than Tapered Roller Bearings) BILLING CODE 3510±DS±P Tariff Act’’). Unless otherwise indicated, and Parts Thereof From the Federal all citations to the statute and to the Republic of Germany, et al.; Final [A±331±602] Department’s regulations are references Results of Antidumping Duty to the provisions as they existed on Administrative Review, 57 FR 28360, Certain Fresh Cut Flowers From December 31, 1994. 28379–80 (July 24, 1992); see also Allied-Signal Aerospace Co. v. United Ecuador; Preliminary Results of Scope of the Review Antidumping Duty Administrative States 996 F.2d 1185 (Fed. Cir. 1993). Review Imports covered by the review are For these preliminary results we have shipments of certain fresh cut flowers applied a cooperative BIA rate to sales AGENCY: International Trade from Ecuador (standard carnations, made by Flores de Ibarra, Flores de Administration, Import Administration, standard chrysanthemums, and Puewmbo, Flores del Ecuador, Flores Department of Commerce. pompom chrysanthemums). This Pichincha, Florestrade, and Mundiflor. ACTION: Preliminary Results of merchandise is classifiable under These firms are no longer in business, Antidumping Duty Administrative Harmonized Tariff Schedule (‘‘HTS’’) and we have preliminarily determined, Review. items 0603.10.30.00, 0603.10.70.10, in accordance with the standards 0603.10.70.20, and 0603.10.70.30. The enumerated in Certain Fresh Cut SUMMARY: In response to a request from HTS item numbers are provided for Flowers From Colombia; Final Results of the Floral Trade Council, petitioner in convenience and Customs purposes. Antidumping Duty Administrative this proceeding, to conduct an The written description remains Review, and Notice of Revocation of administrative review, the Department dispositive. Order (in Part), 59 FR 15159 (March 31, of Commerce (the Department) has The review covers Flores La Antonia, 1994) (‘‘Colombian Flowers’’), that they conducted an administrative review of Flores del Quinche S.A., Florisol Cia are incapable of responding to the the antidumping duty order on certain Ltda., Flores de Ibarra, Flores de Department’s questionnaire. In fresh cut flowers from Ecuador. The Puewmbo, Flores del Ecuador, Flores Colombian Flowers, the Department review covers twelve producers and/or Pichincha, Florestrade, Guaisa S.A., treated bankrupt, or otherwise out of exporters of this merchandise and the Inlandes S.A., Mundiflor, and Velvet business, firms as cooperative provided period March 1, 1993 through February Flores Cia S.A., which are producers that they explained their situation to the 28, 1994. and/or exporters of certain fresh cut Department. In this case, the firms We have preliminary determined that flowers from Ecuador to the United mentioned above submitted sales have been made below the foreign States and the period March 1, 1993 certifications that they are no longer in market value (FMV). If these through February 28, 1994. business and thus could not respond. preliminary results are adopted in our Best Information Available Therefore, in accordance with final results of administrative review, Colombian Flowers, we preliminarily we will instruct U.S. Customs to assess Because certain companies did not find these firms to be cooperative. antidumping duties equal to the provide a response to the Department’s In this proceeding, none of the firms difference between the United States request for information, in accordance named above had ever received a higher price (USP) and the FMV. with section 776(c) of the Tariff Act, we margin than that calculated for Flores La Interested parties are invited to have preliminarily determined that the Antonia in the instant review. comment on these preliminary results. use of best information otherwise Therefore, we have applied the rate available (BIA) is appropriate for these EFFECTIVE DATE: August 2, 1995. calculated for Flores La Antonia, which firms. The Department’s regulations is 28.44 percent, to Flores de Ibarra, FOR FURTHER INFORMATION CONTACT: provide that we may take into account Flores de Puewmbo, Flores del Ecuador, Thomas E. Schauer, Joseph A. Fargo, or whether a party refuses to provide Flores Pichincha, Florestrade, and Richard Rimlinger, Office of information in determining what rate to Mundiflor. Antidumping Compliance, International use as BIA (19 CFR 353.37(b)). Trade Administration, U.S. Department Generally, whenever a company refuses United States Price of Commerce, Washington, DC 20230; to cooperate with the Department or Pursuant to section 777A of the Tariff telephone: (202) 482–4733/4477. otherwise significantly impedes the Act, we preliminarily determined that it SUPPLEMENTARY INFORMATION: proceeding, we use as adverse BIA the was appropriate to average U.S. prices highest rate for any company for the on a monthly basis in order (1) to use Background same class or kind of merchandise from actual price information that is often On March 18, 1987, the Department of this or any other segment of the available only on a monthly basis; (2) to Commerce (‘‘the Department’’) proceeding. When a company account for large sales volumes; and (3) published in the Federal Register (52 substantially cooperates with our to account for perishable product FR 8494) the antidumping duty order on requests for information, but fails to pricing practices. See Final Results of certain fresh cut flowers from Ecuador. provide all the information requested in Antidumping Duty Administrative On March 4, 1994, the Department a timely manner or in the form Review; Certain Fresh Cut Flowers from Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39359 Colombia, 56 FR 50554 (October 7, Preliminary Results of the Review be 5.89 percent, the ‘‘all others’’ rate 1991). As a result of our review, we from the LTFV investigation. These In calculating United States price preliminarily determine that the deposit requirements, when imposed, (USP), we used purchase price (PP) following margins exist for the period shall remain in effect until publication when sales were made to unrelated March 1, 1993 through February 28, of the final results of the next purchasers in the United States prior to 1994: administrative review. This notice also serves as a the date of importation, or exporter’s preliminary reminder to importers of sales price (ESP) when sales were made Margin Manufacturer/exporter (percent) their responsibility under 19 CFR to unrelated purchasers in the United 353.26 to file a certificate regarding States after the date of importation, both Flores la Antonia ...... 28.44 reimbursement of antidumping duties pursuant to section 772 of the Tariff Act. Flores del Quinche S.A ...... 1.25 prior to liquidation of the relevant We calculated purchase price to the Florisol Cia Ltda ...... 0.06 Flores de Ibarra ...... 28.44 entries during this review period. first unrelated purchaser in the United Flores de Puewmbo ...... 28.44 Failure to comply with this requirement States. The terms of PP sales were either Flores del Ecuador ...... 28.44 could result in the Department’s f.o.b. Quito or c.i.f. Miami. We made Flores Pichincha ...... 28.44 presumption that reimbursement of deductions, where appropriate, for Florestrade ...... 28.44 antidumping duties occurred and the foreign inland freight, air freight, Guaisa S.A ...... (1) subsequent assessment of double 1 brokerage and handling, U.S. Customs Inlandes S.A ...... ( ) antidumping duties. duties, and return credits. Mundiflor ...... 28.44 Velvet Flores Cia S.A ...... (1) This administrative review and notice ESP, for sales made on consignment are in accordance with section 751(a)(1) 1 or through a related affiliate, was No shipments during the period of review; of the Tariff Act (19 U.S.C. 1675(a)(1)) since there was no prior review of this com- and section 353.22 of the Department’s calculated based on the packed price to pany, the ``all other'' rate from the less-than- the first unrelated customer in the fair-value (LTFV) investigation is applicable. regulations (19 CFR 353.22(c)(5)). United States. We made adjustments, Interested parties may request Date: July 26, 1995. where appropriate, for foreign inland disclosure within 5 days of the date of Susan Esserman, freight, brokerage and handling, air publication of this notice and may Assistant Secretary for Import freight, box charges, credit expenses, request a hearing within 10 days of Administration. returned merchandise credits, royalties, publication. Any hearing, if requested, [FR Doc. 95–19015 Filed 8–1–95; 8:45 am] U.S. Customs duties, and either will be held 44 days after the date of BILLING CODE 3510±DS±P commissions paid to unrelated U.S. publication or the first workday consignees or indirect selling expenses thereafter. Case briefs and/or written [A±570±502] of related consignees. comments from interested parties may Foreign Market Value be submitted not later than 30 days after Iron Construction Castings from the the date of publication. Rebuttal briefs People's Republic of China: In calculating foreign market value, and rebuttals to written comments, Preliminary Results of Antidumping the Department used home market limited to issues in those comments, Duty Administrative Review prices since there were sufficient sales may be filed not later than 37 days after of such or similar merchandise in the the date of publication. The Department AGENCY: Import Administration, home market. See section 773(a)(1) of will publish the final results of the International Trade Administration, the Tariff Act. administrative review including the Department of Commerce. results of its analysis of any such ACTION: Notice of Preliminary Results of Home market prices were based on comments or hearing. the packed, ex-factory or delivered Antidumping Duty Administrative Furthermore, the following deposit Review. prices to unrelated purchasers in the requirements will be effective for all home market pursuant to section shipments of the subject merchandise SUMMARY: In response to a request by the 773(a)(1) of the Tariff Act. Where entered, or withdrawn from warehouse, Municipal Castings Fair Trade Counsel applicable, we made adjustments for for consumption on or after the and its individually-named members, post-sale movement expenses and publication date of the final results of Alhambra Foundry, Inc., Allegheny differences in packing in accordance this administrative review, as provided Foundry Co., Bingham & Taylor with section 773(a)(1) of the Tariff Act. for by section 751(a)(1) of the Tariff Act: Division, Virginia Industries, Inc., We also made adjustments for (1) the cash deposit rates for the Charlotte Pipe & Foundry Co., East differences in circumstances of sale in reviewed companies will be those rates Jordan Iron Works, Inc., Inland Foundry accordance with 19 CFR 353.56, as established in the final results of this Company, Inc., LeBaron Foundry Inc., follows. For comparisons to PP sales, we review; (2) for previously reviewed or Municipal Castings, Inc., Neenah deducted home market direct selling investigated companies not listed above, Foundry Co., Opelika Foundry Co., expenses and added U.S. direct selling the cash deposit rate will continue to be Tyler Pipe Industries Inc., U.S. Foundry expenses. For comparisons to ESP sales, the company-specific rate published for & Manufacturing Co., and Vulcan we deducted home market direct selling the most recent period; (3) if the Foundry, Inc., the Department of expenses. We also made adjustments, exporter is not a firm covered in this Commerce (the Department) is where applicable, for home market review, a prior review, or the original conducting an administrative review of indirect selling expenses to offset U.S. LTFV investigation, but the the antidumping duty order on iron commissions in PP and ESP calculations manufacturer is, the cash deposit rate construction castings from the People’s and to offset U.S. indirect selling will be the rate established for the most Republic of China (PRC). The review expenses deducted in ESP calculations, recent period for the manufacturer of covers one producer/exporter, the but not exceeding the amount of the the merchandise; and (4) for all other Liaoning Branch of the China National indirect U.S. expenses in accordance producers and/or exporters of this Machinery Import and Export with 19 CFR 353.56(b). merchandise, the cash deposit rate shall Corporation (MACHIMPEX, Liaoning) 39360 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices and entries of the subject merchandise Use of Best Information Available consumption on or after the publication into the United States during the period On July 27, 1994, the Department sent date of the final results of this May 1, 1993, through April 30, 1994. to the respondent, MACHIMPEX, administrative review, as provided by We have preliminarily determined that Liaoning, a questionnaire to determine section 751(a)(1) of the Act: (1) The cash a dumping margin exists for whether it was eligible for a separate deposit rate for the reviewed company, MACHIMPEX, Liaoning. The rate in this review. On October 11, 1994, MACHIMPEX, Liaoning, shall be the Department based this margin on the the Department sent to the respondent rate established in the final results of best information available (BIA). a general antidumping questionnaire. this review; (2) for Minmetals Interested parties are invited to Although we established that the Guangdong, which received a separate comment on these preliminary results. respondent received both rate for the most recent period for which EFFECTIVE DATE: August 2, 1995. questionnaires, MACHIMPEX, Liaoning it was reviewed, the cash deposit rate FOR FURTHER INFORMATION CONTACT: failed to respond to either will continue to be the company- Rebecca Trainor or Maureen Flannery, questionnaire. The Department therefore specific rate published for the most Office of Antidumping Compliance, determines that MACHIMPEX, Liaoning recent period; (3) for all other PRC Import Administration, International is an uncooperative respondent, and exporters, the cash deposit rate will be Trade Administration, U.S. Department that the use of BIA is appropriate, in 92.74 percent, the PRC country-wide of Commerce, 14th Street and accordance with section 776(c) of the rate; and (4) for non-PRC exporters of Constitution Avenue, NW, Washington, Act. Whenever, as here, a company the subject merchandise from the PRC, DC 20230; telephone: (202) 482–4733. refuses to cooperate with the the cash deposit rate will be the rate applicable to the PRC supplier of that SUPPLEMENTARY INFORMATION: Department, or otherwise significantly impedes an antidumping proceeding, exporter. Background we use as BIA the higher of (1) the These deposit requirements, when imposed, shall remain in effect until On May 4, 1994, the Department highest of the rates found for any firm publication of the final results of the published in the Federal Register (59 for the same class or kind of next administrative review. FR 23051) a notice of ‘‘Opportunity to merchandise in the same country of This notice serves as a preliminary Request an Administrative Review’’ of origin in the less-than-fair-value (LTFV) reminder to importers of their the antidumping duty order on iron investigation or in prior administrative responsibility under 19 CFR 353.26 to construction castings from the PRC (51 reviews; or (2) the highest rate found in file a certificate regarding the FR 17222 (May 9, 1986)). In accordance this review for any firm for the same reimbursement of antidumping duties with 19 CFR 353.22(a)(1), the petitioner class or kind of merchandise. (See prior to liquidation of the relevant requested an administrative review for Antifriction Bearings from France, et. al; entries during this review period. MACHIMPEX, Liaoning. On June 15, Final Results of Review, 58 FR 39729 Failure to comply with this requirement 1994, the Department published a notice (July 26, 1993).) As BIA, we have could result in the Secretary’s of initiation of this review (59 FR assigned the rate of 92.74 percent, presumption that reimbursement of 30770), covering the period May 1, which is the highest rate found for any antidumping duties occurred and the 1993, through April 30, 1994. The iron construction casting producer from subsequent assessment of double Department has now conducted this the prior reviews and the LTFV antidumping duties. review in accordance with section 751 investigation. Since MACHIMPEX, This administrative review and notice of the Tariff Act of 1930, as amended Liaoning did not respond to our are in accordance with section 751(a)(1) (the Act). separate rates questionnaire, we have of the Act (19 U.S.C. 1675(a)(1)) and determined that we will not give a section 353.22 of the Department’s Scope of the Review separate rate to MACHIMPEX, Liaoning. The products covered by this review regulations. are iron construction castings, limited to Preliminary Results of Review Dated: July 26, 1995. manhole covers, rings and frames; catch We preliminarily determine that a Susan G. Esserman, basin grates and frames; cleanout covers margin of 92.74 percent exists for Assistant Secretary for Import and frames used for drainage or access MACHIMPEX, Liaoning for the period Administration. purposes for public utility, water, and May 1, 1993 through April 30, 1994. [FR Doc. 95–19012 Filed 8–1–95; 8:45 am] sanitary systems; valve, service, and Any interested party may request a BILLING CODE 3510±DS±P meter boxes which are placed below hearing within 10 days of publication of ground to encase water, gas, or other this notice. Any hearing will be held 44 valves, or water or gas meters. These days after the date of publication of this [C±201±505] articles must be of cast iron, not alloyed, notice, or the first workday thereafter. Porcelain-on-Steel Cookingware from and not malleable. Certain iron Interested parties may submit case briefs Mexico; Preliminary Results of a construction castings are currently within 30 days of the publication date Countervailing Duty Administrative classifiable under numbers of this notice. Rebuttal briefs, limited to Review 7352.10.00.00 and 7325.10.00.50 of the issues raised in the case briefs, may be Harmonized Tariff Schedule of the filed not later than 37 days after the date AGENCY: Import Administration, United States (HTSUS). The HTSUS of publication of this notice. The International Trade Administration, item numbers are provided for Department will publish a notice of the Department of Commerce. convenience and Customs purposes final results of this administrative ACTION: Notice of Preliminary Results of only. The written description remains review, which will include the results of Countervailing Duty Administrative dispositive as to the scope of the order. its analysis of issues raised in any such Review This review covers sales of the subject case briefs. merchandise manufactured by The following deposit requirements SUMMARY: The Department of Commerce MACHIMPEX, Liaoning and entered shall be effective for all shipments of the (the Department) is conducting an into the United States during the period subject merchandise that are entered, or administrative review of the May 1, 1993, through April 30, 1994. withdrawn from warehouse, for countervailing duty order on porcelain- Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39361 on-steel cookingware from Mexico. We self-contained electric heating elements. export sales (export loans). In addition, preliminarily determine the net subsidy All of the foregoing are constructed of Bancomext may provide financing to to be de minimis for Acero steel, and are enameled or glazed with foreign buyers of Mexican goods and Porcelanizado, S. A. de C.V. (APSA) and vitreous glasses. During the review services. 0.53 percent ad valorem for all other period, such merchandise was The Department has previously found companies for the period January 1, classifiable under item number this program to confer an export subsidy 1993 through December 31, 1993. If the 7323.94.0020 of the Harmonized Tariff to the extent that the loans are provided final results remain the same as these Schedule (HTS). The HTS item number at preferential terms (See Porcelain-on- preliminary results of administrative is provided for convenience and Steel Cookingware From Mexico; review, we will instruct U.S. Customs Customs purposes. The written Preliminary Results of Countervailing Service to assess countervailing duties description remains dispositive. Duty Administrative Review (56 FR as indicated above. Interested parties are 48163; September 24, 1991) and Calculation Methodology for invited to comment on these Porcelain-on-Steel Cookingware From Assessment and Cash Deposit Purposes preliminary results. Mexico; Final Results of Countervailing EFFECTIVE DATE: August 2, 1995. We calculated the net subsidy on a Duty Administrative Review (57 FR 562; January 7, 1992)). In this review the FOR FURTHER INFORMATION CONTACT: country-wide basis by first calculating Government of Mexico provided no new Norma Curtis or Kelly Parkhill, Office of the subsidy rate for each company subject to the administrative review. We information that would lead the Countervailing Compliance, Import Department to alter that determination. Administration, International Trade then weight-averaged the rate received by each company using as the weight its Both APSA and Cinsa had Bancomext Administration, U.S. Department of loans on which interest was due during Commerce, 14th Street and Constitution share of total Mexican exports to the United States of subject merchandise, the POR. We found that the annual Avenue, N.W., Washington, D.C. 20230; interest rates that Bancomext charged to Telephone: (202) 482–2786. including all companies, even those with de minimis and zero rates. We then borrowers for certain loans on which SUPPLEMENTARY INFORMATION: summed the individual companies’ interest payments were due during the review period were lower than the Background weight-averaged rates to determine the subsidy rate from all programs commercial rates. The dollar- On December 12, 1986, the benefitting exports of subject denominated Bancomext loans under Department published in the Federal merchandise to the United States. review were granted at annual interest Register (55 FR 51139) the Since the country-wide rate rates ranging from 6.0 percent to 8.75 countervailing duty order on porcelain- calculated using this methodology was percent. For these loans, we used the on-steel cookingware from Mexico. On above de minimis, as defined by 19 CFR average quarterly weighted-average November 26, 1993, the Department § 355.7 (1994), we proceeded to the next effective interest rates published in the published in the Federal Register a step and examined the net subsidy rate Federal Reserve Bulletin, which notice of ‘‘Opportunity to Request calculated for each company to resulted in an annual average Administrative Review’’ (58 FR 62326) determine whether individual company benchmark of 6.5 percent in 1993. This of this countervailing duty order. We rates differed significantly from the is the same benchmark calculation received a timely request for review weighted-average country-wide rate, methodology that has been applied in from APSA, a respondent company. pursuant to 19 CFR § 355.22(d)(3). prior reviews (See Porcelain-on-Steel We initiated the review, covering the APSA had a significantly different net Cookingware From Mexico; Preliminary period January 1, 1993 through subsidy rate during the review period Results of Countervailing Duty Administrative Review (56 FR 48163; December 31, 1993 (POR), on January pursuant to 19 CFR § 355.22(d)(3). This September 24, 1991) and Porcelain-on- 18, 1994 (59 FR 2593). We conducted a company is treated separately for Steel Cookingware From Mexico; Final verification of the questionnaire assessment and cash deposit purposes. Results of Countervailing Duty responses on September 7, 1994 through All other companies are assigned the Administrative Review (57 FR 562; September 14, 1994. The review covers country-wide rate. two manufacturers/exporters of the January 7, 1992)). subject merchandise, APSA and Cinsa, Analysis of Programs The peso-denominated Bancomext pre-export loan under review was S.A. de C.V. (Cinsa), which accounted I. Programs Conferring Subsidies for all exports of POS cookware during granted at an annual interest rate of 14.8 the POR and ten programs. A. Programs Previously Determined to percent. As a basis for our benchmark Confer Subsidies for this loan, we have relied in part on Applicable Statute and Regulations the effective rates for the years 1981 1. BANCOMEXT Financing for through 1984, as published monthly in The Department is conducting this Exporters administrative review in accordance the Banco de Mexico’s Indicadores with section 751 (a) of the Tariff act of Banco Nacional de Comercio Exterior, Economicos y Moneda (I.E.), because 1930, as amended (the Act). Unless S.N.C. (Bancomext) is a government the Banco de Mexico stopped otherwise indicated, all citations to the program through which short-term publishing data on nominal and statute and to the Department’s financing is provided to producers or effective commercial lending rates in regulations are in reference to the trading companies engaged in export Mexico after 1984. We calculated the provisions as they existed on December activities. In order to be eligible for average difference between the I.E. 31, 1994. Bancomext financing a company must effective interest rates and the Costo be established according to Mexican Porcentual Promedio (CPP) rates, the Scope of the Review law, 30 percent Mexican national average cost of short-term funds to Imports covered by this review are owned, and be an exporter. Bancomext banks, for the years 1981 through 1984. shipments of porcelain-on-steel provides two types of financing to We added this average difference to the cookingware from Mexico. The products exporters, denominated in either U.S. 1993 average annual CPP rates. For the are porcelain-on-steel cookingware dollars or in Mexican pesos: working peso-denominated loan on which (except teakettles), which do not have capital (pre-export loans), and loans for interest was due during 1993, we 39362 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices calculated an annual benchmark of factual information submitted’’. Since Results of Countervailing Duty 29.79 percent. This is the same the interest rate for this loan was not Administrative Review (56 FR 48163; benchmark calculation methodology reported in the questionnaire responses September 24, 1991) and Porcelain-on- that has been applied in prior reviews nor provided at verification when Steel Cookingware From Mexico; Final (See Porcelain-on-Steel Cookingware requested, we must use BIA to calculate Results of Countervailing Duty From Mexico; Preliminary Results of the benefit from this loan. Therefore, as Administrative Review (57 FR 562; Countervailing Duty Administrative BIA we are assigning this loan a zero January 7, 1992). To calculate the Review (56 FR 48163; September 24, interest rate, and have used that rate to benefit from this loan, we used the same 1991) and Porcelain-on-Steel calculate the benefit from this loan. The benchmark as for the peso-denominated Cookingware From Mexico; Final interest rate we are applying as BIA is Bancomext pre-export loan. We Results of Countervailing Duty zero percent because it is the most compared this benchmark with the Administrative Review (57 FR 562; adverse interest rate. interest rate in effect for each FONEI January 7, 1992)). We consider the To calculate the benefit for each loan payment made during the review benefits from short-term loans to occur exporter, we multiplied the difference period and multiplied the difference by at the time the interest is paid. Because between the interest rate charged to the outstanding loan principal. We interest on Bancomext pre-export loans exporters for these loans and the divided the benefit by the company’s is paid at maturity, we calculated benchmark interest rate by the principal total sales to all markets during the benefits based on loans that matured and then multiplied this amount by the review period. On this basis, we during the review period; such loans term of the loan divided by 365. preliminarily determine the subsidy were obtained between December 1992 Because one company’s monthly sales from this program to be 0.01 percent ad and September 1993. figures are indexed to account for valorem for Cinsa. During verification at APSA, we inflation, we adjusted that company’s discovered one short-term loan that benefit amounts to be on the same terms II. Programs Preliminarily Found Not to appears to be a Fomex loan which was as the sales figures. Since neither APSA be Used not reported in the questionnaire nor Cinsa was able to tie their loans to We also examined the following responses. Fomex was a program specific sales, we divided the benefit by programs and preliminarily determine previously found countervailable by the total export sales. On this basis, we that the exporters of the subject Department and operates much like the preliminarily determine the subsidy merchandise did not apply for or Bancomext program which the from this program to be 0.02 percent ad receive benefits under these programs Department has also found valorem for APSA and 0.60 percent ad during the review period: countervailable (See Porcelain-on-Steel valorem for Cinsa. (A) Certificates of Fiscal Promotion Cookingware From Mexico; Preliminary 2. FONEI Long-Term Financing (CEPROFI) Results of Countervailing Duty (B) PITEX Administrative Review (56 FR 48163; The Fund for Industrial Development (C) Other Bancomext Preferential September 24, 1991) and Porcelain-on- (FONEI) was a Government of Mexico Financing Steel Cookingware From Mexico; Final trust administered by the Banco de (D) Import Duty Reductions and Results of Countervailing Duty Mexico until its dissolution on Exemptions Administrative Review (57 FR 562; December 31, 1989. FONEI was a (E) State Tax Incentives January 7, 1992)). However, the interest specialized financial development fund (F) Article 15 Loans rate for this loan is higher than the that provided long-term loans at below- (G) NAFINSA FOGAIN-type Financing benchmark and, therefore, there is no market rates. FONEI was designed to (H) NAFINSA FONEI-type Financing benefit to APSA. foster the efficient production of During verification at the Government services and industrial goods by Preliminary Results of Review of Mexico, we discovered one Mexican companies. For the period January 1, 1993 Bancomext loan for Cinsa that had not The Department has previously found through December 31, 1993, we been reported in the questionnaire this program to confer a subsidy because preliminarily determine the net subsidy responses, and for which the company it provides loans on terms inconsistent to be 0.02 percent ad valorem for APSA did not provide the interest rate upon with commercial considerations and and 0.53 percent ad valorem for all request at verification. (See Bancomext restricts loan benefits to companies other companies. In accordance with 19 Section of the Government of Mexico’s located in specific regions (See CFR 255.7, any rate less than 0.5% ad Verification Report dated May 9, 1995 Porcelain-on-Steel Cookingware From valorem is de minimis. and Short-Term Loan Section of Cinsa’s Mexico; Preliminary Results of If the final results of this review Verification Report dated May 9, 1995, Countervailing Duty Administrative on file in the public file of the Central Review (56 FR 48163; September 24, remain the same as these preliminary Records Unit, Room B–099 of the 1991) and Porcelain-on-Steel results, the Department intends to Department of Commerce). Section Cookingware From Mexico; Final instruct the U.S. Customs Service to 776(c) of the Act requires the Results of Countervailing Duty assess the following countervailing Department to use best information Administrative Review (57 FR 562; duties: available (BIA) whenever a party or any January 7, 1992)). In this review the Rate other person refuses or is unable to Government of Mexico provided no new Manufacturer/exporter (percent) produce information requested. information that would lead the Furthermore, 19 CFR 355.37 (1994) Department to alter that determination. APSA ...... 0.00 requires the Department to use BIA Cinsa had a FONEI loan outstanding All Other Companies ...... 0.53 ‘‘whenever the Secretary: (1) does not during the review period. Because this receive a complete, accurate, and timely peso-denominated loan had a variable The Department also intends to response to the Secretary’s request for interest rate, we treated it as a series of instruct the U.S. Customs Service to factual information; or (2) is unable to short-term loans, as we have done collect a cash deposit of estimated verify, within the time specified, the previously in Porcelain-on-Steel countervailing duties of zero percent of accuracy and completeness of the Cookingware From Mexico; Preliminary the f.o.b. invoice price on all shipments Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39363 of the subject merchandise from APSA, Review on Certain Yarn Products Department verified the responses of the and 0.53 percent of the f.o.b. invoice covered under the Suspended Royal Thai Government (RTG) and the price on all shipments of the subject Investigation on Certain Textile Mill Thai Textile Manufacturers Association merchandise from all other companies Products from Thailand. (TTMA) from January 16 through entered, or withdrawn from warehouse, January 25, 1995 pursuant to the for consumption on or after the date of SUMMARY: The Department of Commerce administrative review. publication of the final results of this (the Department) is conducting an Due to prior analysis of interested review. administrative review of Certain Yarn party status of AYSA in 1990, the Parties to the proceeding may request Products covered under the suspended Department initiated this review on disclosure of the calculation countervailing duty investigation on certain yarn products only for the methodology and interested parties may Certain Textile Mill Products from period May 18, 1992, through December request a hearing not later than 10 days Thailand (‘‘suspension agreement’’). We 31, 1993 (FR 59 18099, April 15, 1994). after the date of publication of this have preliminarily determined that for The review covers nine programs and notice. Interested parties may submit the period May 18, 1992, through eight producers/exporters: Saha Union, written arguments in case briefs on December 31, 1993, the signatories were Venus Thread, Union Thread, Union these preliminary results within 30 days not in violation of the suspension Spinning, Thai Melon, Thai American, of the date of publication. Rebuttal agreement. Interested parties are invited Thai Blanket, and Thai Synthetic. briefs, limited to arguments raised in to comment on these preliminary case briefs, may be submitted seven results. Applicable Statue and Regulations days after the time limit for filing the EFFECTIVE DATE: August 2, 1995. The Department is conducting this case brief. Parties who submit written FOR FURTHER INFORMATION CONTACT: Lisa administrative review in accordance arguments in this proceeding are Yarbrough or Jackie Wallace, Office of with section 751(a) of the Tariff Act of requested to submit with the argument Agreements Compliance, Import 1930, as amended (the Act). Unless (1) a statement of the issue and (2) a Administration, International Trade otherwise indicated, all citations to the brief summary of the argument. Any Administration, U.S. Department of statute and to the Department’s hearing, if requested, will be held seven Commerce, Washington, D.C. 20230, regulations are in reference to the days after the scheduled date for telephone (202) 482–3793. provisions as they existed on December submission of rebuttal briefs. Copies of 31, 1994. SUPPLEMENTARY INFORMATION: case briefs and rebuttal briefs must be Scope of Review served on interested parties in Background accordance with 19 CFR 355.38(e). On November 23, 1990, the Imports covered by this review are Representatives of parties to the Department published in the Federal shipments of certain yarns from proceeding may request disclosure of Register (55 FR 48885) a notice Thailand. During the period of review, proprietary information under terminating in part the suspension such merchandise was classifiable administrative protective order no later agreement on Certain Textile Mill under the Harmonized Tariff Schedule than 10 days after the representative’s Products from Thailand (50 FR 9837, (HTS) item numbers 5204.11.0000, client or employer becomes a party to March 12, 1985). On May 9, 1992, the 5204.19.0000, 5204.20.0000, the proceeding, but in no event later Court of International Trade (CIT) held 5206.21.0000, 5206.22.0000, than the date the case briefs, under that the Department’s termination was 5206.23.0000, 5206.24.0000, section 355.38(c), are due. The not in accordance with the law because 5206.25.0000, 5206.41.0000, Department will publish the final the Department failed to strictly follow 5206.42.0000, 5206.43.0000, results of this administrative review 19 CFR 355.25(d)(4). The Court of 5206.44.0000, 5206.45.0000, including the results of its analysis of Appeals for the Federal Circuit (CAFC) 5207.10.0000, 5207.90.0000, issues raised in any case or rebuttal brief affirmed the decision of the CIT on 5401.10.0000, 5402.31.3000, or at a hearing. October 12, 1993, and instructed the 5402.32.3000, 5402.33.6000, This administrative review and notice Department to reinstate the suspension 5406.10.0020, 5406.10.0040, are in accordance with section 751(a)(1) agreement. Subsequently, on October 5406.10.0090, 5508.20.0000, of the Act (19 U.S.C. 1675(a)(1)) and 19 22, 1993, the Department reinstated the 5510.12.0000, 5510.90.4000, and CFR 355.22. suspension agreement, effective May 18, 5511.30.0000. Dated: July 26, 1995. 1992, the date the Department Analysis of Programs Susan G. Esserman, published notice of the CIT decision. Assistant Secretary for Import On March 4, 1994 , the Department 1. Electricity Discounts Administration. published in the Federal Register a Under Section II(b) of the suspension [FR Doc. 95–19014 Filed 8–1–95; 8:45 am] notice of ‘‘Opportunity to Request agreement, the producers and exporters BILLING CODE 3510±DS±P Administrative Review’’ (59 FR 10368) are not to apply for, or receive, any of the suspended investigation for the discount on electricity rates provided by period May 18, 1992 to December 31, the electricity authorities of Thailand [C±549±401] 1993. The Department received requests (the Electricity Generating Authority of Certain Textile Mill Products From for an administrative review of certain Thailand (EGAT), Metropolitan Thailand; Preliminary Results of yarn products on March 31, 1994, from Electricity Authority (MEA) or the Countervailing Duty Administrative the American Yarn Spinners Provincial Electricity Authority (PEA)) Review Association (AYSA) and certain for exports of subject merchandise. individual yarn producers. On April 15, EGAT is the general producing AGENCY: Import Administration, 1994, the Department initiated a authority of electricity in Thailand International Trade Administration, countervailing duty administrative selling to regional authorities such as Department of Commerce. review on Certain Yarn Products for the MEA and PEA. PEA and MEA in turn ACTION: Notice of Preliminary Results of period May 18, 1992 to December 31, sell electricity to companies in their the Countervailing Duty Administrative 1993 (59 FR 18099, April 15, 1994). The jurisdiction. This program was 39364 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices terminated effective January 1, 1990. tax on the net profit derived from the EPZ can receive import duty However, producers and exporters who promoted activity. exemptions on equipment and raw applied for discounts on exports prior to Section 35—IPA Section 35 provides materials, and exemption of export January 1, 1990, are still eligible to certain income tax benefits to firms duties on exported goods. receive residual benefits on those located in investment promotion zones. Based on our verification, we found exports. Section 36 (1)—IPA Section 36(1) no use of this program by signatories to Based on our verification, we found allows companies an exemption from the suspension agreement. See that neither EGAT, MEA, or PEA import duties on raw and essential verification report dated June 1, 1995. provided residual benefits during the materials used to produce goods for 6. Duty Drawback POR on exports of subject merchandise export. to the United States. See verification Section 36 (4)—IPA Section 36(4) Under Section II (c) of the suspension report dated June 1, 1995. grants companies permission to deduct agreement, exporters and producers are from taxable income an amount equal to not to apply for, or receive, rebates on 2. Repurchase of Industrial Bills 5% of the increase in export earnings shipments of subject merchandise in Under Section II(f) of the suspension over the previous year. excess of the import duties paid on agreement, the producers and exporters Based on our verification, we found items that are physically incorporated are not to apply for, or receive, any no indication of signatories receiving into exported products. promissory notes from the Bank of benefits under these programs during Under this program, Thai Customs Thailand (BOT) for exports of subject the POR. See verification report dated will refund import duties paid on merchandise to the United States. June 1, 1995. imported goods used in the production In 1988, this program was changed of an exported product. In order to 4. International Trade Promotion Fund from ‘‘Rediscount of Industrial Bills’’ to qualify for duty drawback, the goods ‘‘Repurchase of Industrial Bills’’ (see Under Section II(h) of the suspension must be exported through an authorized ‘‘Notification of the Bank of Thailand agreement, the producers and exporters port, the exports must be shipped #2531 re: Repurchase of Industrial Bills are to notify the Department in writing within one year of the date of 1988’’). Under this program, companies prior to applying for or accepting any importation of the goods on which can receive discounted financing for new benefit which is, or is likely to be, drawback is claimed, and the producer/ working capital on industrial bills for a a countervailable bounty or grant on exporter must request drawback within period of 120 days. This program shipments of subject merchandise six months of the date of exportation of operates similarly to the Export Packing exported, directly or indirectly, to the the goods. Credit Program where companies can United States. Although the Department During the POR, Saha Union, Union receive financing from a commercial has never determined this program to be Spinning, Union Thread, Venus Thread, bank or the Industrial Finance countervailable, we reviewed this and Thai Melon used duty drawback on Corporation at interest rates of 10% or program in the administrative review. exported goods of subject merchandise less. The BOT will then repurchase 50% This program, governed by the ‘‘Rule to the United States. Based on of the bills from the commercial bank or on Administration of the International verification, we found that the amount Industrial Finance Corporation. Trade Promotion Fund (ITPF), B.E. 2532 of drawback received was not in excess Based on our verification, we found (1989),’’ promotes and develops Thai of the items physically incorporated the signatories subject to this review exports worldwide through incoming into the exported product. See were not among those that applied for, and outgoing trade missions. The ITPF verification report dated June 1, 1995. or received, industrial bills for exports provides training and seminars for of subject merchandise to the United exporters, and publicity through public 7. Double Deduction for Foreign States during the POR. See verification advertisements. Marketing Expenses report dated June 1, 1995. Based on our verification, we Under Section II (e) of the suspension confirmed that Saha Union and its agreement, the producers and exporters 3. Investment Promotion Act: Section relateds (Union Spinning, Union are not to apply for, or receive, the 28, 31, 35, and 36 Thread, and Venus Thread) participated double deduction of foreign marketing Under Section II (i) of the suspension in an international trade fair, promoting expenses for income tax purposes or agreement, the producers and exporters subject merchandise. Saha Union and financing on concessionary terms from are to notify the Department in writing its related companies paid their own the BOT on exports of subject prior to applying for, or receiving, expenses to participate in the trade fair. merchandise. benefits under the Investment See verification report dated June 1, From 1978 through 1981, the BOI Promotion Act on shipments exported 1995. granted trading companies a benefit on to the United States. the double deduction of foreign 5. Export Processing Zones The Investment Promotion Act of marketing expenses from taxable 1977 (IPA) is a general act, administered Under Section II (i) of the suspension income. In order to receive this benefit, by the Board of Investment (BOI), that agreement, producers and exporters a company had to be promoted through allows for the promotion of different shall notify the Department in writing the BOI. This program was terminated industries selected for development prior to making an application to locate in 1981 ‘‘BOI Announcement No. 1/ assistance by the BOI. Under this in an Export Processing Zone. 2524.’’ program, producers and exporters must This program is governed by the Based on verification, we found no be granted a BOI license which enables ‘‘Industrial Estates Authority of use of this benefit. See verification them to receive various IPA benefits. Thailand Act, B.E. 2522, 1979.’’ Under report dated June 1, 1995. Such benefits include the following: this program, a company must apply to Section 28—IPA Section 28 provides the Industrial Estate Authority of 8. Tax Certificates an exemption from payment of import Thailand (IEAT) for permission to locate Under Section II (c) of the suspension duties on imported machinery. in an export processing zone (EPZ). All agreement, the producers and exporters Section 31—IPA Section 31 provides EPZ’s are located inside an industrial can apply or receive tax certificates on an exemption of juristic person income estate. Companies located within an shipments of subject merchandise Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39365 exported directly or indirectly to the supported by an irrevocable letter of For those signatories who received tax United States for import duties paid on credit, a sales contract, a purchase certificates in excess of the import items that are physically incorporated order, or a warehouse receipt. The duties paid on items physically into exported products. If the producers commercial bank will then resell 50% of incorporated into exports of subject and exporters apply for tax certificates the promissory note to the BOT at a merchandise, we will require that they in excess of the items physically lower interest rate. The maximum repay to the RTG, in an annual incorporated, the suspension agreement interest rate a commercial bank can adjustment, any amount by which the requires that the producers and charge the exporter is 10% per annum. tax certificates exceed the amount of If an exporter does not fulfill the exporters repay to the RTG, in an annual import duties on physically contract by the due date of the EPC, the adjustment, the amount in which the tax incorporated inputs. The annual certificates exceed the import duties on BOT will automatically charge the adjustment shall be calculated in physically incorporated inputs. commercial bank a penalty interest rate. Tax certificate applications are made The commercial bank will then pass this accordance with Section II c(i)(ii) of the on a shipment by shipment basis after penalty onto the exporter. The penalty suspension agreement. the producer/exporter receives payment interest rate is 6.5% per annum Parties to the proceeding may request for its shipment. The application can calculated over the full term of the loan. disclosure of the calculation include up to 10 shipments and must be However, penalties can be refunded if methodology and interested parties may submitted within one year of the the exporter ships the merchandise request a hearing not later than 10 days shipment date. Exporters can apply for within 60 days after the due date. If only after the date of publication of this an extension if they do not meet the one a portion of the goods is shipped by the notice. year deadline. due date, the exporter receives a partial The law governing this program is the refund in proportion to the value of the Interested parties may submit written ‘‘Tax and Duty Compensation of goods shipped. arguments in case briefs on these Exported Goods Produced in the Based on our verification, we found preliminary results within 30 days of Kingdom Act, B.E. 2524 (1981).’’ that Thai Melon and Thai American did the date of publication, in accordance Effective January 1, 1992, new nominal use this program for exports of certain with 19 CFR 355.38(c)(1994). Rebuttal rebate rates were established for all yarns to the United States during the briefs, limited to arguments raised in products by the Committee on Tax and review period. See verification report case briefs, may be submitted seven Duty Rebates for Exported Goods dated June 1, 1995. days after the time limit for filing the Produced in the Kingdom. The new The Department has calculated a case brief, in accordance with 19 CRF nominal rates applicable to signatories subsidy rate for EPCs received by Thai 355.38(d)(1994). Any hearing, if are categorized by the following sectors: Melon and Thai American for this requested, will be held seven days after spinning, weaving, made-up textile administrative review. We first the scheduled date for submission of goods, and knitting. Because nominal computed the total benefit received on rebuttal briefs (19 CRF 355.38(f)(1994)). rates are in excess of the physically the export packing credits. We then Copies of case briefs and rebuttal briefs incorporated inputs, the Department has calculated a company specific subsidy must be served on interested parties in rate for Thai Melon and included Thai calculated, and requested that the RTG accordance with 19 CRF implement non-excessive rates. See American in the company rate because it is a related party . Next, we weight- 355.38(e)(1994). Representatives of verification report dated September 15, parties to the proceeding may request 1994, and letter from Roland L. averaged the benefit rate received by the disclosure of proprietary information MacDonald to Arthur J. Lafave III dated company by its share of total exports of under administrative protective order November 15, 1994. subject merchandise to the United Thai Melon, Thai American, Thai States. The net subsidy received on no later than 10 days after the Synthetic, and Thai Blanket have EPCs for this administrative review is representative’s client or employer applied for tax certificates at nominal 0.19%. becomes a party to the proceeding, but in no event later than the date the case rates during the period of review (POR). Preliminary Results of Review The Department will require that these briefs, under 19 CFR 355.38(c)(1994), companies repay the RTG, in an annual As a result of our review, we are due. The Department will publish adjustment, the amount in which the tax preliminarily determine that for the the final results of this administrative certificates exceed the import duties on period May 18, 1992 through December review including the results of its physically incorporated inputs. See 31, 1993, the signatories were not in analysis of issues raised in any case or verification report dated June 1, 1995. violation of the suspension agreement. rebuttal brief, or at a hearing. Due to the unusual circumstances 9. Export Packing Credits surrounding this case and the This administrative review and notice Under Section II (a) of the suspension reinstatement of the suspension are in accordance with section 751(a)(1) agreement, the producers and exporters agreement, we do not consider the of the Tariff Act (19 U.S.C. are not to apply for, or receive, Export calculation of EPCs in this POR to 1675(a)(1)(1994)) and 19 CFR Packing Credits (EPCs) from the BOT constitute a violation of the agreement 355.22(1994). that permit the rediscounting of within the meaning of 19 CFR Section Dated: July 26, 1995. promissory notes arising from 355.19 (d)(1994). However, we note that Susan G. Esserman, Section II (a) of the suspension shipments of subject merchandise to the Assistant Secretary for Import agreement prohibits participation by United States. Administration. EPCs are pre-shipment short-term any signatory in the EPC program at loans available to exporters for a noncommercial rates and terms for [FR Doc. 95–19016 Filed 8–1–95; 8:45 am] maximum of 180 days from the date of subject merchandise. Thus, in future BILLING CODE 3510±DS±P issuance. Under the EPC program, reviews, the signatories shall follow commercial banks issue loans based on Section II (a) of the suspension promissory notes from creditworthy agreement or they will be found in exporters. Such notes have to be violation of the agreement. 39366 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices National Oceanic and Atmospheric Dated: July 26, 1995. only in the implementation of certain of Administration Ann D. Terbush, its provisions. Rita D. Hayes, [I.D. 051595K] Chief, Permits & Documentation Division, Office of Protected Resources, National Chairman, Committee for the Implementation Marine Mammals and Endangered Marine Fisheries Service. of Textile Agreements. Species; Permits [FR Doc. 95–18898 Filed 8–1–95; 8:45 am] Committee for the Implementation of Textile BILLING CODE 3510±22±F Agreements AGENCY: National Marine Fisheries July 27, 1995. Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commissioner of Customs, Department of the Treasury, Washington, DC Commerce. COMMITTEE FOR THE 20229. ACTION: Issuance of scientific research IMPLEMENTATION OF TEXTILE Dear Commissioner: This directive permit no. 958 (P476B). AGREEMENTS amends, but does not cancel, the directive issued to you on December 15, 1994, by the SUMMARY: Notice is hereby given that Adjustment of Import Limits for Certain Chairman, Committee for the Implementation the University of Washington, Cotton and Man-Made Fiber Textile of Textile Agreements. That directive Washington Cooperative Fish & Wildlife concerns imports of certain cotton and man- Products Produced or Manufactured in Research Unit, School of Fisheries, WH– made fiber textile products, produced or Nepal 10, Seattle, WA 98195 (Principal manufactured in Nepal and exported during the twelve-month period which began on Investigator: Mr. Glenn VanBlaricom) July 27, 1995. has been issued a permit to harass up to January 1, 1995 and extends through AGENCY: Committee for the December 31, 1995. 276 gray whales (Eschrichtius robustus) Effective on August 3, 1995, you are for purposes of scientific research. Implementation of Textile Agreements (CITA). directed to amend the directive dated ADDRESSES: The permit and related December 15, 1994 to adjust the limits for the documents are available for review ACTION: Issuing a directive to the following categories, as provided under the upon written request or by appointment Commissioner of Customs adjusting terms of the current bilateral agreement in the following offices: limits. between the Governments of the United Permits Division, Office of Protected States and Nepal: Resources, NMFS, 1315 East-West EFFECTIVE DATE: August 3, 1995. Highway, Room 13130, Silver Spring, MD 20910 (301/713–2289); FOR FURTHER INFORMATION CONTACT: Category Adjusted twelve-month Director, Northwest Region, NMFS, Janet Heinzen, International Trade limit 1 7600 Sand Point Way NE, BIN C15700, Specialist, Office of Textiles and Bldg 1, Seattle, WA 99115–0070 (206/ Apparel, U.S. Department of Commerce, 336/636 ...... 200,225 dozen. 526–6150); and (202) 482–4212. For information on the 341 ...... 878,725 dozen. quota status of these limits, refer to the Director, Southwest Region, NMFS, 1 The limits have not been adjusted to ac- 501 W. Ocean Blvd., Long Beach, CA Quota Status Reports posted on the count for any imports exported after December 90802–4213 (310/980–4001). bulletin boards of each Customs port or 31, 1994. FOR FURTHER INFORMATION CONTACT: Gary call (202) 927–5850. For information on The Committee for the Implementation of Barone (301/713–2289). embargoes and quota re-openings, call Textile Agreements has determined that SUPPLEMENTARY INFORMATION: On (202) 482–3715. these actions fall within the foreign affairs September 26, 1994, notice was exception to the rulemaking provisions of 5 SUPPLEMENTARY INFORMATION: U.S.C. 553(a)(1). published in the Federal Register that Authority: Executive Order 11651 of March Sincerely, an application had been filed by the 3, 1972, as amended; section 204 of the Rita D. Hayes, above-named individual. The requested Agricultural Act of 1956, as amended (7 permit has been issued, under the Chairman, Committee for the Implementation U.S.C. 1854). of Textile Agreements. authority of the Marine Mammal [FR Doc. 95–18937 Filed 8–1–95; 8:45 am] Protection Act of 1972 (MMPA) as The current limit for Categories 336/ amended (16 U.S.C. 1361 et seq.), the 636 is being increased by application of BILLING CODE 3510±DR±F Regulations Governing the Taking and swing and carryforward. The limit for Importing of Marine Mammals (50 CFR Category 341 is being reduced to Request for Public Comments on part 216), the Endangered Species Act of account for the swing being applied. Bilateral Textile Consultations on 1973 (ESA) as amended (16 U.S.C. 1531 A description of the textile and Cotton and Man-Made Fiber Nightwear et seq.), the regulations governing apparel categories in terms of HTS and Pajamas endangered species permits (50 CFR numbers is available in the parts 217–227), the Fur Seal Act of July 27, 1995. 1966, as amended (16 U.S.C. 1151 et CORRELATION: Textile and Apparel Categories with the Harmonized Tariff AGENCY: Committee for the seq.), and the fur seal regulations at 50 Implementation of Textile Agreements CFR part 215. Schedule of the United States (see Federal Register notice 60 FR 65531, (CITA). Issuance of this Permit as required by ACTION: Notice. the ESA of 1973 was based on a finding published on December 20, 1994). Also that such Permit: (1) Was applied for in see 59 FR 66007, published on FOR FURTHER INFORMATION CONTACT: good faith; (2) will not operate to the December 22, 1994. Anne Novak, International Trade disadvantage of the endangered species The letter to the Commissioner of Specialist, Office of Textiles and which are the subject of this permit; and Customs and the actions taken pursuant Apparel, U.S. Department of Commerce, (3) is consistent with the purposes and to it are not designed to implement all (202) 482–4212. For information on policies set forth in Section 2 of the of the provisions of the bilateral categories for which consultations have ESA. agreement, but are designed to assist been requested, call (202) 482–3740. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39367 SUPPLEMENTARY INFORMATION: The solicitation of comments Total imports from these countries Authority: Executive Order 11651 of March regarding any aspect of the agreement or increased from 377,536 dozen in 1992 to 3, 1972, as amended; section 204 of the the implementation thereof is not a 1,014,361 dozen in 1994, a sharp and Agricultural Act of 1956, as amended (7 waiver in any respect of the exemption substantial increase of 169 percent. U.S.C. 1854). contained in 5 U.S.C. 553(a)(1) relating During the year ending March 1995 On June 29, 1995, under the terms of to matters which constitute ‘‘a foreign imports from these countries increased Article 6 of the Uruguay Round affairs function of the United States.’’ 52 percent when compared with the Agreement on Textiles and Clothing The United States remains committed same period a year earlier. Together (ATC) and the Uruguay Round to finding a solution concerning their year ending March 1995 imports Agreements Act, the Government of the Categories 351/651. Should such a were 9.1 percent of total Category 351/ United States requested consultations solution be reached in consultations 651 imports and were 9.9 of total U.S. with the Government of Costa Rica with with the Government of Costa Rica, production of Category 351/651 in respect to cotton and man-made fiber further notice will be published in the calendar year 1994. Federal Register. nightwear and pajamas in Categories [FR Doc. 95–18938 Filed 8–1–95; 8:45 am] 351/651, produced or manufactured in A description of the textile and Costa Rica. apparel categories in terms of HTS BILLING CODE 3510±DR±F The purpose of this notice is to advise numbers is available in the the public that, pursuant to the ATC, if CORRELATION: Textile and Apparel no solution is agreed upon in Categories with the Harmonized Tariff DEPARTMENT OF DEFENSE consultations with the Government of Schedule of the United States (see Costa Rica, the Committee for the Federal Register notice 59 FR 65531, Department of the Army Implementation of Textile Agreements published on December 20, 1994). may later establish a limit for the entry Rita D. Hayes, Privacy Act of 1974; Notice to Amend and withdrawal from warehouse for Chairman, Committee for the Implementation Systems of Records consumption of cotton and man-made of Textile Agreements. fiber textile products in Categories 351/ Summary Statement of Serious Damage AGENCY: Department of the Army, DOD. 651, produced or manufactured in Costa Rica and exported during the twelve- Cotton and Manmade Fiber Pajamas and ACTION: Notice to amend systems of Other Nightwear—Category 351/651 month period which began on June 29, records. 1995 and extends through June 28, June 1995 1996, at a level of not less than 170,979 The initial determination of serious SUMMARY: The Department of the Army dozen. damage, or actual threat thereof, to the is amending system of records notice in A summary statement of serious U.S. industry producing cotton and its existing inventory of record systems damage, or actual threat thereof, manmade fiber pajamas and other subject to the Privacy Act of 1974, (5 concerning Categories 351/651 follows nightwear, Category 351/651, was made U.S.C. 552a), as amended. this notice. in March 1995. Pursuant to Article 6, Anyone wishing to comment or paragraph 5, of the Agreement on DATES: This proposed action will be provide data or information regarding Textiles and Clothing, the March 1995 effective without further notice on the treatment of Categories 351/651, or statement of serious damage, or actual September 1, 1995, unless comments are to comment on domestic production or threat thereof, for cotton and manmade received which result in a contrary availability of products included in fiber pajamas and other nightwear, determination. Category 351/651, is herein updated to Categories 351/651, is invited to submit ADDRESSES: Privacy Act Officer, U.S. include Costa Rica to which serious 10 copies of such comments or Army Information Systems Command, information to Rita D. Hayes, Chairman, damage, or actual threat thereof, is attributed. ATTN: ASOP-MP, Fort Huachuca, AZ Committee for the Implementation of 85613–5000. Textile Agreements, U.S. Department of At the time of the initial Commerce, Washington, DC 20230; determination of serious damage, or FOR FURTHER INFORMATION CONTACT: Ms. ATTN: Helen L. LeGrande. The actual threat thereof, imports from Costa Pat Turner at (602) 538–6856 or DSN comments received will be considered Rica were down. Imports from Costa 879–6856. in the context of the consultations with Rica are now surging, increasing 17 SUPPLEMENTARY INFORMATION: The the Government of Costa Rica. percent for the year ending March 1995 Because the exact timing of the when compared with the same period in Department of the Army systems of consultations is not yet certain, a year earlier, and are up 129 percent records notices subject to the Privacy comments should be submitted during the first quarter of 1995 when Act of 1974, (5 U.S.C. 552a), as promptly. Comments or information compared with the same period in 1994. amended, have been published in the submitted in response to this notice will Serious damage, or actual threat Federal Register and are available from be available for public inspection in the thereof, to the domestic industry the address above. Office of Textiles and Apparel, room resulting from the sharp and substantial The specific changes to the record H3100, U.S. Department of Commerce, increase in imports of cotton and system being amended are set forth 14th and Constitution Avenue, NW., manmade fiber pajamas and other Washington, DC. nightwear is attributed to imports from below. The proposed amendments are Further comments may be invited Jamaica, El Salvador, Costa Rica, and not within the purview of subsection (r) regarding particular comments or Honduras. The combination of surging of the Privacy Act of 1974, (5 U.S.C. information received from the public imports and low priced goods from 552a), as amended, which requires the which the Committee for the these countries have resulted in loss of submission of an altered system report. Implementation of Textile Agreements domestic output, market share, considers appropriate for further investment, employment, man-hours consideration. worked, and total annual wages. 39368 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Dated: July 26, 1995. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: for 6 years; cash receipt vouchers are 10 U.S.C. 3012, 3013, 8012, and 8013; retained for 3 years; repair/replacement Patricia Toppings, and E.O. 9397. order slips are held 2 years. All records Alternate OSD Federal Register Liaison are destroyed by shredding. PURPOSE(S): Officer, Department of Defense. To record customer transactions/ SYSTEM MANAGER(S) AND ADDRESS: Commander, Army and Air Force AAFES 1609.02 payment for layaway and special orders; to determine payment status before Exchange Service, PO Box 660202, SYSTEM NAME: finalizing transactions; to identify Dallas, TX 75266–0202. account delinquencies and prepare AAFES Customer Service (February NOTIFICATION PROCEDURE: customer reminder notices; to mail 22, 1993, 58 FR 10023). Individuals seeking to determine * * * * * refunds on canceled layaway or special orders; to process purchase refunds; to whether information about themselves is contained in this system should CHANGES document receipt from customer of merchandise subsequently returned to address written inquiries to the CATEGORIES OF RECORDS IN THE SYSTEM: Commander, Army and Air Force Add ’Social Security Numbers.’ vendors for repair or replacement and initiate follow-up actions, and to Exchange Service, ATTN: SD, PO Box * * * * * monitor individual customer refunds. 660202, Dallas, TX 75266–0202. Individual should provide name and AUTHORITY FOR MAINTENANCE OF THE SYSTEM: ROUTINE USES OF RECORDS MAINTAINED IN THE sufficient details or purchase to enable Add ’, and 8013; and E.O. 9397.’ SYSTEM, INCLUDING CATEGORIES OF USERS AND locating pertinent records, current THE PURPOSES OF SUCH USES: address and telephone number. PURPOSE(S): In addition to those disclosures RECORD ACCESS PROCEDURES: Add ’, and to monitor individual generally permitted under 5 U.S.C. customer refunds.’ 552a(b) of the Privacy Act, these records Individuals seeking access to * * * * * or information contained therein may information about themselves contained in this system should address written RETREIVABILITY: specifically be disclosed outside the DoD as a routine use pursuant to 5 inquiries to the Commander, Army and Add ’, Social Security Numbers’ U.S.C. 552a(b)(3) as follows: Air Force Exchange Service, ATTN: SD, * * * * * The ‘Blanket Routine Uses’ set forth at PO Box 660202, Dallas, TX 75266–0202. Individual should provide name and NOTIFICATION PROCEDURE: the beginning of the Army’s compilation of systems of records notices apply to sufficient details or purchase to enable Add between ’Service, P.O.’ ’ATTN: this system. locating pertinent records, current SD,’ address and telephone number. DISCLOSURE TO CONSUMER REPORTING RECORDS ACCESS PROCEDURE: AGENCIES: CONTESTING RECORD PROCEDURES: Add between ’Service, P.O.’ ’ATTN: Disclosure pursuant to 5 U.S.C. The Army’s rules for accessing SD,’ 552a(b)(12) may be made from this records and for contesting contents and * * * * * system to ‘consumer reporting agencies’ appealing initial agency determinations are contained in Army Regulation 340– AAFES 1609.02 as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal 21; 32 CFR part 505; or may be obtained SYSTEM NAME: Claims Collection Act of 1966 (31 U.S.C. from the system manager. AAFES Customer Service. 3701(a)(3)). RECORD SOURCE CATEGORIES: SYSTEM LOCATION: POLICIES AND PRACTICES FOR STORING, From the individual; vendor. RETRIEVING, ACCESSING, RETAINING, AND Headquarters, Army and Air Force EXEMPTIONS CLAIMED FOR THE SYSTEM: DISPOSING OF RECORDS IN THE SYSTEM: Exchange Service, P.O. Box 660202, None. STORAGE: Dallas, TX 75266–0202; HQ Army and [FR Doc. 95–18968 Filed 8–1–95; 8:45 am] Air Force Exchange Service-Europe, Paper records in file boxes and BILLING CODE 5000±04±F Pinder Barracks, Schwabacherster 20 cabinets. 8502 Zirndorf; regional, area, post and RETRIEVABILITY: base Exchanges in the United States. Public Information Collection By customer’s surname, document CATEGORIES OF INDIVIDUALS COVERED BY THE Requirement Submitted to the Office of control number, Social Security Number Management and Budget (OMB) for SYSTEM: and/or due date. Army and Air Force Exchange Service Review SAFEGUARDS: (AAFES) customers who purchase ACTION: Notice. merchandise on a time payment, Records are maintained in secured layaway, or special order basis, or who areas, accessible only to authorized The Department of Defense has need purchase adjustments or refunds. personnel having need for the submitted to OMB for clearance, the information in the performance of their following proposal for collection of CATEGORIES OF RECORDS IN THE SYSTEM: duties. information under the provisions of the Individual Social Security numbers, Paperwork Reduction Act (44 U.S.C. copies of layaway tickets, requests for RETENTION AND DISPOSAL: Chapter 35). refunds, special order forms/ Cancelled or completed layaway Title and OMB Control Number: DoD procurement request/logs, cash receipt/ tickets are held for 6 months after FAR Supplement, Part 232, Contract charge or credit vouchers, repair cancellation or delivery of merchandise; Financing, and Related Clause at vouchers, warranty documents, purchase orders are retained for 2 years; 252.232–7007; OMB Control Number correspondence between AAFES and refund vouchers are retained for 6 years; 0704–0359. the customer and/or vendor. returned merchandise slips are retained Type of Request: Extension. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39369 Number of Respondents: 800. to Former DoD Employees, and Related Annual Burden Hours: 22. Responses per Respondent: 1. Clause at 252.203–7000; OMB Control Needs and Uses: This requirement Annual Responses: 800. Number 0704–0277. provides for the collection of Average Burden per Response: 1 hour. Type of Request: Extension. information from contractors performing Annual Burden Hours: 800. Number of Respondents: 1,000. offsite hazardous waste treatment or Needs and Uses: This requirement Responses per Respondent: 1. disposal services for DoD. It will be provides for the collection of Annual Responses: 1,000. used to verify that such contractors have information from contractors who are Average Burden per Response: 8 adequate liability insurance or financial awarded incrementally funded, fixed- hours. assurance to cover sudden and non- price DoD contracts. The information Annual Burden Hours: 8,000. sudden accidental occurrences, in collected hereby, constitutes a Needs and Uses: This requirement accordance with 10 USC 2708. notification of the Federal Government provides for the collection of Affected Public: Business or other for- by the contractor, when the work under information from major contractors who profit. the contract will, within ninety days, employ certain former DoD employees. Frequency: On occasion. reach the point at which the amount The information collected hereby, Respondent’s Obligation: Required to payable by the Government (including constitutes an annual report to the obtain or retain benefits. any termination costs) approximates 85 Secretary of Defense of the employment OMB Desk Officer: Mr. Peter N. Weiss. percent of the funds currently allotted to of these individuals. Written comments and the contract. This information will also Affected Public: Business or other for- recommendations on the proposed be used to determine what course of profit. information collection should be sent to Frequency: Annually. action the Government will take; i.e., Mr. Weiss at the Office of Management Respondent’s Obligation: Mandatory. allot additional funds for continued and Budget, Desk Officer for DoD, Room OMB Desk Officer: Mr. Peter N. 10236, New Executive Office Building, performance, terminate the contract, or Weiss. terminate certain contract line items. Washington, DC 20503. Written comments and DoD Clearance Officer: Mr. William Affected Public: Business or other for- recommendations on the proposed profit; Not-for-profit institutions. Pearce. information collection should be sent to Written requests for copies of the Frequency: On occasion. Mr. Weiss at the Office of Management Respondent’s Obligation: Required to information collection proposal should and Budget, Desk Officer for DoD, Room obtain or retain benefits. be sent to Mr. Pearce, WHS/DIOR, 1215 10236, New Executive Office Building, OMB Desk Officer: Mr. Peter N. Jefferson Davis Highway, Suite 1204, Washington, DC 20503. Arlington, VA 22202–4302. Weiss. DoD Clearance Officer: Mr. William Written comments and Pearce. Dated: July 28, 1995. recommendations on the proposed Written requests for copies of the Patricia L. Toppings, information collection should be sent to information collection proposal should Alternate OSD Federal Register Liaison Mr. Weiss at the Office of Management be sent to Mr. Pearce, WHS/DIOR, 1215 Officer, Department of Defense. and Budget, Desk Officer for DoD, Room Jefferson Davis Highway, Suite 1204, [FR Doc. 95–18966 Filed 8–1–95; 8:45 am] 10236, New Executive Office Building, Arlington, VA 22202–4302. BILLING CODE 5000±04±P Washington, DC 20503. DoD Clearance Officer: Mr. William Dated: July 28, 1995. Pearce. Patricia L. Toppings, Public Information Collection Written requests for copies of the Alternate OSD Federal Register Liaison Requirement Submitted to the Office of information collection proposal should Officer, Department of Defense. Management and Budget (OMB) for be sent to Mr. Pearce, WHS/DIOR, 1215 [FR Doc. 95–18962 Filed 8–1–95; 8:45 am] Review Jefferson Davis Highway, Suite 1204, BILLING CODE 5000±04±P Arlington, VA 22202–4302. ACTION: Notice. Dated: July 28, 1995. The Department of Defense has Public Information Collection submitted to OMB for clearance, the Patricia L. Toppings, Requirement Submitted to the Office of following proposal for collection of Alternate OSD Federal Register Liaison Management and Budget (OMB) for information under the provisions of the Officer, Department of Defense. Review [FR Doc. 95–18963 Filed 8–1–95; 8:45 am] Paperwork Reduction Act (44 U.S.C. BILLING CODE 5000±04±P ACTION: Notice. Chapter 35). Title, Applicable Forms, and OMB The Department of Defense has Control Number: DoD FAR Supplement, Public Information Collection submitted to OMB for clearance, the Appendix F, Material Inspection and Requirement Submitted to the Office of following proposal for collection of Receiving Report; DD Forms 250, 250C, Management and Budget (OMB) for information under the provisions of the and 250–1; OMB Control Number 0704– Review Paperwork Reduction Act (44 U.S.C. 0248. Chapter 35). Type of Request: Expedited ACTION: Notice. Title and OMB Control Number: DoD Processing—Approval Date Requested: FAR Supplement, Subpart 223.70, 30 days following publication in the The Department of Defense has Hazardous Waste Disposal, and Clause Federal Register. submitted to OMB for clearance, the at 252.223–7005; OMB Control Number Number of Respondents: 7,800,000. following proposal for collection of 0704–0343. Responses per Respondent: 1. information under the provisions of the Type of Request: Extension Annual Responses: 7,800,000. Paperwork Reduction Act (44 U.S.C. Number of Respondent: 45. Average Burden per Response: 8 Chapter 35). Responses per Respondent: 1. minutes. Title and OMB Control Number: DoD Annual Responses: 45. Annual Burden Hours: 988,000 FAR Supplement, Subpart 203.170, Average Burden per Response: 30 Needs and uses: This requirement Statutory Prohibitions on Compensation minutes. provides for the collection of 39370 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices information in support of material Frequency: On occasion. 15.7, Make-or-Buy Programs, of the inspection, shipping, and receiving Respondent’s Obligation: Required to FAR— reports. It will be used to process obtain or retain benefits. (i) Sets forth circumstances under inspections, receipt of materials, and OMB Desk Officer: Mr. Peter N. Weiss. Written comments and which a Government contractor must payments to contractors. submit for approval by the contracting Affected Public: Business or other for- recommendations on the proposed officer a make-or-buy program, i.e., a profit; Not-for-profit Institutions. information collection should be sent to Frequency: On occasion. Mr. Weiss at the Office of Management written plan identifying major items to Respondent’s Obligation: Required to and Budget, Desk Officer for DoD, Room be produced or work efforts to be obtain or retain benefits. 10236, New Executive Office Building, performed in the prime contractor’s OMB Desk Officer: Mr. Peter N. Weiss. Washington, DC 20503. facilities and those to be subcontracted; Written comments and DoD Clearance Officer: Mr. William (ii) Provides guidance to contracting recommendations on the proposed Pearce. officers concerning the review and information collection should be sent to Written requests for copies of the approval of the make-or-buy programs; Mr. Weiss at the Office of Management information collection proposal should and and Budget, Desk Officer for DoD, Room be sent to Mr. Pearce, WHS/DIOR, 1215 10236, New Executive Office Building, Jefferson Davis Highway, Suite 1204, (iii) Prescribes the contract clause at Washington, DC 20503. Arlington, VA 22202–4302. FAR 52.215–21, Changes or Additions to Make-or-Buy Programs, which DoD Clearance Officer: Mr. William Dated: July 28, 1995. specifies the circumstances under Pearce. Patricia L. Toppings, Written requests for copies of the which the contractor is required to Alternate OSD Federal Register Liaison submit for the contracting officer’s information collection proposal should Officer, Department of Defense. be sent to Mr. Pearce, WHS/DIOR, 1215 advance approval a notification and [FR Doc. 95–18964 Filed 8–1–95; 8:45 am] Jefferson Davis Highway, Suite 1204, justification of any proposed change in Arlington, VA 22202–4302. BILLING CODE 5000±04±P the approved make-or-buy program. Dated: July 28, 1995. The information is used to assure the Patricia L.Toppings, DEPARTMENT OF DEFENSE lowest overall cost to the Government Alternate OSD Federal Register Liaison for required supplies and services. Officer, Department of Defense. GENERAL SERVICES B. Annual Reporting Burden [FR Doc. 95–18965 Filed 8–1–95; 8:45 am] ADMINISTRATION BILLING CODE 5000±04±P Public reporting burden for this NATIONAL AERONAUTICS AND collection of information is estimated to SPACE ADMINISTRATION average 8 hours per termination, Public Information Collection [OMB Control No. 9000±0078] including the time for reviewing Requirement Submitted to the Office of instructions, searching existing data Management and Budget (OMB) for Clearance Request for Make-or-Buy sources, gathering and maintaining the Review Program data needed, and completing and ACTION: Notice. AGENCIES: Department of Defense (DOD), reviewing the collection of information. General Services Administration (GSA), Send comments regarding this burden The Department of Defense has and National Aeronautics and Space estimate or any other aspect of this submitted to OMB for clearance, the Administration (NASA). collection of information, including following proposal for collection of ACTION: Notice of request for an suggestions for reducing this burden, to information under the provisions of the General Services Administration, FAR Paperwork Reduction Act (44 U.S.C. extension to an existing OMB clearance Secretariat, 18th & F Streets, NW, Room Chapter 35). (9000–0078). 4037, Washington, DC 20405. Title: DoD FAR Supplement, Subpart SUMMARY: Under the provisions of the The annual reporting burden is 223.72, Safeguarding Sensitive Paperwork Reduction Act of 1980 (44 estimated as follows: Respondents, 200; Conventional Arms, Ammunition, and U.S.C. 3501), the Federal Acquisition Explosives. Regulation (FAR) Secretariat has responses per respondent, 3; total Type of Request: New collection. submitted to the Office of Management annual responses, 600; preparation Number of Respondents: 230. and Budget (OMB) a request to review hours per response, 8; and total Responses per Respondent: 1. and approve an extension of a currently response burden hours, 4,800. Annual Responses: 230. approved information collection Obtaining Copies of Proposals: Average Burden per Response: 15 requirement concerning Make-or-Buy minutes. Requester may obtain copies of OMB Program. Annual Burden Hours: 58. applications or justifications from the Needs and Uses: The information FOR FURTHER INFORMATION CONTACT: General Services Administration, FAR collected hereby, is required to notify Beverly Fayson, Office of Federal Secretariat (VRS), Room 4037, the Federal Government of subcontracts Acquisition Policy, GSA (202) 501– Washington, DC 20405, telephone (202) involving arms, ammunition, and 4755. 501–4755. Please cite OMB Control No. explosives. It will be used to monitor SUPPLEMENTARY INFORMATION: 9000–0078, Make-or-Buy Program, in all contractor compliance with the correspondence. A. Purpose requirements of DoD 5100.76–M, Dated: July 24, 1995. ‘‘Physical Security of Sensitive Price, performance, and/or Beverly Fayson, Conventional Arms, Ammunition, and implementation of socio-economic Explosives.’’ policies may be affected by make-or-buy FAR Secretariat. Affected Public: Business or other for- decisions under certain Government [FR Doc. 95–18998 Filed 8–1–95; 8:45 am] profit; Not-for-profit institutions. prime contracts. Accordingly, Subpart BILLING CODE 6820±EP±M Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39371 DEPARTMENT OF DEFENSE done in September 1981 and a SEIS recommended that the existing flood done in January 1995, for both the Phase protection system be modified to protect Office of the Secretary I and Phase II General Design against an Agnes-level flood. In 1981, a Memorandums (GDM). The dam is a more detailed Phase I General Design Defense Advisory Committee on component of the Wyoming Valley Memorandum (GDM)/Feasibility Report Military Personnel Testing Levee Raising Project mitigation plan. and Final Environmental Impact ACTION: Notice. The formulation/design study will Statement (FEIS) were completed which review the recommended plans recommended that the existing flood Pursuant to Public Law 92–463, identified in the Wyoming Valley protection system be raised to protect notice is hereby given that a meeting of Inflatable Dam, Luzerne County, against an Agnes-level flood. Section the Defense Advisory Committee on Pennsylvania Reconnaissance Report, 401(a) of the Water Resources Military Personnel Testing is scheduled dated April 1991, formulate additional Development Act of 1986 (Public Law to be held from 8:30 a.m. to 4:30 p.m. plans as necessary, evaluate the 99–662) authorized the construction of on September 21, 1995 and from 8:30 associated impacts, and then provide a the project recommended in the 1981 a.m. to 4:30 p.m. on September 22, detailed analysis of the selected plan. Phase I GDM. 1995. The meeting will be held at The The selected plan will be the alternative 4. Section 102(w) of the Water Nonantum Inn, 95 Ocean Avenue, that fulfills Federal economic, Resources Development Act of 1992 Kennebunkport, Maine 04046. The engineering and environmental criteria (Public Law 102–580) modified the purpose of the meeting is to review and is preferred by both the Federal and previous authorization as follows: ‘‘to planned changes and progress in non-Federal parties. The study was direct the Secretary to complete the developing paper-and-pencil and authorized under Section 102(w) of the final phase II design memorandum for computerized enlistment tests, Water Resources Development Act of the project (including the results of a Department of Defense’s Student 1992. review of nonstructural mitigation plans for the purpose of ameliorating damages Testing Program, and renorming of the FOR FURTHER INFORMATION CONTACT: tests. Persons desiring to make oral Questions about the proposed action from induced flooding)’’. As such, the presentations or submit written and SEIS can be addressed to Ms. Susan inflatable dam is being considered as a form of mitigation for the Wyoming statements for consideration at the B. Hughes, Project Management, Valley Levee Raising project. Committee meeting must contact Dr. Baltimore District, U.S. Army Corps of 5. The Phase II GDM for the Wyoming Jane M. Arabian, Assistant Director, Engineers, ATTN: CENAB–PP–C, P.O. Accession Policy, Office of the Assistant Valley Levee Raising project, which was Box 1715, Baltimore, Maryland 21203– made available for public review in Secretary of Defense (Force Management 1715. Policy), Room 2B271, The Pentagon, November 1994, included the inflatable SUPPLEMENTARY INFORMATION: 1. The Washington, DC 20301–4000, telephone dam as a measure to mitigate against study area is located in northeastern (703) 697–9271, no later than September adverse intangible social and economic Pennsylvania. The proposed inflatable 1, 1995. impacts of the improved levee system. dam would be constructed in an area A SEIS was completed for the Phase II Dated: July 28, 1995. known as the Wyoming Valley in GDM. The proposed mitigation plan was Patricia L. Toppings, Luzerne County, which extends along addressed within the GDM/SEIS. Alternate OSD Federal Register Liaison the Susquehanna River from the However, detailed investigations of the Officer, Department of Defense. Borough of Pittston southwest proposed inflatable dam were not. [FR Doc. 95–18967 Filed 8–1–95; 8:45 am] approximately 15 miles to Nanticoke 6. The SEIS currently being prepared BILLING CODE 5000±04±M City. The Wyoming Valley is heavily will build upon the previous developed, primarily by urban environmental impact statements and residential, commercial, and industrial address cumulative impacts related to Department of the Army facilities. There are also several the entire project. A range of abandoned and active coal mining alternatives will be analyzed and Corps of Engineers, Intent to Prepare operations in the valley. discussed. The formulation/design a Supplemental Environmental Impact 2. The study area was plagued with report will review the reconnaissance Statement (SEIS) for the Proposed recurring floods from the Susquehanna report and use it as the foundation for Wyoming Valley Inflatable Dam in River for many years until a series of its analysis. Based on the Luzerne County, Pennsylvania Federally authorized flood protection reconnaissance report, preliminary AGENCY: U.S. Army Corps of Engineers, measures were constructed in the formulation indicates that the dam DOD. 1930’s, 1940’s and 1950’s. The existing would be located 220 feet upstream of ACTION: Notice of intent. flood damage reduction system is the abandoned Delaware and Hudson composed of four projects, which are railroad bridge crossing the SUMMARY: The Baltimore District U.S. located in the Boroughs of Kingston and Susquehanna River. The dam would Army Corps of Engineers is preparing a Edwardsville; the Boroughs of consist of four inflatable rubber formulation/design report with an Swoyersville and Forty Fort; the segments anchored to reinforce concrete integrated Supplemental Environmental Borough of Plymouth; and the piers, abutments and sill, spanning a Impact Statement (SEIS) for the Township of Hanover and the City of total length of 850 feet across the construction of an inflatable dam in the Wilkes-Barre. Susquehanna River. Dam heights Wyoming Valley region of the 3. In June 1972, Tropical Storm between 6.5 feet, 8 feet, and 10 feet will Susquehanna River Basin. This study is Agnes, the largest flood of record, be investigated. The boating pool being accomplished as part of the overtopped the existing flood protection created by the 6.5-foot dam would continuing project process. The system by four to five feet. In December extend approximately 4.4 miles National Environmental Policy Act of 1972, the Baltimore District upstream to Forty Fort and would (NEPA) document is intended to completed a document titled ‘‘Wyoming provide about 365 acres of boating area supplement previous NEPA work Valley Flood Control, Susquehanna (total surface area=410 acres). The accomplished, a final EIS which was River, Pennsylvania’’ which deepest portion of the lake would be 39372 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices near the activity centers at Kirby, DELAWARE RIVER BASIN periods of seasonal low water demand, Nesbitt, and River Commons Park. The COMMISSION the applicant proposes to inject treated higher alternatives would require larger water from existing Well Nos. 7 and 10 foundations to support larger bags and Notice of Commission Meeting and into Well No. 12 at a rate of 250 gallons the deeper impoundment provided by Public Hearing per minute (gpm) to store the higher quality water within the aquifer for later the dam. The boating pool created by Notice is hereby given that the withdrawal during periods of seasonal the 10-foot dam would extend Delaware River Basin Commission will high water demand. The project is approximately 5.5 miles upstream near hold a public hearing on Wednesday, Monocanock Island and would provide located in Jackson Township, Ocean August 9, 1995. The hearing will be part County, New Jersey. about 495 acres of boating area (total of the Commission’s regular business 4. Rosenberger’s Dairies, Inc. D–95–1. surface area=520 acres). meeting which is open to the public and An application for approval of a ground 7. The Baltimore District is preparing scheduled to begin at 11 a.m. in the water withdrawal project to supply up a SEIS which will document the Goddard Conference Room of the to 2.6 mg/30 days of water to the alternatives analysis and describe the Commission’s offices at 25 State Police applicant’s dairy production and impacts of the proposed projects on Drive, West Trenton, New Jersey. processing facility from new Well No. 4, An informal conference among the environmental and cultural resources in and to limit the withdrawal from all Commissioners and staff will be held at the study area and the overall public wells to 3.4 mg/30 days. The project is 10 a.m. at the same location and will interest. If applicable, the SEIS will also located in Hatfield Township, include status reports on the Christina apply guidelines issued by the Montgomery County, in the River Basin study and proposed Lehigh Southeastern Pennsylvania Ground Environmental Protection Agency, River Basin flood warning system as under authority of Section 404 of the Water Protected Area. well as an opportunity for public 5. Crompton & Knowles Corporation Clean Water Act of 1977 (Public Law dialogue. D–95–8. A project to modify and expand 95–217). The subjects of the hearing will be as the applicant’s existing 0.18 mgd 8. A notice will be distributed to follows: Gibraltar industrial wastewater interested private individuals and Applications for Approval of the treatment plant (IWTP) by replacing an organizations, as well as Federal, state, Following Projects Pursuant to Article earthen bio-lagoon surface and local agencies, informing them of 10.3, Article 11 and/or Section 3.8 of the impoundment with above-ground tanks. our intent to prepare a SEIS, and Compact The IWTP will continue to serve only requesting their comments. The the applicant’s dye and chemical 1. C S Water & Sewer Associates D– Baltimore District invites potentially manufacturing plant and will discharge 76–21 (Revised). An application to affected Federal, state, and local at an average monthly rate of 0.22 mgd revise DRBC Docket No. D–76–21 to agencies and other interested via an existing outfall on the Schuylkill approve an existing discharge from a 0.1 organizations and parties to participate River. The IWTP is located million gallons per day (mgd) sewage approximately one mile east of the in this study. Agencies that will be treatment plant (STP) to an unnamed involved in the study and SEIS process Town of Gibraltar in Robeson tributary of the Delaware River. The STP Township, Berks County, Pennsylvania. include, but are not limited to the was originally approved predicated 6. Tel Hai Retirement Community D– following: U.S. Environmental upon a discharge directly to the 95–21. A project to modify and expand Protection Agency; U.S. Fish and Delaware River. The project STP is an existing 50,000 gallons per day (gpd) Wildlife Service; U.S. Geological located in Lackawaxen Township, Pike tertiary level STP to provide an Survey; U.S. Natural Resources County, Pennsylvania. The STP will additional 20,000 gpd capacity in order Conservation Service; U.S. National continue to serve the community of to serve a new apartment complex and Park Service; Pennsylvania Department Masthope Rapids. community center for the applicant’s of Environmental Resources; 2. Borough of Shoemakersville D–90– retirement community. The STP will Pennsylvania Historical and Museum 7 CP RENEWAL. An application for the continue to serve only the applicant’s Commission; Pennsylvania Fish and renewal of a ground water withdrawal retirement community in Honey Brook Boat Commission; Pennsylvania Game project to supply up to 7.5 million Township, Chester County, Commission; Luzerne County, gallons (mg)/30 days of water to the Pennsylvania. The expanded STP will Pennsylvania; and the Susquehanna applicant’s distribution system from continue to provide tertiary treatment River Basin Commission. Additional Well Nos. 1, 3, 4, 5 and 6. Commission and discharge to Two Log Run, a study newsletters, notices and approval on March 28, 1990 was limited tributary of the West Branch workshops may be included as part of to five years. The applicant requests that Brandywine Creek. the public involvement program, as the total withdrawal from all wells 7. Connaught Laboratories Inc. D–95– needed. remain limited to 7.5 mg/30 days. The 34. A project to modify the applicant’s project is located in the Borough of existing 0.15 mgd IWTP which will 9. The draft SEIS is tentatively Shoemakersville and Perry Township, continue to serve both the applicant’s scheduled to be available for public Berks County, Pennsylvania. vaccine production operations and the review in early summer 1996. 3. Jackson Township Municipal adjacent Salk Institute laboratory. The Randall R. Inouye, Utilities Authority D–94–18 CP. An IWTP is located just east of State Route Colonel, Corps of Engineers, District Engineer. application for approval of a ground 611 in Pocono Township, Monroe [FR Doc. 95–18940 Filed 8–1–95; 8:45 am] water withdrawal project to supply up County, Pennsylvania. The treated to 21.6 mg/30 days of water to the Six BILLING CODE 3710±41±M effluent will continue to discharge to Flags Great Adventure theme park from Swiftwater Creek and the permitted new recharge/withdrawal Well No. 12, discharge volume and effluent and to retain the existing withdrawal characteristics will remain unchanged. limit of 26.42 mg/30 days from all 8. George School D–95–39. An Delaware River Basin wells. During application for approval of a ground Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39373 water withdrawal project to supply up institutional participation application An institution must show proof of to 5.18 mg/30 days of water to the and other documents required for an mailing its FISAP and the required applicant’s pond from Newtown eligibility and certification signed documents by September 29, Artesian Water Company’s Well No. 10 determination by the closing date that 1995. Proof of mailing consists of one of which is located in Newtown will appear in a separate notice in the the following: (1) A legible mail receipt Township. The proposed allocation of Federal Register. with the date of mailing stamped by the ground water is an increase from 1.37 The Secretary further gives notice that U.S. Postal Service, (2) a legibly dated mg/30 days to 5.18 mg/30 days. The an institution that had a Federal Perkins U.S. Postal Service postmark, (3) a dated pond will be used for teaching Loan fund or expended FWS or FSEOG shipping label, invoice, or receipt from ecological and environmental courses. funds during the 1994–1995 award year a commercial carrier, or (4) any other The project well is located in Newtown (July 1, 1994, through June 30, 1995) is proof of mailing acceptable to the Township, Bucks County, in the required to submit a Fiscal Operations Secretary of Education. Southeastern Pennsylvania Ground Report to the Secretary to report its If a FISAP and the required signed Water Protected Area. program expenditures as of June 30, documents are sent through the U.S. Documents relating to these items 1995. Postal Service, the Secretary does not may be examined at the Commission’s Applicants that did not participate in accept either of the following as proof offices. Preliminary dockets are the Federal Perkins Loan Program, FWS of mailing: (1) A private metered available in single copies upon request. Program, or FSEOG Program in the postmark, or (2) a mail receipt that is Please contact George C. Elias 1994–95 award year will be required to not dated by the U.S. Postal Service. An concerning docket-related questions. submit data for the application portion institution should note that the U.S. Persons wishing to testify at this hearing of the FISAP only. The Department is Postal Service does not uniformly are requested to register with the mailing only the application portion of provide a dated postmark. Before Secretary prior to the hearing. the FISAP to first-time applicants. relying on this method, an institution Dated: July 25, 1995. In addition, an institution must should check with its local post office. submit one original completed FISAP Susan M. Weisman, An institution is encouraged to use signature page and one original signed certified or at least first-class mail. Secretary. combined lobbying, debarment, and FISAP Delivered by Hand. A diskette [FR Doc. 95–18941 Filed 8–1–95; 8:45 am] drug-free workplace certifications form or tape containing FISAP data along BILLING CODE 6360±01±P (ED 80–0013 and referred to collectively with one original completed FISAP as the ‘‘compliance certifications’’ form) signature page and one original signed for the 1996–97 award year. ‘‘compliance certifications’’ form must DEPARTMENT OF EDUCATION The Federal Perkins Loan, FWS, and be taken to Universal Automation Labs FSEOG programs are authorized by (UAL), Suite 500, 8300 Colesville Road, Office of Postsecondary Education; parts E and C, and part A, subpart 2, Silver Spring, Maryland. Federal Perkins Loan, Federal Work- respectively, of title IV of the Higher Hand-delivered FISAP diskettes or Study, and Federal Supplemental Education Act of 1965, as amended. tapes and the required signed Educational Opportunity Grant DATES: Closing Date and Methods for documents will be accepted between 9 Programs Submitting a FISAP and Required a.m. and 5 p.m. daily (Eastern time), AGENCY: Department of Education. Signed Documents. An institution may except Saturdays, Sundays, and Federal ACTION: Notice of Closing Date for Filing submit its FISAP by— holidays. A FISAP and the required the Fiscal Operations Report for 1994– (1) Submitting the completed data on signed documents that are hand- 95 and Application to Participate for a data diskette provided by the delivered will not be accepted after 5 1996–97 (FISAP) in the Federal Perkins Department of Education (the p.m. on September 29, l995. Loan, Federal Supplemental Department); FISAP Delivered Electronically. A Educational Opportunity Grant (2) Creating a tape from data stored on FISAP that is delivered electronically (FSEOG), and Federal Work-Study a mainframe computer and submitting must be transmitted by either a personal (FWS) Programs (ED FORM 646–1; OMB that tape in a format defined by the or mainframe computer to the host No. 1840–0073). Department; or Department computer using a modem. If (3) Transmitting the data from a you are transmitting electronically via a SUMMARY: The Secretary gives notice to personal or mainframe computer modem, the data transmission must be institutions of higher education of the through a modem. completed prior to midnight, Eastern deadline for an institution to apply for To ensure consideration for 1996–97 time, on September 29, 1995. (For fiscal year 1996 funds—for use in the funds, an institution must submit an purposes of this notice, this deadline 1996–97 award year (July 1, 1996 electronic FISAP by data diskette, tape, means that an institution has all of through June 30, 1997)—under the or modem, as well as one original September 29, 1995, to transmit Federal Perkins Loan, FWS, and FSEOG completed FISAP signature page and electronically via a modem.) The programs. Under these programs, the one original signed ‘‘compliance institution should print a copy of its Secretary allocates funds to institutions certifications’’ form by September 29, transmission receipt for its records. In for students who need financial aid to 1995. addition, one original completed FISAP meet the costs of postsecondary ADDRESSES: FISAP Delivered by Mail. A signature page and one original signed education. An institution is not required diskette or tape containing FISAP data ‘‘compliance certifications’’ form must to establish eligibility prior to applying along with one original completed be mailed to Electronic FISAP, c/o for funds. However, the Secretary will FISAP signature page and one original Universal Automation Labs (UAL), Suite not allocate funds under the Federal signed ‘‘compliance certifications’’ form 500, 8300 Colesville Road, Silver Perkins Loan, FWS, and FSEOG must be addressed to FISAP, c/o Spring, Maryland 20910, by September programs for the 1996–97 award year to Universal Automation Labs (UAL), Suite 29, l995. An institution must show any institution that is not currently 500, 8300 Colesville Road, Silver proof of mailing the required signed eligible unless the institution files its Spring, Maryland 20910. documents by the deadline. Proof of 39374 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices mailing is explained under the heading Dated: July 27, 1995. between 8 a.m. and 8 p.m., Eastern ‘‘FISAP Delivered by Mail.’’ David A. Longanecker, Time, Monday through Friday. SUPPLEMENTARY INFORMATION: FISAP Assistant Secretary for Postsecondary FOR FURTHER INFORMATION CONTACT: The materials are mailed by the Department Education. amendments to the Directory are in late July 1995. An institution must [FR Doc. 95–18928 Filed 8–1–95; 8:45 am] available at (l) each institution of higher prepare and submit its FISAP in BILLING CODE 4000±01±P accordance with the information education participating in the Federal included in the package. Perkins Loan Program, (2) each of the The program information package is Office of Postsecondary Education fifty-seven (57) State and Territory intended to aid applicants in applying Departments of Education, (3) each of for assistance under these programs. Availability of the Amendments to the the major Federal Perkins Loan billing Nothing in the program information National Direct Student Loan and services, and (4) the U.S. Department of package is intended to impose any Federal Perkins Loan Programs Education. paperwork, application content, Directory of Designated Low-Income Schools for Teacher Cancellation SUPPLEMENTARY INFORMATION: The reporting, or grantee performance Secretary of Education published a requirements beyond those specifically Benefits for the 1994±95 School Year notice in the Federal Register (60 FR imposed under the statute and AGENCY: Department of Education. 5659) on January 30, l995, indicating regulations governing the programs. ACTION: Notice of availability of the that the Directory was available. The Applicable Regulations amendments to the l994–95 National Secretary has revised the Directory due Direct Student Loan and Federal Perkins The following regulations apply to to the opening and closing of schools, Loan Programs Directory of Designated these programs: school name changes, and the need for (1) Student Assistance General Low-Income Schools. other corrections. These revisions are Provisions, 34 CFR Part 668. SUMMARY: Institutions and borrowers listed in the amendments to the (2) Federal Perkins Loan Program, 34 participating in the Federal Perkins Directory. CFR Part 674. Loan and National Direct Student Loan The procedures for selecting the (3) Federal Work-Study Programs, 34 Programs and other interested persons schools that qualify borrowers for CFR Part 675. are advised that they may obtain (4) Federal Supplemental Educational cancellation benefits are described in information regarding the amendments Opportunity Grant Program, 34 CFR Part the Federal Perkins Loan Program to the National Direct Student Loan and 676. regulations at 34 CFR 674.53 and (5) Institutional Eligibility Under the Federal Perkins Loan Programs 674.54. The Secretary has determined Higher Education Act of 1965, as Directory of Designated Low-Income that for the l994–95 academic year full- amended, 34 CFR Part 600. Schools for Teacher Cancellation time teaching in the schools set forth in (6) New Restrictions on Lobbying, 34 Benefits for the l994–95 School Year the Directory and the amendments to (Directory). The amendments identify CFR Part 82. the Directory qualifies a borrower for changes in the list of schools that (7) Governmentwide Debarment and cancellation benefits. Suspension (Nonprocurement) and qualify borrowers for teacher The Secretary is providing the Governmentwide Requirements for cancellation benefits under each of the Drug-Free Workplace (Grants), 34 CFR loan programs. amendments to the Directory to each Part 85. DATES: The amendments to the institution participating in the Federal (8) Drug-Free Schools and Campuses, Directory are currently available. Perkins Loan Program. Borrowers and 34 CFR Part 86. ADDRESSES: Information concerning other interested parties may check with FOR FURTHER INFORMATION CONTACT: To specific schools listed in the their lending institutions, the receive information or to request FISAP amendments to the Directory may be appropriate State or Territory materials, contact Ms. Sandra Donelson, obtained from Systems Administration Department of Education, regional Campus-Based Financial Operations Branch, Campus-Based Programs offices of the Department of Education, Branch, Institutional Financial System Division, Office of or the Office of Postsecondary Management Division, Accounting and Postsecondary Education, U.S. Education of the Department of Financial Management Service, Student Department of Education, 600 Education concerning the identity of Financial Assistance Programs, U.S. Independence Avenue, S.W., (Room qualifying schools for the l994–95 Department of Education, 600 4621, ROB–3), Washington, D.C. 20202– academic year. Independence Avenue, S.W., (Room 5453, Telephone (202) 708–6730. The Office of Postsecondary Information concerning deferment 4714, ROB–3), Washington, D.C. 20202– Education retains, on a permanent basis, 5458. Telephone (202) 708–9751. and/or cancellation of a National Direct Student Loan or Federal Perkins Loan copies of all published Directories and Individuals who use a amendments. telecommunications device for the deaf may be obtained from Susan M. Morgan, (TDD) may call the Federal Information Section Chief, Campus-Based Loan (Catalog of Federal Domestic Assistance Relay Service (FIRS) at 1–800–877–8339 Programs Section, Loans Branch, Policy Number 84.037; National Defense/Direct and between 8 a.m. and 8 p.m., Eastern time, Development Division, Office of Federal Perkins Student Loan Cancellations) Monday through Friday. Postsecondary Education, U.S. Dated: July 28, 1995. Department of Education, 600 (Authority: 20 U.S.C. 1087aa et seq.; 42 David A. Longanecker, Independence Avenue, S.W., (Room U.S.C. 2751 et seq.; and 20 U.S.C. 1070b et Assistant Secretary for Postsecondary 3053, ROB–3), Washington, D.C. 20202– seq.) Education. 5345, Telephone (202) 708–8242. (Catalog of Federal Domestic Assistance [FR Doc. 95–18927 Filed 8–1–95; 8:45 am] Numbers: 84.038 Federal Perkins Loan Individuals who use a BILLING CODE 4000±01±P Program; 84.033 Federal Work-Study telecommunications device for the deaf Program; and 84.007 Federal Supplemental (TDD) may call the Federal Information Educational Opportunity Grant Program) Relay Service (FIRS) at 1–800–877–8339 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39375 DEPARTMENT OF ENERGY required by this agreement. These Issued in Washington, DC, on July 26, applications have been docketed as PP– 1995. Office of Fossil Energy 107 and PP–108, respectively. Anthony J. Como, (FE Docket No. EA±109) Director, Office of Coal and Electricity, Office Procedureal Matters of Fuels Programs, Office of Fossil Energy. Application to Export Electricity; Any person desiring to be heard or to [FR Doc. 95–19032 Filed 8–1–95; 8:45 am] Arizona Public Service Company protest this application should file a BILLING CODE 6450±01±P petition to intervene or protest at the AGENCY: Office of Fossil Energy, DOE. address provided above in accordance [Number DE±PS07±95ID13375] ACTION: Notice of application. with sections 385.211 or 385.214 of the rules of Practice and Procedure (18 CFR Amendment No. 1 to Solicitation for SUMMARY: Arizona Public Service 385.211, 385.214). Company (APS) has requested Any such petitions and protests Financial Assistance; Refractory authorization to export electric energy should be filed with the DOE on or Containment Research, Development to Mexico. before the date listed above. Additional and Demonstration DATES: Comments, protests, or requests copies of such petitions to intervene or The U.S. Department of Energy, Idaho to intervene must be submitted on or protests also should be filed directly Operations Office, published a complete before September 1, 1995. with: Dennis Beals, Arizona Public solicitation in the Federal Register (Vol. ADDRESSES: Comments, protests, or Service Company, P.O. Box 53999, 60, No. 122, Page Numbers 32948 requests to intervene should be Station 9860, Phoenix, Arizona 85072– through 32952) on June 26, 1995, addressed as follows: Office of Coal & 3999, (602) 250–3101 and Bruce requesting cost shared applications for Electricity (FE–52), Office of Fuels Gardner, Esq., Arizona Public Service Refractory Containment Research, Programs, Fossil Energy, U.S. Company, P.O. Box 53999, Station 9820, Development and Demonstration. The Department of Energy, 1000 Phoenix, Arizona 850772–3999, (602) purpose of this Amendment No. 1 is to Independence Avenue SW., 250–3507. change the following: Pursuant to 18 CFR 385.211, protests Washington, DC 20585. 1. Page 32948, ‘‘DATES: The deadline and comments will be considered by the for receipt of applications is 4:00 p.m. FOR FURTHER INFORMATION CONTACT: DOE in determining the appropriate Steven Mintz (Program Office) 202–586– MDT, August 17, 1995.’’ is changed to action to be taken, but will not serve to ‘‘DATES: The deadline for receipt of 9506 or Michael T. Skinker (Program make protestants parties to the Attorney) 202–586–6667. applications is 4:00 p.m. MDT, August proceeding. Any person wishing to 31, 1995.’’ SUPPLEMENTARY INFORMATION: Exports of become a party must file a petition to 2. Page 32949, under E. Application electricity from the United States to a intervene under 18 CFR 385.214. Evaluation, a. Application Deadline: foreign country are regulated and Section 385.214 requires that a petition The sentence, ‘‘The deadline for receipt require authorization under section to intervene must state, to the extent of applications is 4:00 p.m. MDT, 202(e) of the Federal Power Act. In known, the position taken by the August 17, 1995.’’ is changed to ‘‘The addition, the construction, connection, petitioner and the petitioner’s interest in deadline for receipt of applications is operation, and maintenance of facilities sufficient factual detail to demonstrate 4:00 p.m. MDT, August 31, 1995.’’ at the international border of the United either that the petitioner has a right to 3. Page 32950, under e. Merit States for the transmission of electrical participate because it is a State Reviews. The sentence ‘‘Selections for energy is prohibited in the absence of a Commission; that it has or represents an negotiations are expected to be made Presidential permit pursuant to interest which may be directly affected October 6, 1995, and financial Executive Order No. 12038. by the outcome of the proceeding, assistance awards are expected to be On June 22, 1995, APS filed an including any interest as a consumer, made beginning November 26, 1995.’’ is application with the Office of Fossil customer, competitor, or a security changed to ‘‘Selections for negotiations Energy (FE) of the Department of Energy holder of a party to the proceeding; or are expected to be made October 20, (DOE) for authorization to export that the petitioner’s participation is in 1995, and financial assistance awards electric energy to the Comision Federal the public interest. are expected to be made beginning de Electricidad (CFE), the national A final decision will be made on this December 9, 1995.’’ electric utility of Mexico, pursuant to application after the DOE determines Dated: July 20, 1995. section 202(e) of the Federal Power Act. whether the proposed action would R. Jeffrey Hoyles, APS proposes to export to CFE impair the sufficiency of electric supply emergency energy pursuant to a within the United States or would Director of Procurement Services Division. Reciprocal Emergency Assistance impede or tend to impede the [FR Doc. 95–19033 Filed 8–1–95; 8:45 am] Agreement between APS and CFE. This coordination in the public interest of BILLING CODE 6450±01±M agreement commits both parties to facilities in accordance with section establish 34.5 kilovolt (kV) electric 202(e) of the Federal Power Act. transmission interconnections between Before an export authorization may be Environmental Management Site the communities of Agua Prieta, Sonora, issued, the environmental impacts of Specific Advisory Board, Kirtland Area Mexico and Douglas, Arizona, and San the proposed DOE action (i.e., granting Office (Sandia) Luis Rio Colorado, Sonora, Mexico, and the export authorization, with any AGENCY: Department of Energy San Luis, Arizona, and to provide conditions and limitations, or denying ACTION: Notice of open meeting emergency assistance when requested it) must be evaluated pursuant to the by the other party in order to mutually National Environmental Policy Act of SUMMARY: Pursuant to the provisions of increase each party’s distribution 1969. the Federal Advisory Committee Act system reliability. Under two separate Copies of this application will be (Public Law 92–463, 86 Stat. 770) notice applications, APS has applied to FE for made available, upon request, for public is hereby given of the following Presidential permits to construct the inspection and copying at the address Advisory Committee meeting: international transmission facilities provided above. Environmental Management Site 39376 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Specific Advisory Board (EM SSAB), also be available by writing to Mike Issued in Washington, DC, on July 19, Kirtland Area Office (Sandia) Zamorski, Department of Energy 1995. DATES: Thursday, August 10, 1995: 6:45 Kirtland Area Office, P.O. Box 5400, Christine A. Ervin, pm–10:00 pm (Mountain Daylight Albuquerque, NM 87185, or by calling Assistant Secretary, Energy Efficiency and Time). (505) 845–4094. Renewable Energy. ADDRESSES: Indian Pueblo Cultural Issued at Washington, DC on July 28, 1995. Decision and Order; Department of Center, 2401 12th Street NW., Rachel M. Samuel, Energy; Office of Energy Efficiency and Albuquerque, NM. Acting Deputy Advisory Committee Renewable Energy FOR FURTHER INFORMATION CONTACT: Management Officer. In the Matter of: Kool-Fire (Case No. CAC– Mike Zamorski, Acting Manager, [FR Doc. 95–19031 Filed 8–1–95; 8:45 am] 007). Department of Energy Kirtland Area BILLING CODE 6450±01±P Office, P.O. Box 5400, Albuquerque, NM Background: 87185 (505)845–4094. The Energy Conservation Program for Office of Energy Efficiency and Consumer Products (other than SUPPLEMENTARY INFORMATION: Renewable Energy automobiles) was established pursuant Purpose of the Board to the Energy Policy and Conservation The purpose of the Board is to make [Case No. CAC±007] Act (EPCA), Public Law 94–163, 89 Stat. 917, as amended by the National Energy recommendations to DOE and its Energy Conservation Program for regulators in the areas of environmental Conservation Policy Act (NECPA), Consumer Products: Decision and Public Law 95–619, 92 Stat. 3266, the restoration, waste management, and Order Granting a Waiver From the related activities. National Appliance Energy Central Air Conditioner and Central Air Conservation Act of 1987 (NAECA), Tentative Agenda Conditioning Heat Pump Test Public Law 100–12, the National Procedure to Kool-Fire 6:45 pm—Public Comment Period Appliance Energy Conservation 7:00 pm—Issues Discussion: Future AGENCY: Office of Energy Efficiency and Amendments of 1988 (NAECA 1988), Land Use, Corrective Action Renewable Energy, Department of Public Law 100–357, and the Energy Management Units Energy. Policy Act of 1992 (EPAct), Public Law 8:30 pm—Board Organizational 102–486, 106 Stat. 2776, which requires ACTION: Decision and order. Structure the Department to prescribe 9:30 pm—Evaluation SUMMARY: Notice is given of the standardized test procedures to measure 10:00 pm—Adjourn Decision and Order (Case No. CAC–007) the energy consumption of certain A final agenda will be available at the granting a Waiver to Kool-Fire from the consumer products, including furnaces. meeting Thursday, August 10, 1995. existing Department of Energy test The intent of the test procedures is to provide a comparable measure of energy Public Participation procedure for central air conditioners and central air conditioning heat consumption that will assist consumers The meeting is open to the public. pumps. The Department is granting in making purchasing decisions. These Written statements may be filed with Kool-Fire’s Petition for Waiver from the test procedures appear at 10 CFR Part the Committee either before or after the existing Department of Energy central 430, Subpart B. meeting. Individuals who wish to make air conditioner and central air The Department amended the oral statements pertaining to agenda conditioning heat pump test procedure prescribed test procedures by adding 10 items should contact Mike Zamorski’s for the company’s lines of HC and LTH CFR 430.27 to create a waiver process. office at the address or telephone burner-assisted heat pumps. 45 FR 64108, September 26, 1980. Thereafter, the Department further number listed above. FOR FURTHER INFORMATION CONTACT: Requests must be received 5 days amended its appliance test procedure prior to the meeting and reasonable Michael G. Raymond, U.S. Department waiver process to allow the Assistant provision will be made to include the of Energy, Office of Energy Efficiency Secretary for Energy Efficiency and presentation in the agenda. The and Renewable Energy, Mail Station Renewable Energy (Assistant Secretary) Designated Federal Official is EE–431, Forrestal Building, 1000 to grant an Interim Waiver from test empowered to conduct the meeting in a Independence Avenue, SW., procedure requirements to fashion that will facilitate the orderly Washington, DC 20585, (202) 586– manufacturers that have petitioned the conduct of business. Each individual 9611 Department for a waiver of such wishing to make public comment will Eugene Margolis, Esq., U.S. Department prescribed test procedures. 51 FR 42823, be provided a maximum of 5 minutes to of Energy, Office of General Counsel, November 26, 1986. present their comments. This notice is Mail Station GC–72, Forrestal The waiver process allows the being published less than 15 days before Building, 1000 Independence Avenue, Assistant Secretary to waive temporarily the date of the meeting, due to SW., Washington, DC 20585, (202) test procedures for a particular basic programmatic issues that had to be 586–9507 model when a petitioner shows that the resolved prior to publication. SUPPLEMENTARY INFORMATION: In basic model contains one or more accordance with 10 CFR Part 430, design characteristics which prevent Minutes § 430.27(l), notice is hereby given of the testing according to the prescribed test The minutes of this meeting will be issuance of the Decision and Order as procedures, or when the prescribed test available for public review and copying set out below. In the Decision and procedures may evaluate the basic at the Freedom of Information Public Order, Kool-Fire has been granted a model in a manner so unrepresentative Reading Room, 1E–190, Forrestal Waiver from the existing Department of of its true energy consumption as to Building, 1000 Independence Avenue, Energy central air conditioner and provide materially inaccurate SW, Washington, DC 20585 between central air conditioning heat pump test comparative data. Waivers generally 9:00 a.m. and 4 p.m., Monday-Friday, procedure for the company’s lines of HC remain in effect until final test except Federal holidays. Minutes will and LTH burner-assisted heat pumps. procedure amendments become Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39377 effective, resolving the problem that is until the Department prescribes final address listed above, telephone (202) the subject of the waiver. test procedures appropriate to the HC 254–5559. The Interim Waiver provisions added and LTH lines of burner-assisted heat SUPPLEMENTARY INFORMATION: by the 1986 amendment allow the pumps manufactured by Kool-Fire. Assistant Secretary to grant an Interim I. Background (4) This Waiver is based upon the II. Current Actions Waiver when it is determined that the presumed validity of statements, III. Request for Comments applicant will experience economic allegations, and documentary materials hardship if the Application for Interim submitted by the petitioner. This Waiver I. Background Waiver is denied, if it appears likely may be revoked or modified at any time In order to fulfill its responsibilities that the Petition for Waiver will be upon a determination that the factual under the Federal Energy granted, and/or the Assistant Secretary basis underlying the petition is Administration Act of 1974 (Pub. L. No. determines that it would be desirable for incorrect. 93–275) and the Department of Energy public policy reasons to grant (5) Effective July 27, 1995, this Waiver Organization Act (Pub. L. No. 95–91), immediate relief pending a supersedes the Interim Waiver granted the Energy Information Administration determination on the Petition for Kool-Fire on February 22, 1995. 60 FR is obliged to carry out a central, Waiver. An Interim Waiver remains in 11967, March 3, 1995 (Case No. CAC– comprehensive, and unified energy data effect for a period of 180 days or until 007). and information program. As part of this the Department issues its determination Issued In Washington, DC, on July 27, program, EIA collects, evaluates, on the Petition for Waiver, whichever is 1995. assembles, analyzes, and disseminates sooner, and may be extended for an Christine A. Ervin, data and information related to energy additional 180 days, if necessary. resource reserves, production, demand, Kool-Fire filed a ‘‘Petition for Assistant Secretary, Energy Efficiency and Renewable Energy. and technology, and related economic Waiver,’’ dated July 18, 1994, in and statistical information relevant to accordance with Section 430.27 of 10 [FR Doc. 95–19011 Filed 8–1–95; 8:45 am] BILLING CODE 6450±01±P the adequacy of energy resources to CFR Part 430. The Department meet demands in the near and longer published in the Federal Register on term future for the Nation’s economic March 3, 1995, Kool-Fire’s petition, and Energy Information Administration and social needs. solicited comments, data, and The Energy Information information respecting the petition. 60 Proposed Agency Information Administration, as part of its continuing FR 11967. Kool-Fire also filed an Collection Under OMB Review effort to reduce paperwork and ‘‘Application for Interim Waiver’’ under respondent burden (required by the AGENCY: Energy Information Section 430.27(g), which the Paperwork Reduction Act of 1995 (Pub. Administration, Department of Energy. Department granted on February 22, L. 104–13)), conducts a presurvey 1995. 60 FR 11968, March 3, 1995. ACTION: Notice of the Proposed Revision consultation program to provide the No comments were received of Form RW–859, ‘‘Nuclear Fuel Data,’’ general public and other Federal concerning either the ‘‘Petition for Proposed New Form RW–859S, agencies with an opportunity to Waiver’’ or the ‘‘Interim Waiver.’’ The ‘‘Nuclear Fuel Data Supplement,’’ and comment on proposed and/or Department consulted with the Federal Solicitation of Comments. continuing reporting forms. This Trade Commission (FTC) concerning the program helps to ensure that requested Kool-Fire Petition. The FTC did not SUMMARY: The Energy Information data can be provided in the desired have any objections to the issuance of Administration (EIA) is soliciting format, reporting burden is minimized, the waiver to Kool-Fire. comments concerning the proposed revision to the Form RW–859, ‘‘Nuclear reporting forms are clearly understood, Assertions and Determinations Fuel Data,’’ and proposed new survey and the impact of collection Kool-Fire’s Petition seeks a waiver Form RW–859S, ‘‘Nuclear Fuel Data requirements on respondents can be from the Department’s testing of the Supplement.’’ properly assessed. heating mode operation for its burner- The Nuclear Waste Policy Act of DATES: Written comments must be 1982, as amended (NWPA), 42 U.S.C. assisted heat pumps because the current submitted by October 2, 1995. If you Department test procedure does not 10101 et seq., requires that the Secretary anticipate that you will be submitting develop and implement programs to address burner-assisted heat pumps. comments, but find it difficult to do so Thus, the Department is granting a dispose of spent nuclear fuel. The Office within the period of time allowed by of Civilian Radioactive Waste waiver of the requirement to test Kool- this notice, you should advise the Fire’s HC and LTH models in the Management (OCRWM) uses the contact listed below of your intention to information from Form RW–859 to heating mode. do so as soon as possible. It is, therefore, ordered that: understand and explore the specific (1) The ‘‘Petition for Waiver’’ filed by ADDRESSES: Send comments to Ms. requirements of developing and Kool-Fire (Case No. CAC–007) is hereby Kathy Gibbard, Program Manager, Form conducting programs to effectuate the granted as set forth in paragraph (2) RW–859 and RW–859S, U.S. purposes of the NWPA. below, subject to the provisions of Department of Energy, Energy The EIA administers the Form RW– paragraphs (3), (4) and (5). Information Administration (EI–531), 859, ‘‘Nuclear Fuel Data’’, which is used (2) Kool-Fire shall be required to test 1000 Independence Avenue, S.W., to collect data from owners of its lines of HC and LTH heat pumps on Washington, DC 20585, or via e-mail commercial nuclear power plants and the basis of the test procedures specified (internet) owners and caretakers of spent nuclear in 10 CFR Part 430, Subpart B, [email protected]. FAX fuel. The Federal Energy Administration Appendix M, for the cooling mode of (202) 254–5765. Act of 1974 (15 U.S.C. 761 et seq.) operation, Section 2.1. The heating FOR FURTHER INFORMATION CONTACT: authorizes the EIA to collect data. The mode test, Section 2.2, is waived. Requests for additional information or current Form RW–859 collects data on (3) The Waiver shall remain in effect copies of the form and instructions every fuel assembly discharged from from the date of issuance of this Order should be directed to Ms. Gibbard at the domestic commercial nuclear reactors, 39378 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices spent fuel projected to be discharged, upending area, cask handling area, pool Please comment on (1) the accuracy of and spent fuel storage pool inventories cask loading area, and set-down our estimate and (2) how the agency and capacities. The form has been platform area could minimize the burden of the approved through December 31, 1997. • Transportation data including collection of information, including the Major revisions to Form RW–859 information on on-site roads, rail, and use of automated collection techniques necessitate that the proposed form and barge or other forms of information • new supplemental schedule be Historical assembly-specific data technology. approved by the Office of Management not previously reported. and Budget (OMB). D. What is the estimated cost of III. Request for Comments completing these forms, including the II. Current Actions Prospective respondents and other direct and indirect costs associated with This notice is to solicit comments on interested parties should comment on the data collection? Direct costs should proposed revisions to Form RW–859 the actions discussed in item II. The include all costs, such as administrative and corresponding instructions. The following guidelines are provided to costs, directly attributable to providing extension request to OMB will be assist in the preparation of responses. this information. through December 31, 1998. The DOE is Please indicate to which form(s) your E. Do you know of any other Federal, proposing to reduce the content of the comments apply. State, or local agency that collects Form RW–859 survey to only collect General Issues similar data? If you do, specify the data elements that require annual agency, the data element(s), and the update. Data that are not subject to EIA is interested in receiving annual revision will be collected every comments from persons regarding: methods of collection. five years on a new Form RW–859S A. Whether the proposed collection(s) As a Potential User supplementary survey form. A summary of information is necessary for the of the proposed changes follows. proper performance of the functions of A. Can you use data at the levels of The following items will no longer be the agency, including whether the detail indicated on the forms? collected on the survey: information will have practical utility. B. For what purpose would you use • Practical utility is the actual usefulness Capacity data other than licensed the data? Be specific. capacity and current usable capacity of information to or for an agency, • Temporarily discharged fuel (all taking into account its accuracy, C. Are there alternate sources of data discharged fuel will now be designated adequacy, reliability, timeliness, and the and do you use them? If so, what are as permanently discharged) and changes agency’s ability to process the their deficiencies and/or strengths? in assembly status information it collects. D. For the most part, information is • Cross-reference assembly identifiers B. What enhancements can EIA make published by EIA in U.S. customary including American National Standard to the quality, utility, and clarity of the units, e.g., cubic feet of natural gas, Institute (ANSI) identifier and fuel information to be collected? short tons of coal, and barrels of oil. fabricator assembly identifiers Would you prefer to see EIA publish • Data on reconstituted fuel. As a Potential Respondent The following items will no longer be A. Are the instructions and more information in metric units, e.g., collected annually on the Form RW–859 definitions clear and sufficient? If not, cubic meters, metric tons, and survey, but will be collected once every which instructions require clarification? kilograms? If yes, please specify what five years on the Form RW–859S survey B. Can data be submitted in information (e.g., coal production, supplement: accordance with the due date specified natural gas consumption, and crude oil • Dates not subject to annual revision in the instructions? imports), the metric unit(s) of (license renewal, reactor retirement, C. Public reporting burden for the measurement preferred, and in which etc.) annual Form RW–859 data collection is EIA publication(s) you would like to see • Cask-handling data estimated to average 40 hours per such information. • Specific data on canisters and their response. Public reporting burden for Comments submitted in response to contents the five-year Form RW–859S • Nonfuel components data. this notice will be summarized and/or supplement is estimated to be 100 hours included in the request for OMB The following items have been added for the initial data collection and 20 approval of the form. They also will to the annual Form RW–859 survey: hours for subsequent data collections. • become a matter of public record. Questions on quality assurance Burden includes the total time, effort, or procedures and traceability financial resources expended to Statutory Authority: Section 3506(c)(2)(A) • Assembly-specific information on generate, maintain, retain, or disclose or of the Paperwork Reduction Act of 1995 initial uranium content, initial provide the information including: (1) (Pub. L. No. 104–13). enrichment, and burnup • Current cycle start date. Reviewing instructions; (2) developing, Issued in Washington, DC, July 20, 1995. The following will now be collected acquiring, installing, and utilizing John Gross, on the five-year Form RW–859S technology and systems for the purposes Acting Director, Office of Statistical supplement: of collecting, validating, verifying, Standards, Energy Information • Reactor information including type, processing, maintaining, disclosing and Administration. nuclear steam system supplier, design providing information; (3) adjusting the [FR Doc. 95–18391 Filed 8–1–95; 8:45 am] existing ways to comply with any type, operational status, location, and BILLING CODE 6450±01±P rating previously applicable instructions and • Pool site configuration requirements; (4) training personnel to • Crane data including capacity, respond to a collection of information; limiting factors, dimensions, and (5) searching data sources; (6) clearance completing and reviewing the collection • Site specific access and of information; and (7) transmitting, or configuration data for the receiving/ otherwise disclosing the information. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39379 Federal Energy Regulatory Commission’s May 31, 1995 Order in Mechanism (TCRA) contained in Article Commission this proceeding. XXIV of the General Terms and Equitrans states that the sheets listed Conditions of its FERC Gas Tariff, Fifth [Project No. 2680±017 Michigan] in Appendix A of the Motion were Revised Volume No. 1. included in Equitrans’ April 28, 1995 Tennessee states that it is filing its Consumers Power Company and the filing, and Equitrans is moving to place Statement in accordance with Detroit Edison Company; Notice of them into effect without any Commission’s ruling, in Tennessee’s Availability of Draft Environmental modification. The rate and tariff sheets restructuring dockets, that indicates it Assessment listed in Appendix B of the motion have intended to review the TCRA two years July 27, 1995. been modified to incorporate minor from the effective date of restructured clerical and conforming changes. Both services on Tennessee’s system. A draft environmental assessment sets of tariff sheets are proposed to Tennessee states that the TCRA should (DEA) is available for public review. become effective on August 1, 1995 in be maintained because the TCRA is The DEA is for a settlement agreement compliance with the May 31, 1995 necessary to allow Tennessee to containing proposed measures for fish Order. Equitrans has requested a waiver continue to recover its eligible and protection and angler access at the to permit the minor and clerical changes prudent stranded upstream Ludington Pumped Storage Project to the tariff sheets contained in transportation costs in accordance with (FERC No. 2680). The DEA finds that Appendix B and any other waivers the Commission’s findings in Docket approval of the settlement agreement necessary to permit the Appendix A and No. RP93–148 and in the ‘‘Ozark Exit and implementation of the proposed B tariff sheets to become effective Fee’’ docket. measures for fish protection and angler August 1, 1995. Tennessee also states that the TCRA access would not constitute a major Equitrans also states that the tariff should be maintained because federal action significantly affecting the sheets implement a new Appalachian Tennessee has made significant progress quality of the human environment. The pooling service for Equitrans’ customers in reducing its TBO costs, and that the Ludington Pumped Storage Project is (APS service) which will make it easier TCRA has been shown to be a proven located on the Eastern Shore of Lake for customers to nominate Appalachian and effective TCRA ‘‘tracker’’ Michigan in Mason County, Michigan. production on the Equitrans system, mechanism that ensures that only those The DEA was prepared by staff in the while reducing administrative costs incurred under the unexpired TBO Office of Hydropower Licensing, responsibility of the pipeline in contracts are recovered from Federal Energy Regulatory Commission. scheduling and balancing the numerous Tennessee’s customer for the term of Copies of the DEA can be viewed at the Appalachian receipt points which those contracts. Commission’s Reference and Equitrans operates. Any person desiring to be heard or to Information Center, Room 3308, 941 Any person desiring to protest this protest said filing should file a motion North Capitol Street, N.E., Washington, filing should file a protest with the to intervene or protest with the Federal D.C. 20426. Copies can also be obtained Federal Energy Regulatory Commission, Energy Regulatory Commission, 825 by calling the project manager listed 825 North Capitol Street, NE. North Capitol Street, N.E., Washington, below. Washington, DC 20426, in accordance D.C. 20426, in accordance with 18 CFR Please submit any comments within with Section 835.211 of the Commission 385.214 and 385.211 of the 30 days from the date of this notice. Any Rules of Practice and Procedure. All Commission’s Rules and Regulations. comments, conclusions, or such protests should be filed on or All such motions or protests should be recommendations that draw upon before August 3, 1995. Protests will be filed on or before August 3, 1995. studies, reports or other working papers considered by the Commission in Protests will be considered by the of substance should be supported by determining the appropriate action to be Commission in determining the appropriate documentation. taken, but will not serve to make appropriate action to be taken, but will Comments should be addressed to protestants parties to this proceeding. not serve to make protestants parties to Lois D. Cashell, Secretary, Federal Parties that have already filed motions the proceeding. Any person wishing to Energy Regulatory Commission, 825 to intervene in this proceeding need not become a party must file a motion to North Capitol Street, N.E., Washington, file another motion to intervene. Copies intervene. Copies of this filing are on D.C. 20426. Please denote ‘‘Comments: of this filing are on file with the file with the Commission and are Project No. 2680–017’’ on all comments. Commission and are available for public available for public inspection in the For more information, please contact the inspection in the Public Reference public reference room. project manager, John Mudre, at (202) Room. 219–1208. Lois D. Cashell, Lois D. Cashell, Secretary. Lois D. Cashell, Secretary. [FR Doc. 95–18896 Filed 8–1–95; 8:45 am] Secretary. [FR Doc. 95–18894 Filed 8–1–95; 8:45 am] BILLING CODE 6717±01±M [FR Doc. 95–18958 Filed 8–1–95; 8:45 am] BILLING CODE 6717±01±M BILLING CODE 6717±01±M [Docket No. GT95±48±000] [Docket No. RP95±394±00] [Docket No. RP95±257±001] Trunkline Gas Company; Notice of Tennessee Gas Pipeline Company; Proposed Changes in FERC Gas Tariff Equitrans, Inc.; Notice of Motion to Notice of Petition for Extension Place Rates Into Effect July 27, 1995. July 27, 1995. Take notice that on July 25, 1995, July 27, 1995. Take notice that on July 20, 1995, Trunkline Gas Company (Trunkline) Take notice that on July 24, 1995, Tennessee Gas Pipeline Company tendered for filing as part of its FERC Equitrans, Inc. (Equitrans) filed a (Tennessee) tendered for filing a Gas Tariff, First Revised Volume No. 1 motion to place into effect revised tariff Statement in Support of Maintaining its revised tariff sheets, as listed on sheets in accordance with the Transportation Cost Rate Adjustment Appendix A. attached to the filing, 39380 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices proposed to be effective April 1, 1995, [Docket No. ER95±1358±000] Office of Hearing and Appeals June 1, 1995, June 11, 1995 and July 1, 1995. Wisconsin Energy Company and Cases Filed; During the Week of June Trunkline states that this filing is Northern States Power Company; 26 Through June 30, 1995 being made in compliance with Section Notice of Filing 154.41(b) of the Commission’s July 27, 1995. During the Week of June 26 through Regulations. The revised tariff sheets Take notice that on July 10, 1995, June 30, 1995, the appeals and reflect updates to the Index of Firm Wisconsin Energy Company and applications for other relief listed in the Customers. Northern States Power Company Appendix to this Notice were filed with Trunkline states that copies of this tendered for filing two transmission the Office of Hearings and Appeals of filing are being mailed to affected service tariffs: A Network Integration the Department of Energy. Submissions shippers and interested state regulatory Service Tariff, and a Point-to-Point inadvertently omitted from earlier lists agencies. Transmission Service. have also been included. Any person desiring to be heard or to Any person desiring to be heard or to Under DOE procedural regulations, 10 protest said filing should file a motion protest said filing should file a motion CFR Part 205, any person who will be to intervene or protest with the Federal to intervene or protest with the Federal aggrieved by the DOE action sought in Energy Regulatory Commission, 825 Energy Regulatory Commission, 825 North Capitol Street, N.E., Washington, North Capitol Street, N.E., Washington, these cases may file written comments D.C. 20426, in accordance with Sections D.C. 20426, in accordance with Rules on the application within ten days of 385.211 and 385.214 of the 211 and 214 of the Commission’s Rules service of notice, as prescribed in the Commission’s Rules and Regulations. of Practice and Procedure (18 CFR procedural regulations. For purposes of All such motions or protests should be 385.211 and 18 CFR 385.214). All such the regulations, the date of service of filed on or before August 3, 1995. motions or protests should be filed on notice is deemed to be the date of Protests will be considered by the or before August 28, 1995. Protests will publication of this Notice or the date of Commission in determining the be considered by the Commission in receipt by an aggrieved person of actual appropriate action to be taken, but will determining the appropriate action to be notice, whichever occurs first. All such not serve to make protestants parties to taken, but will not serve to make comments shall be filed with the Office the proceeding. Any person wishing to protestants parties to the proceeding. of Hearings and Appeals, Department of become a party must file a motion to Any person wishing to become a party Energy, Washington, D.C. 20585. intervene. Copies of this filing ar on file must file a motion to intervene. Copies with the Commission and are available of this filing are on file with the Dated: July 26, 1995. for public inspecion in the Public Commission and area available for George B. Breznay, Reference Room. public inspection. Director, Office of Hearings and Appeals. Lois D. Cashell, Lois D. Cashell, Secretary. Secretary. [FR Doc. 95–18895 Filed 8–1–95; 8:45 am] [FR Doc. 95–18959 Filed 8–1–95; 8:45 am] BILLING CODE 6717±01-M BILLING CODE 6717±01±M LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS [Week of June 26 through June 30, 1995] Date Name And Location Of Applicant Case No. Type of Submission June 23, 1995 . General Equities, Inc., Washington, D.C. .... RR304±31 Request for Modification/Rescission in the Arco Refund Proceeding. If Granted: The February 23, 1995 Deci- sion and Order, Case Number RR304±31, issued to General Equities, Inc. would be modified regarding the firm's application for refund submitted in the ARCO re- fund proceeding. June 26, 1995 . Fruehauf Trailer Corporation, Cleveland, RR321±184 Request for Modification/Rescission in the Texaco Refund Ohio. Proceeding. If Granted: The May 16, 1995 Dismissal, Case No. RF321±20350, issued to Freuhauf Trailer Corporation, would be modified regarding the firm's ap- plication for refund submitted in the Texaco Refund Proceeding. June 26, 1995 . Richland Operations Office, Richland, VSO±0044 Request for Hearing under 10 CFR Part 710. If Granted: Washington. An individual whose security clearance was suspended by the Richland Operations Office would receive a hearing under 10 CFR Part 710. June 26, 1995 . Simmons Oil Corp., Washington, D.C...... RD326±323 Motion for Discovery. If Granted: Discovery would be granted to Simmons Oil Corporation in connection with the statement of objections submitted in response to a proposed decision that tentatively denied the firm's re- quest for a refund based upon alleged overcharges made by the Tesoro Petroleum Corporation. June 28, 1995 . Albuquerque Operations Office, Albuquer- VSA±0018 Request for Review of Opinion under 10 CFR Part 710. If que, New Mexico. Granted: The June 16, 1995 Opinion of an Office of Hearings and Appeals Hearing Officer, Case No. VSO± 0018, would be reviewed at the request of an individual whose security clearance was suspended by the Albu- querque Operations Office. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39381 LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALSÐContinued [Week of June 26 through June 30, 1995] Date Name And Location Of Applicant Case No. Type of Submission June 28, 1995 . Albuqerque Operations Office, Albuquer- VSO±0045 Request for Hearing under 10 CFR Part 710. If Granted: que, New Mexico. An individual whose security clearance was suspended by the Albuquerque Operations Office would receive a hearing under 10 C.F.R. Part 710. June 28, 1995 . Crock Texaco, Crock Texaco Service, RR321±186, Requests for Modification/Rescission in the Texaco Re- Crock Texaco Service La Mesa, Califor- RR321±187, fund Proceeding. If Granted: The June 15, 1995 Dis- nia. RR321±188 missal, Case Nos. RF321±19894, RF321±19895 and RF321±19896, issued to Crock Texaco, Crock Texaco Service and Crock Texaco Service would be modified regarding the firm's application for refund submitted in the Texaco Refund Proceeding. June 30, 1995 . Herbert Easterly, Crossville, Tennessee ..... VFA±0054 Appeal of an Information Request Denial. If Granted: The Freedom of Information Request Denial issued by the DOE Office of Inspector General would be rescinded, and Herbert Easterly would receive access to certain DOE information. REFUND APPLICATIONS RECEIVED [June 26 through June 30, 1995] Date Received Name of Refund Proceeding/Name of Refund Application Case Number 6/26/95 ...... Supplemental crude refunds ...... RB272±7 thru RB272±11. 6/26/95 thru 6/30/95 ...... ARCO refund applications ...... RF304±15472 thru RF304±15478. 6/26/95 thru 6/30/95 ...... Crude oil refund applications RG272±362 thru RG272±492.. 6/26/95 ...... Supplemental crude refunds ...... RK272±499 thru RK272±528...... Texaco refund applications ...... RF321±21076 thru RF321±21079. [FR Doc. 95–19029 Filed 8–1–95; 8:45 am] and Appeals of the Department of notice is deemed to be the date of BILLING CODE 6450±01±P Energy. Submissions inadvertently publication of this Notice or the date of omitted from earlier lists have also been receipt by an aggrieved person of actual included. notice, whichever occurs first. All such Notice of cases Filed; Week of June 5 Under DOE procedural regulations, 10 comments shall be filed with the Office through June 9, 1995 CFR Part 205, any person who will be of Hearings and Appeals, Department of aggrieved by the DOE action sought in Energy, Washington, D.C. 20585. July During the Week of June 5 through these cases may file written comments 26, 1995. June 9, 1995, the appeals and on the application within ten days of applications for exception or other relief service of notice, as prescribed in the Dated: July 26, 1995. listed in the Appendix to this Notice procedural regulations. For purposes of George B. Breznay, were filed with the Office of Hearings the regulations, the date of service of Director, Office of Hearings and Appeals. LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS [Week of June 5 to June 9, 1995] Date Name and location of applicant Case No. Type of submission 6/6/95 ...... Kanab Texaco, Kanab, Utah ...... RR321±183 Modification/Rescission First Stage. If granted: The May 12, 1995 Dismissal Letter, Case Number RF321±6331, issued to Kanab Texaco would be modified regarding the firm's application for refund submitted in the Texaco refund proceeding. 6/7/95 ...... Oak Ridge Operations Office, Oak Ridge, VSA±0014 Request for Review of Opinion under 10 C.F.R. Part 710. Tennessee. If granted: The May 8, 1995 Opinion of the Office of Hearings and Appeals, Case No. VSO±0014, would be reviewed at the request of an individual employed at Oak Ridge Operations Office. 6/7/95 ...... Oakland Operations Office, Oakland, Cali- VSO±0039 Request for hearing under 10 C.F.R. Part 710. If granted: fornia. An individual employed at Oakland Operations Office would receive a hearing under 10 C.F.R. Part 710. 6/9/95 ...... Albuquerque Operations Office, Albuquer- VSO±0040 Request for Hearing under 10 C.F.R. Part 710. If granted: que, New Mexico. An individual employed at Albuquerque Operations Of- fice would receive a hearing under 10 C.F.R. Part 710. 39382 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALSÐContinued [Week of June 5 to June 9, 1995] Date Name and location of applicant Case No. Type of submission 6/6/95 ...... Munir A. Malik, Hartford, Connecticut ...... VFA±0048 Appeal of an Information Request Denial. If granted: The May 2, 1995 Freedom of Information Request Denial is- sued by Albuquerque Operations Office would be re- scinded, and Munir A. Malik would receive access to certain Department of Energy information. 6/5/95 ...... Albuquerque Operations Office, Albuquer- VSO±0038 Request for Hearing under 10 C.F.R. Part 710. If granted: que, New Mexico. An individual employed at Albuquerque Operations Of- fice would receive a hearing under 10 C.F.R. Part 710. 6/5/95 ...... Sangre deCristo Animal Protection, Inc., Al- VFA±0047 Appeal of an Information Request Denial. If granted: The buquerque, New Mexico. April 27, 1995 Freedom of Information Request Denial issued by the U.S. Department of Energy would be re- scinded, and Sangre deCristo Animal Protection, Inc. would receive access to certain DOE information. REFUND APPLICATIONS RECEIVED [Week of June 5 to June 9, 1995] Date received Name of refund proceedings/name of refund application Case No. 3/17/95 thru 6/9/95 ...... Supplemental Crude Applications ...... RK272±204 thru RK272± 317 6/5/95 thru 6/9/95 ...... Crude Oil Refund Applications ...... RG272±296 thru RG272± 316 6/5/95 ...... State Escrow Distribution ...... RF302±16 6/7/95 ...... Citronelle Refunds Applications ...... RF345±41 thru RF345±43 6/8/95 ...... Texaco Refund Applications ...... RF321±21072 thru RF321± 21074 6/9/95 ...... Supplemental Crude Refunds ...... RB272±5 [FR Doc. 95–19030 Filed 8–1–95; 8:45 am] scale range of 0–500 ppb, at any RFCA–0895–106, ‘‘Horiba Instruments BILLING CODE 6450±01±P temperature in the range of 15° C to Incorporated, Model APMA–360 35° C, with the response time set to Ambient Carbon Monoxide 50 seconds, and with or without Monitor,’’ operated on the 0–50 ENVIRONMENTAL PROTECTION any of the following options: ppm range, with the Line Setting set AGENCY (1) Internal Ozone Generator to ‘‘MEASURE’’, with the Analog (2) Span External Control Output set to ‘‘MOMENTARY Office of Research and Development; (3) RS232–422 Serial Interface VALUE’’, and with or without the Ambient Air Monitoring Reference and (4) Internal Printer optional Rack Mounting Plate and Equivalent Methods; Reference and Side Rails. Equivalent Method Designations Note: In addition to the standard U.S. electrical power voltage and frequency (115 Note: In addition to the standard U.S. Notice is hereby given that EPA, in Vac, 60 Hz), this analyzer is approved for electrical power voltage and frequency (115 accordance with 40 CFR part 53, has use, with proper factory configuration, on 50 Vac, 60 Hz), this analyzer is approved for Hertz line frequency at any of the following use, with proper factory configuration, on 50 designated two additional equivalent Hertz line frequency at any of the following methods and one additional reference voltage ranges: 105–125 Vac (115 V nominal) or 210–250 Vac (230 V nominal). voltage ranges: 100–115 Vac and 220–240 method for ambient air monitoring. One Vac. of the equivalent methods is for the This method is available from measurement of ambient concentrations Environmental S.A., 111, bd This method is available from Horiba of ozone and the other is for the Robespierre, 78300 Poissy, France or Instruments Incorporated, 17671 measurement of ambient concentrations from Environment U.S.A., 570 Higuera Armstrong Avenue, Irvine, CA 92714. A of lead. The reference method is for the Street, Suite 25, San Luis Obispo, CA notice of receipt of application for this measurement of ambient concentrations 93401. A notice of receipt of application method appeared in the Federal of carbon monoxide. for this method appeared in the Federal Register, Volume 60, Number 111, June The new equivalent method for ozone Register, Volume 60, Number 111, June 9, 1995, page 30535. is an automated method (analyzer) 9, 1995, page 30535. A test analyzer representative of each which utilizes the measurement The new reference method for carbon of these methods has been tested by the principle based on absorption of monoxide is an automated method respective applicant, in accordance with ultraviolet radiation by ozone at a (analyzer) which utilizes a cross flow the test procedures specified in 40 CFR wavelength of 254 nm. This new modulated version of the measurement part 53. After reviewing the results of designated method is identified as principle (non-dispersive infrared these tests and other information follows: (NDIR) photometry) and the calibration submitted by the applicants, EPA has EQOA–0895–105, ‘‘Environment S.A. procedure specified in appendix C of 40 determined, in accordance with part 53, Model Q341M UV Photometric CFR part 50. The new designated that these methods should be Ozone Analyzer,’’ operated on a full method is identified as follows: designated, respectively, as an Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39383 equivalent method and a reference applicable designation (see description methods is required to maintain a list of method. of the methods above). Vendor ultimate purchasers of such analyzers The new equivalent method for the modifications of a designated method and to notify them within 30 days if a determination of lead in suspended used for purposes of part 58 are reference or equivalent method particulate matter collected from permitted only with prior approval of designation applicable to the analyzer ambient air uses a graphite furnace EPA, as provided in part 53. Provisions has been canceled or if adjustment of atomic absorption method and is concerning modification of such the analyzer is necessary under 40 CFR identified as follows: methods by users are specified under 53.11(b) to avoid a cancellation. EQL–0895–107, ‘‘Determination of Lead Section 2.8 of Appendix C to 40 CFR (7) An applicant who modifies an Concentration in Ambient part 58 (Modifications of Methods by analyzer previously designated as a Particulate Matter by Flameless Users). reference or equivalent method is not (Graphite Furnace) Atomic In general, a designation applies to permitted to sell the analyzer (as Absorption (City of Houston, any analyzer which is identical to the modified) as a reference or equivalent Texas).’’ analyzer described in the designation. In method (although he may choose to sell some cases, similar analyzers it without such representation), nor to The applicant’s request for an manufactured prior to the designation attach a label or sticker to the analyzer equivalent method determination for the may be upgraded (e.g., by minor (as modified) under the provisions above method was received on May 23, modification or by substitution of a new described above, until the applicant has 1995. This method has been tested by operation or instruction manual) so as to received notice under 40 CFR 53.14(c) the applicant, the Health and Human be identical to the designated method that the original designation or a new Services Department of Houston, Texas, and thus achieve designated status at a designation applies to the method as in accordance with the test procedures modest cost. The manufacturer should modified, or until the applicant has prescribed in 40 CFR part 53. After be consulted to determine the feasibility applied for and received notice under reviewing the results of these tests and of such upgrading. States or other 40 CFR 53.8(b) of a new reference or other information submitted by the agencies using a graphite furnace atomic equivalent method determination for the applicant, EPA has determined, in absorption method that employs analyzer as modified. accordance with part 53, that this procedures and specifications Aside from occasional breakdowns or method should be designated as an significantly different from those in malfunctions, consistent or repeated equivalent method. method EQL–0895–107 must seek noncompliance with any of these This method uses the sampling approval for their particular method conditions should be reported to: procedure specified in the reference under the provisions of Section 2.8 of Director, National Exposure Research method for the determination of lead in Appendix C to 40 CFR part 58 Laboratory, Air Measurements Research suspended particulate matter collected (Modification of Methods by Users) or Division (MD–78A), U.S. Environmental from ambient air (43 FR 46258). Lead in may seek designation of such a method Protection Agency, Research Triangle the particulate matter is solubilized by as an equivalent method under the Park, North Carolina 27711. extraction with nitric acid facilitated by provisions of 40 CFR part 53. Designation of these reference and heat. The lead content of the sample is Part 53 requires that sellers of equivalent methods is intended to assist analyzed by a Perkin Elmer HGA designated method analyzers comply the States in establishing and operating graphite furnace with Zeeman with certain conditions. These their air quality surveillance systems background correction and AS–40 conditions are given in 40 CFR 53.9 and under part 58. Technical questions Autosampler. Technical questions are summarized below: concerning any of the methods should concerning the method should be (1) A copy of the approved operation be directed to the applicant. Additional directed to the City of Houston, Health or instruction manual must accompany information concerning this action may and Human Services Department, the analyzer when it is delivered to the be obtained from Frank F. McElroy, Air Environmental Chemistry Service, 1115 ultimate purchaser. Measurements Research Division (MD– S. Braeswood, Houston, Texas 77030. (2) The analyzer must not generate 77), National Exposure Research The information submitted by the any unreasonable hazard to operators or Laboratory, U.S. Environmental three applicants will be kept on file at to the environment. Protection Agency, Research Triangle EPA’s National Exposure Research (3) The analyzer must function within Park, North Carolina 27711, (919) 541– Laboratory, Research Triangle Park, the limits of the performance 2622. North Carolina 27711 and will be specifications given in Table B–1 of part J.K. Alexander, available for inspection to the extent 53 for at least one year after delivery consistent with 40 CFR part 2 (EPA’s Acting Assistant Administrator for Research when maintained and operated in and Development. regulations implementing the Freedom accordance with the operation manual. [FR Doc. 95–18984 Filed 8–1–95; 8:45 am] of Information Act). (4) Any analyzer offered for sale as a As a designated reference or reference or equivalent method must BILLING CODE 6560±50±M equivalent method, each of these bear a label or sticker indicating that it methods is acceptable for use by States has been designated as a reference or Acid Rain Division and other air monitoring agencies under equivalent method in accordance with the requirements of 40 CFR part 58, part 53. [FRL±5269±4] Ambient Air Quality Surveillance. For (5) If such an analyzer has two or such purposes, each method must be more selectable ranges, the label or Acid Rain Provisions used in strict accordance with the sticker must be placed in close AGENCY: Environmental Protection operation or instruction manual proximity to the range selector and Agency. associated with the method or the indicate which range or ranges have ACTION: Notice. procedures and specifications provided been included in the reference or in the method description and subject to equivalent method designation. SUMMARY: EPA today announces the any limitations (e.g., operating (6) An applicant who offers analyzers allocation of allowances to small diesel temperature range) specified in the for sale as reference or equivalent refineries for desulfurization of fuel 39384 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices during 1994, plus additional allocations this approach, EPA allocates serve as a financial benefit to small for desulfurization from October 1, 1993 ‘‘allowances’’ to affected utility units. diesel refineries desulfurizing diesel through December 31, 1993. The Each allowance is a limited fuel. On July 7, 1994, EPA announced eligibility for and calculation of authorization to emit up to one ton of the first allocation of allowances under allowances to small diesel refineries is SO2. At the end of each calendar year, the small diesel refinery program. in accordance with Section 410(h) of the each unit must hold allowances in an In late 1994, EPA was informed by Clean Air Act, implemented at 40 CFR amount equal to or greater than its SO2 several refiners that there was confusion part 73, subpart G, and the notice emissions for the year. Allowances may regarding eligibility for the program. To published at 60 FR 14836, March 21, be bought, sold, or transferred between resolve the confusion, EPA provided 1995. utilities and other interested parties. notice on March 21, 1995 (60 FR 14836) FOR FURTHER INFORMATION CONTACT: Those utility units whose annual that extended the submittal date for Kathy Barylski, EPA Acid Rain Division emissions are likely to exceed their requesting allowances for (6204J), 401 M St., SW, Washington DC; allocations may install control desulfurization in 1993 and in 1994 telephone (202) 233–9074. technologies or switch to cleaner fuels until May 15, 1995. SUPPLEMENTARY INFORMATION: EPA’s to reduce SO2 emissions or buy The following table lists 1,458 Acid Rain Program was established by additional allowances. allowances to be allocated to five Title IV of the Clean Air Act Section 410(h) of the Clean Air Act eligible refineries for desulfurization Amendments of 1990 (CAAA) to reduce provides allowances for small diesel from October 1, 1993 through December acid rain in the continental United refineries that desulfurize diesel fuel 31, 1993. These refineries and States. The Acid Rain Program will from October 1, 1993 through December allowances are in addition to the 7,944 achieve a 50 percent reduction in sulfur 31, 1999. Small refineries are not allowances allocated in 1994 to fifteen dioxide (SO2) emissions from utility otherwise affected by the Acid Rain refiners (see 59 FR 34811, July 7, 1994), units. The SO2 reduction program is a Program and do not need the allowances bringing the total number of allowances flexible market-based approach to to comply with any provision of the allocated to 9,402. The allowances have environmental management. As part of Clean Air Act. Thus, the allowances a compliance year of 1995. Refiner Refinery name or location Allocation Big West Oil ...... Flying J ...... 303 Crysen ...... Woods Cross, Utah ...... 162 Hunt ...... Tuscaloosa, Alabama ...... 580 La Gloria ...... Crown ...... 400 Witco ...... Golden Bear ...... 13 The following table lists the allowances allocated to eligible small diesel refineries for desulfurization in 1994. A total of 28215 allowances are allocated to 19 refiners. These allowances have a compliance year of 1995. Refiner Refinery name or location Allocation Big West Oil ...... Flying J ...... 1230 Cenex ...... Laurel, Montana ...... 1500 Crysen ...... Woods Cross, Utah ...... 278 Frontier ...... Cheyenne, Wyoming ...... 1500 Gary Williams ...... Bloomfield ...... 1232 Giant ...... Ciniza ...... 1275 Holly ...... Lea ...... 1438 Navajo ...... 1479 Montana ...... 334 Hunt ...... Tuscaloosa, Alabama ...... 1500 Kern ...... Bakersfield, California ...... 1500 La Gloria ...... Crown ...... 1500 Lion ...... El Dorato ...... 1500 Paramount ...... Paramount, California ...... 1500 Pennzoil ...... Atlas ...... 1500 Roosevelt ...... 214 Powerine ...... Santa Fe Springs ...... 1500 Pride ...... Abilene, Texas ...... 1263 Sinclair ...... Little America ...... 1362 Sinclair, Wyoming ...... 1500 Tulsa, Oklahoma ...... 1500 U.S. Oil & Refining ...... Tacoma, Washington ...... 936 Witco ...... Golden Bear ...... 51 Wyoming Refining ...... Denver, Colorado ...... 623 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39385 Requests for allowances for provided by 40 CFR part 258 to the to all new and existing MSWLFs in its desulfurization during 1995 are due no extent the state/tribal permit program jurisdiction. The state/tribe also must later than April 1, 1996. Allowances allows such flexibility. EPA notes that provide for public participation in allocated in 1996 will have a regardless of the approval status of a permit issuance and enforcement as compliance year of 1996. state/tribe and the permit status of any required in section 7004(b) of RCRA. Dated: July 27, 1995. facility, the federal landfill criteria will Finally, EPA believes that the state/tribe apply to all permitted and unpermitted Paul M. Stolpman, must show that it has sufficient MSWLF facilities. compliance monitoring and Director, Office of Atmospheric Programs. The State of Maryland, through the enforcement authorities to take specific [FR Doc. 95–18989 Filed 8–1–95; 8:45 am] Maryland Department of the action against any owner or operator BILLING CODE 6560±50±P Environment (MDE), applied for a that fails to comply with an approved determination of adequacy under MSWLF program. [FRL±5270±4] section 4005 of RCRA. EPA has EPA Regions will determine whether reviewed Maryland’s MSWLF permit state/tribal programs are ‘‘adequate’’ Maryland: Final Determination of program application and proposed a based on the criteria outlined above. Adequacy of the State's Municipal determination on March 21, 1995, that Solid Waste Landfill Permitting Maryland’s MSWLF permit program is B. State of Maryland Program adequate to ensure compliance with a On August 26, 1993, MDE submitted major portion of the revised MSWLF AGENCY: an application for adequacy Environmental Protection Criteria, as described below. EPA is Agency (Region III). determination for its MSWLF permit today issuing a final determination that program. On March 21, 1995, EPA ACTION: Notice of Final Determination of the State of Maryland’s program is published a tentative determination of Partial Program Adequacy for the State adequate for partial approval. adequacy for most of the Maryland of Maryland’s Application. EFFECTIVE DATE: The determination of program, as described in detail below. SUMMARY: Section 4005(c)(1)(B) of the adequacy for the State of Maryland shall Further background on the tentative Resource Conservation and Recovery be effective immediately. determination of adequacy appears at Act (RCRA), as amended by the FOR FURTHER INFORMATION CONTACT: U.S. Vol. 60, No. 54 Federal Register 14938– Hazardous and Solid Waste EPA Region III, 841 Chestnut Building, 14941, March 21, 1995. Amendments (HSWA) of 1984, requires Philadelphia, Pennsylvania 19107, Attn: A public comment period began on states to develop and implement permit Mr. Andrew Uricheck, mailcode March 21, 1995, and ended on May 19, programs to ensure that municipal solid (3HW50), telephone (215) 597–7936. 1995. As announced in the notice of waste landfills (MSWLFs) which may SUPPLEMENTARY INFORMATION: tentative determination, a public receive hazardous household waste or hearing was held on May 17, 1995, in small quantity generator waste will A. Background Baltimore, MD. Few people requested comply with the revised Federal On October 9, 1991, EPA promulgated the opportunity to speak or offered MSWLF Criteria (40 CFR part 258). revised Criteria for MSWLFs (40 CFR public comments at the public hearing. RCRA section 4005(c)(1)(C) requires the part 258). Subtitle D of RCRA, as In the State’s application for an Environmental Protection Agency (EPA) amended by the Hazardous and Solid adequacy determination, Maryland to determine whether states have Waste Amendments of 1984 (HSWA), documented non-regulatory revisions to adequate ‘‘permit’’ programs for requires states to develop permitting many portions of their existing program MSWLFs, but does not mandate programs that incorporate the Federal which had not fully met the Federal issuance of a rule for such Criteria under 40 CFR part 258. Subtitle requirements in EPA’s 40 CFR Part 258. determinations. EPA has drafted and is D also requires in section 4005 that EPA EPA tentatively determined in the in the process of proposing a State/ determine the adequacy of state March 21, 1995 Federal Register that Tribal Implementation Rule (STIR) that municipal solid waste landfill permit these changes, as described below, will provide procedures by which EPA programs to ensure that facilities allowed Maryland’s MSW landfill will approve, or partially approve, state/ comply with the revised Federal permitting program to be eligible for tribal landfill permit programs. The Criteria. To fulfill this requirement, the EPA approval as ensuring compliance Agency intends to approve adequate agency has drafted and is in the process with 40 CFR Part 258. Those portions of state/tribal MSWLF permit programs as of proposing a State/Tribal the Maryland municipal solid waste applications are submitted. Thus, these Implementation Rule (STIR). The rule landfill permitting program proposed to approvals are not dependent on final will specify the requirements which be eligible for partial approval are as promulgation of the STIR. Prior to state/tribal programs must satisfy to be follows: promulgation of the STIR, adequacy determined adequate. Subpart A—General determinations will be made based on EPA intends to approve state/tribal the statutory authorities and MSWLF permit programs prior to the The existing Maryland requirements requirements. In addition, states/tribes promulgation of STIR. EPA interprets fully comply with 40 CFR Section 258.1, may use the draft STIR as an aid in the requirements for states or tribes to Purpose, Scope, and Applicability. MDE interpreting these requirements. The develop ‘‘adequate’’ programs for permit application checklists and Agency believes that early approvals permits or other forms of prior approval, internal guidance have been revised to have an important benefit. Approved as imposing several minimum fully incorporate the requirements of state/tribal permit programs provide requirements. First, each state/tribe § 258.2, Definitions and § 258.3, interaction between the state/tribe and must have enforceable standards for Consideration of other Federal laws. the owner/operator regarding site- new and existing MSWLFs that are Subpart B—Location Restrictions specific permit conditions. Only those technically comparable to EPA’s revised owners/operators located in state/tribal MSWLF criteria. Next, the state/tribe 1. The existing Maryland areas with approved permit programs must have the authority to issue a requirements fully comply with can use the site-specific flexibility permit or other notice of prior approval § 258.11, Floodplains. 39386 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 2. MDE permit application checklists to meet the requirements of Subpart E 1x10–5 cm/sec, since this would be far and internal guidance have been revised in terms of monitoring frequency and more stringent than the EPA to incorporate the requirements of coverage, including the pollution requirements. We agree that this is more § 258.10, Airport Safety; § 258.12, parameters listed in Appendices I and II stringent than the minimum EPA Wetlands; § 258.13, Fault areas; of 40 CFR Part 258. For proposed requirements, but the states are always § 258.14, Seismic Impact Zones; facilities and changes to existing free to adopt requirements more § 258.15, Unstable Areas; and § 258.16, facilities, MDE has amended their stringent than the federal requirements. Closure of Existing Landfill Units. application forms and checklists to MDE, in a letter dated June 26, 1995, require the preparation and agreed with this commenter, and has Subpart C—Operating Criteria implementation of a monitoring revised their checklists and proposed 1. The existing Maryland program which incorporates the regulations to conform to the federal requirements fully comply with: complete EPA requirements (§§ 258.50 criteria requiring a final cover of no § 258.20, Hazardous Waste Exclusion; thru 258.55). more permeability than the bottom § 258.21, Daily Cover; § 258.22, Disease 2. In the assessment of corrective liner. Thus, a synthetic cap will not be Vectors Control; § 258.24, Air Criteria; measures, selection of remedies, and required under all circumstances, but § 258.25, Access requirements; and implementation of corrective actions, only when the bottom liner contains a § 258.27, Surface Water Requirements. MDE will use the EPA regulations synthetic liner or at specific sites where 2. MDE permit application checklists (§§ 258.56; 258.57; 258.58) to guide their the State believes a more impervious and internal guidance have been revised enforcement actions. cap is needed to protect groundwater. to incorporate the requirements of: This same commenter stated that the Subpart F—Closure and Post-Closure § 258.23, Explosive Gas Control; MDE checklists for groundwater Care § 258.26, Run-On/Run-Off Control monitoring did not allow the owner/ Systems; § 258.28, Liquids Restrictions; 1. Closure Criteria (§ 258.60)— operators to do verification sampling and § 258.29, Record Keeping. Maryland now requires flexible before having to issue a notification of membrane caps, where appropriate, in Subpart D—Landfill Design the finding and beginning assessment accordance with the EPA regulations, sampling, if a statistical increase is 1. MDE permit application checklists and is implementing the closure periods found under detection monitoring. This and internal guidance have been revised required. again is more stringent than the EPA to incorporate the requirements of the C. Public Comments requirements. MDE, in the June 26, 1995 § 258.40 design criteria. MDE now letter to EPA, agreed with this statement requires, as a minimum at all new MSW EPA Region III received the following also, and has revised their permit landfills and expansions to existing written and/or verbal public comments review checklists to adopt the federal landfills, the bottom liner system on its tentative determination of full criteria more exactly. described in § 258.40 (b). This consists program adequacy approval of the This same commenter noted that the of a composite liner composed of an Maryland MSW landfill permitting ASTM standard for a minimum upper synthetic (plastic) component in program. sampling well diameter is two inches, direct contact with a lower component The first commenter questioned if while the MDE requirement is four at least two feet thick made of revisions made by MDE to their existing inches. He stated that the installation compacted soil (clay). MDE also allows guidances, checklists and procedures to and operation of a four-inch diameter an alternate design that meets the more fully comply with the Federal well was obviously more expensive than performance standards established in requirements, but made before MDE a two-inch well, and his company has § 258.40 (a) and (c). MDE requires that regulations were revised, were in successfully been using two-inch wells. conformance be demonstrated through compliance with the Maryland EPA does not prescribe a minimum well the use of mathematical modeling, such Administrative Procedure Act (MAPA). diameter. MDE’s response was that state as the Hydrologic Evaluation of Landfill This issue was specifically addressed in procedures allow a permittee to request Performance Model (HELP) and a December 15, 1994 letter from MDE to a variance to the four-inch diameter Multimedia Exposure Assessment EPA, in response to a question raised by requirement, and, in fact, they have Model (MULTIMED). MDE has, to date, EPA. MDE, supported by a statement granted such variances to the submitted several alternate liner from their Attorney General’s Office, commenter’s company in the past. systems to EPA under the 40 CFR and referencing several specific existing A commenter also criticized the § 258.40(e) Liner Petition Process, regulations, took the position that their requirement to analyze groundwater which were subsequently approved, existing regulations allow them samples for the extensive parameter lists thereby demonstrating to EPA that this flexibility to expand their checklists, contained in Appendices I and II, and process is successfully in place. procedures, and guidances to require the prohibition of field filtering Submittal to EPA for such alternate liner additional information and/or impose groundwater samples. Both of these approvals will no longer be required additional conditions on persons issues are beyond the scope of this upon EPA final approval of this portion applying for a landfill permit in determination, as they address the 40 of the State’s program. Maryland. In response to the CFR 258 regulations as issued. This commenter, MDE reiterated this commenter also noted that his company Subpart E—Ground-Water Monitoring position to EPA in a letter dated June was working with EPA Headquarters and Corrective Action 26, 1995. Furthermore, MDE has over its concerns on the field-filtering 1. The previously existing Maryland formally agreed to incorporate these ban. We encourage this effort as the requirements for groundwater sampling changes in their regulations as soon as more appropriate means to affect a and corrective action were in need of possible, thereby satisfying another change in the EPA requirements. substantial upgrading to meet the 40 concern expressed by this commenter. A commenter objected to the MDE CFR Part 258 requirements. Using A commenter objected to MDE’s requirement that four samples be taken existing authorities, MDE is requiring all commitment to specify a synthetic to establish background groundwater current landfill operators to amend their membrane final cover whenever the quality conditions. EPA requirements existing ground-water monitoring plans bottom liner permeability is less than do not establish a specific number of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39387 samples to be taken, only that the 258 for closure, post-closure care, and necessary to give notice prior to making number is appropriate to the statistical corrective action. It is believed that its approval effective. method of analysis chosen. MDE these revisions will require an act by the Compliance With Executive Order responded in the June 26, 1995 letter to Maryland legislature to revise the 12866 EPA that they agree, and have revised statute exempting local governments their permit review checklists to more from financial assurance requirements. The Office of Management and Budget specifically reference the federal MDE has committed to submit the has exempted this notice from the criteria. required legislation for consideration at requirements of Section 6 of Executive As a State’s regulations and statutes the next General Assembly session. Order 12866. are amended to comply with the federal Maryland has submitted a revised Certification Under the Regulatory MSWLF landfill regulations, schedule, in a letter to EPA dated June Flexibility Act unapproved portions of a partially 26, 1995, for completing the necessary approved MSWLF permit program may changes to the laws, regulations, and/or Pursuant to the provisions of 5 U.S.C. be approved by the EPA. The State may guidance to comply with the remaining 605(b), I hereby certify that this submit an amended application to EPA 40 CFR part 258 requirements. This approval will not have a significant for review and an adequacy schedule commits to revising the economic impact on a substantial determination will be made using the remaining portions of the MDE program number of small entities. It does not same criteria as for the initial not currently proposed for approval and impose any new burdens on small application. This adequacy have them in effect by December 20, entities. This notice, therefore, does not determination will be published in the 1996. Maryland will submit an require a regulatory flexibility analysis. Federal Register and will summarize application for full program approval to Authority: This notice is issued under the the Agency’s decision and the portion(s) EPA when these revisions are effective. authority of Section 2002, 4005 and 4010(c) of the State MSWLF permit program of the Solid Waste Disposal Act, as amended; affected. It will also provide a 30-day D. Decision 42 U.S.C. 6912, 6945 and 6949(a)(c). public comment period. The adequacy Taking into consideration the public Dated: July 25, 1995. determination will become effective comments received as a result of our W. Michael McCabe, sixty (60) days following publication if tentative determination, and several Regional Administrator. no adverse comments are received. If revisions made to the MDE program as [FR Doc. 95–19002 Filed 8–1–95; 8:45 am] EPA receives adverse comments on its a result thereof, we conclude that the BILLING CODE 6560±50±P adequacy determination, another State of Maryland’s application for Federal Register notice will be adequacy determination meets all of the [OPP±180977; FRL 4968±6] published either affirming or reversing statutory and regulatory requirements the initial decision while responding to established by RCRA. Accordingly, the public comments. Cymoxanil; Receipt of Application for Maryland is granted a determination of To ensure compliance with all of the Emergency Exemption, Solicitation of adequacy for partial approval of its revised Federal Criteria and to obtain Public Comment full EPA approval, MDE must revise the municipal solid waste permit program, following aspects of its permit program. for those portions of their program as AGENCY: Environmental Protection Consequently, these portions of the described above. Agency (EPA). Maryland program are not being Section 4005(a) of RCRA provides that ACTION: Notice. proposed for approval: citizens may use the citizen suit SUMMARY: (1) Post-Closure Care Requirements provisions of Section 7002 of RCRA to EPA has received a specific (§ 258.61)—MDE must amend its enforce the Federal MSWLF criteria in exemption request from the New Jersey existing regulations extending the post- 40 CFR Part 258 independent of any Department of Environmental Protection closure care period of closed landfills State/Tribal enforcement program. As (hereafter referred to as the from a minimum of 5 years to 30 years, explained in the preamble to the final ‘‘Applicant’’) to use the pesticide with the flexibility to increase or MSWLF criteria, EPA expects that any cymoxanil (CAS 57966–95–7) to treat up decrease that period as necessary or owner or operator complying with to 6,500 acres of tomatoes to control demonstrated. The extension of the provisions in a state/tribal program metalaxyl-resistant late blight. The period required for financial assurance approved by EPA should be considered Applicant proposes the use of a new will require legislative action. The State to be in compliance with the Federal (unregistered) chemical; therefore, in must also specifically require leachate Criteria. See 56 FR 50978, 50995 accordance with 40 CFR 166.24, EPA is collection and treatment, as well as gas (October 9, 1991). soliciting public comment before and groundwater monitoring, as post- Today’s action takes effect on the date making the decision whether or not to closure care requirements. MDE has of publication. EPA believes it has good grant the exemption. committed to make these changes. cause under section 553(d) of the DATES: Comments must be received on (2) Subpart G—Financial Assurance Administrative Procedure Act, 5 U.S.C or before August 7, 1995. Criteria (§§ 258.70—258.74)— 553(d), to put this action into effect less ADDRESSES: Three copies of written Maryland’s only existing financial than 30 days after publication in the comments, bearing the identification assurance requirements are limited to Federal Register. All of the notation ‘‘OPP–180977,’’ should be the posting of a $5000 per acre closure requirements and obligations in submitted by mail to: Public Response bond, and even this requirement Maryland’s program are currently in and Program Resource Branch, Field exempts, by statute, local governments, effect as a matter of State law. EPA’s Operations Division (7506C), Office of who currently operate most MSW action today does not impose any new Pesticide Programs, Environmental landfills in Maryland. To comply with requirements with which the regulated Protection Agency, 401 M St., SW., Federal requirements, MDE has community must begin to comply, nor Washington, DC 20460. In person, bring committed to prepare a major revision do these requirements become comments to: Rm. 1132, Crystal Mall #2, to its regulations, adopting the financial enforceable by EPA as federal law. 1921 Jefferson Davis Highway, assurance requirements in 40 CFR part Consequently, EPA does not find it Arlington, VA. 39388 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Comments and data may also be which are resistant to the control of use of special characters and any form submitted electronically by sending choice, metalaxyl. Before the immigrant of encryption. electronic mail (e-mail) to: opp- strains of late blight arrived, all of the The official record for this notice, as [email protected]. Electronic strains in the U.S. were previously well as the public version, as described comments must be submitted as an controlled by treatment with metalaxyl. above will be kept in paper form. ASCII file avoiding the use of special The Applicants state that presently, Accordingly, EPA will transfer all characters and any form of encryption. there are no fungicides registered in the comments received electronically into Comments and data will also be U.S. that will provide adequate control printed, paper form as they are received accepted on disks in WordPerfect in 5.1 of the immigrant strains of late blight. and will place the paper copies in the file format or ASCII file format. All The Applicant states that cymoxanil has official record which will also include comments and data in electronic form been shown to be effective against these all comments submitted directly in must be identified by the docket number strains of late blight. Cymoxanil holds writing. The official record is the paper [OPP-180977]. No Confidential Business current registrations throughout many record maintained at the address in Information (CBI) should be submitted European countries for control of this ‘‘ADDRESSES’’ at the beginning of this through e-mail. Electronic comments on disease. The Applicant indicates that a document. this notice may be filed online at many 75 percent yield reduction is expected The Agency, accordingly, will review Federal Depository Libraries. Additional based on the current infestation. Net and consider all comments received information on electronic submissions revenues are expected to be reduced by during the comment period in can be found below in this document. over $7 million for the affected acreage determining whether to issue the Information submitted in any without the use of cymoxanil. emergency exemption requested by the comment concerning this notice may be The Applicant proposes to apply New Jersey Department of claimed confidential by marking any cymoxanil, manufactured by E. I. Environmental Protection. part or all of that information as CBI. duPont de Nemours Co., as Curzate M- Information so marked will not be 8, at a maximum rate of 0.1 lbs. a.i. (1.25 List of Subjects disclosed except in accordance with lb. of product) per acre by ground or air, procedures set forth in 40 CFR part 2. with a maximum of 3 applications per Environmental protection, Pesticides A copy of the comment that does not season. A 14-day PHI will be observed. and pests, Crisis exemptions. contain CBI must be provided by the Use under this exemption could Dated: July 20, 1995. submitter for inclusion in the public potentially amount to a maximum 1,950 record. Information not marked lb. of cymoxanil. This notice does not Peter Caulkins, confidential may be disclosed publicly constitute a decision by EPA on the Acting Director, Registration Division, Office by EPA without prior notice. All written application. The regulations governing of Pesticide Programs. comments filed pursuant to this notice section 18 require publication of a [FR Doc. 95–19005 Filed 8–1–95; 8:45 am] will be available for public inspection in notice of receipt of an application for a BILLING CODE 6560±50±F Rm. 1132, Crystal Mall No. 2, 1921 specific exemption proposing use of a Jefferson Davis Highway, Arlington, VA, new chemical (i.e., an active ingredient from 8 a.m. to 4:30 p.m., Monday not contained in any currently [OPP±66215; FRL±4965±8] through Friday, except legal holidays. registered pesticide). Such notice FOR FURTHER INFORMATION CONTACT: By provides for opportunity for public Notice of Receipt of Requests to mail: Libby Pemberton, Registration comment on the application. Voluntarily Cancel Certain Pesticide Division (7505W), Office of Pesticide Accordingly, interested persons may Registrations Programs, Environmental Protection submit written views on this subject to Agency, 401 M St., SW., Washington, the Field Operations Division at the AGENCY: Environmental Protection DC 20460. Office location and telephone address above. Agency (EPA). A record has been established for this number: Floor 6, Crystal Station #1, ACTION: Notice. 2800 Jefferson Davis Highway, notice under docket number ‘‘OPP– Arlington, VA, (703) 308–8326; e-mail: 180977’’ (including comments and data SUMMARY: In accordance with Section [email protected]. submitted electronically as described 6(f)(1) of the Federal Insecticide, SUPPLEMENTARY INFORMATION: Pursuant below). A public version of this record, Fungicide and Rodenticide Act (FIFRA), to section 18 of the Federal Insecticide, including printed, paper versions of as amended, EPA is issuing a notice of Fungicide, and Rodenticide Act (FIFRA) electronic comments, which does not receipt of requests by registrants to (7 U.S.C. 136p), the Administrator may, include any information claimed as CBI, voluntarily cancel certain pesticide at her discretion, exempt a state agency is available for inspection from 8 a.m. to registrations. from any registration provision of 4:30 p.m., Monday through Friday, FIFRA if she determines that emergency excluding legal holidays. The public DATES: Unless a request is withdrawn by conditions exist which require such record is located in Room 1132 of the October 31, 1995, orders will be issued exemption. The Applicant has requested Public Response and Program Resources cancelling all of these registrations. the Administrator to issue a specific Branch, Field Operations Division FOR FURTHER INFORMATION CONTACT: By exemption for the use of cymoxanil on (7506C), Office of Pesticide Programs, mail: James A. Hollins, Office of tomatoes to control late blight. Environmental Protection Agency, Pesticide Programs (7502C), Information in accordance with 40 CFR Crystal Mall #2, 1921 Jefferson Davis Environmental Protection Agency, 401 part 166 was submitted as part of this Highway, Arlington, VA. M St., SW., Washington, DC 20460. request. Electronic comments can be sent Office location for commercial courier Recent failures to control late blight in directly to EPA at: delivery and telephone number: Rm. tomatoes as well as potatoes with the [email protected] 216, Crystal Mall No. 2, 1921 Jefferson registered fungicides, have been caused Davis Highway, Arlington, VA 22202. almost exclusively by immigrant strains Electronic comments must be (703) 305–5761; of late blight Phytophthora infestans, submitted as an ASCII file avoiding the [email protected]. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39389 SUPPLEMENTARY INFORMATION: further provides that EPA must publish pesticide products registered under I. Introduction a notice of receipt of any such request section 3 or 24(c) of FIFRA. These in the Federal Register before acting on registrations are listed in sequence by Section 6(f)(1) of the Federal the request. registration number (or company Insecticide, Fungicide and Rodenticide number and 24(c) number) in the Act (FIFRA), as amended, provides that II. Intent to Cancel following Table 1. a pesticide registrant may, at any time, request that any of its pesticide This Notice announces receipt by the registrations be cancelled. The Act Agency of requests to cancel some 32 TABLE 1. --REGISTRATIONS WITH PENDING REQUESTS FOR CANCELLATION Registration no. Product Name Chemical Name 000070±00011 ...... Kill-Ko Horse and Cattle Spray (Butylcarbityl)(6-propylpiperonyl) ether 80% and related compounds 20% Pyrethrins 2,2-Dichlorovinyl dimethyl phosphate 000070±00138 ...... Rigo Wasp Spray with Baygon o-Isopropoxyphenyl methylcarbamate 2,2-Dichlorovinyl dimethyl phosphate 000241 OR±91±0010 .. Pursuit Herbicide Ammonium salt of (+/-)-2-(4,5-dihydro-4-methyl-4-(1-methylethyl)-5- 000303±00150 ...... Zilch Liquid Weed Killer 5-Bromo-3-sec-butyl-6-methyluracil Isooctyl(2-ethyl-4-methylpentyl) 2,4-dichlorophenoxyacetate 000352 TN±94±0005 ... Dupont Bladex 4l Herbicide Cyanazine 000655±00491 ...... Prentox Vapon 2 2,2-Dichlorovinyl dimethyl phosphate 000655±00703 ...... Prentox Fly & Mosquito Killer (Butylcarbityl)(6-propylpiperonyl) ether 80% and related compounds 20% Pyrethrins 2,2-Dichlorovinyl dimethyl phosphate 000655±00730 ...... Prentox Greenhouse Spray 2,2-Dichlorovinyl dimethyl phosphate 001677±00132 ...... Solidyne Polyethoxypolypropoxyethanol - iodine complex Phosphoric acid 001677±00138 ...... Mikrocide onylphenoxypolyethoxyethanol - iodine complex Phosphoric acid 001677±00151 ...... Iodofoam Concentrate 20 onylphenoxypolyethoxyethanol - iodine complex 001769±00063 ...... Flair Aerosal Air Sanitizer and Deodorant 1,2-Propanediol 001769±00255 ...... Root Out 2,6-Dichlorobenzonitrile 001769±00277 ...... ational Chemsearch San-5-Pine 2-Benzyl-4-chlorophenol Pine oil 001769±00322 ...... Aerosol Paint-Sect O,O-Diethyl O-(3,5,6-trichloro-2-pyridyl) phosphorothioate 003125 WA±80±0069 .. Meta-Systox-R Spray Concentrate S-(2-(Ethylsulfinyl)ethyl) O,O-dimethyl phosphorothioate 004581±00230 ...... Ziram F-4 Zinc dimethyldithiocarbamate 005197±00051 ...... Kem New Formula 7±11 Ammonium 2-phenylphenate 006218±00013 ...... Flora-Fog Vapona Greenhouse Fogging Insec- 2,2-Dichlorovinyl dimethyl phosphate ticide 006218±00026 ...... Flora Fume Vapona Greenhouse Misting In- 2,2-Dichlorovinyl dimethyl phosphate secticide 006218±00070 ...... Summit Tobacco Warehouse Fogging Insecti- 2,2-Dichlorovinyl dimethyl phosphate cide 006378±00022 ...... Lab One Potassium 2-benzyl-4-chlorophenate o-Phenylphenol, potassium salt 006962±00027 ...... Steriloid Bacteriostat Potassium 2-benzyl-4-chlorophenate o-Phenylphenol, potassium salt 007401±00060 ...... Ferti-Lome Universal Garden Spray (contain- 2,4-Dinitro-6-octyl* phenyl crotonate, 2,6-dinitro-4-octyl* phenyl cro- ing Sevin & K tonate and 1-Naphthyl-N-methylcarbamate 007969±00042 ...... Basagran Manufacturers Concentrate 3-Isopropyl-1H-2,1,3-benzothiadiazin-4(3H)-one-2,2-dioxide, sodium salt 007969±00054 ...... Laddok Herbicide 2-Chloro-4-(ethylamino)-6-(isopropylamino)-s-triazine 3-Isopropyl-1H-2,1,3-benzothiadiazin-4(3H)-one-2,2-dioxide, sodium salt 007969±00103 ...... Prompt Herbicide 2-Chloro-4-(ethylamino)-6-(isopropylamino)-s-triazine 3-Isopropyl-1H-2,1,3-benzothiadiazin-4(3H)-one-2,2-dioxide, sodium salt 010370±00127 ...... Staffel's Malathion 25% Wettable Powder O,O-Dimethyl phosphorodithioate of diethyl mercaptosuccinate 019713±00222 ...... Malathion Grain Protectant Dust O,O-Dimethyl phosphorodithioate of diethyl mercaptosuccinate 019713±00335 ...... Aidex Mal Ex Dust Dry Insecticid O,O-Dimethyl phosphorodithioate of diethyl mercaptosuccinate 064296±00001 ...... Bio-Path Fly Control Chamber (Z)-9-Tricosene Metarhizium anisopliae Strain ESF1 Unless a request is withdrawn by the cancelling all of these registrations. should contact the applicable registrant registrant within 90 days of publication Users of these pesticides or anyone else directly during this ninety-day period. of this notice, orders will be issued desiring the retention of a registration 39390 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices The following Table 2 includes the cancellation. The active ingredient is further sale and use comply with the names and addresses of record for all listed in the following Table 3, with the EPA-approved label and labeling of the registrants of the products in Table 1, in EPA Company and CAS Number. affected product(s). Exceptions to these sequence by EPA Company Number. general rules will be made in specific TABLE 3. -- ACTIVE INGREDIENTS cases when more stringent restrictions TABLE 2. --REGISTRANTS REQUESTING WHICH WOULD DISAPPEAR AS A RE- on sale, distribution, or use of the VOLUNTARY CANCELLATION SULT OF REGISTRANTS' REQUESTS products or their ingredients have TO CANCEL already been imposed, as in Special EPA Review actions, or where the Agency Com- has identified significant potential risk pany Company Name and Address EPA No. Cas Chemical Name Com- concerns associated with a particular No. pany chemical. No. 000070 Wilbur-Ellis Co., Box 16458, Fresno, CA 93755. 52704± Ammonium 2- 005197 List of Subjects 000241 American Cyanamid Co., Agri Re- 98±0. phenylphenate Environmental protection, Pesticides search Div - U.S. Regulatory Af- and pests, Product registrations. fairs, Box 400, Princeton, NJ 08543. IV. Procedures for Withdrawal of Dated: July 13, 1995. 000303 Huntington Laboratories,inc., 968± Request Frank Smith, 970 E. Tipton St., Huntington, IN 46750. Registrants who choose to withdraw a Director, Program Management and Support 000352 E. I. Du Pont De Nemours & Co, request for cancellation must submit Division, Office of Pesticide Programs. Inc., Barley Mill Plaza, Walker's such withdrawal in writing to James A. [FR Doc. 95–18873 Filed 8–1–95; 8:45 am] Mill, Wilmington, DE 19880. Hollins, at the address given above, BILLING CODE 6560±50±F 000655 Prentiss Inc., 21 Vernon Street, postmarked before October 31, 1995. C.B. 2000, Floral Park, NY This written withdrawal of the request 11001. for cancellation will apply only to the [OPP±64027; FRL±4965±5] 001677 Ecolab Inc., 370 Wabasha St. applicable 6(f)(1) request listed in this Ecolab Center, St Paul, MN Cancellation of Pesticides for Non- 55102. notice. If the product(s) have been subject to a previous cancellation Payment of 1995 Registration 001769 CH Corp., 2727 Chemsearch Maintenance Fees Blvd., Irving, TX 75062. action, the effective date of cancellation 003125 Bayer Corp., Agriculture Division, and all other provisions of any earlier AGENCY: Environmental Protection 8400 Hawthorn Rd., Box 4913, cancellation action are controlling. The Agency (EPA). Kansas City, MO 64120. withdrawal request must also include a ACTION: Notice. 004581 Elf Atochem North America Inc., commitment to pay any reregistration Agrichemicals Div, 2000 Market fees due, and to fulfill any applicable SUMMARY: Since the amendments of St, 21st Floor, Philadelphia, PA October, 1988, the Federal Insecticide, 19103. unsatisfied data requirements. Fungicide, and Rodenticide Act (FIFRA) 005197 Systems General, Inc., Box 152170, V. Provisions for Disposition of Existing Irving, TX 75015. has required payment of an annual 006218 Summit Chemical Co, 7657 Canton Stocks maintenance fee to keep pesticide Center Dr, Baltimore, MD 21224. The effective date of cancellation will registrations in effect. The fee due last 006378 Lab Automated Chemicals, Division be the date of the cancellation order. January 15 has gone unpaid for about of Systems General Inc., Box The orders effecting these requested 1,215 registrations. Section 4(i)(5)(D) of 152170, Irving, TX 75015. cancellations will generally permit a FIFRA provides that the Administrator 006962 Madison Bionics, Division of Sys- registrant to sell or distribute existing may cancel these registrations by order tems General, Inc., 1630 E. and without a hearing; orders to cancel Northgate, Irving, TX 75062. stocks for one year after the date the 007401 Voluntary Purchasing Group Inc., cancellation request was received. This all but a few of them have been issued Box 460, Bonham, TX 75418. policy is in accordance with the within the past few days. The Agency is 007969 BASF Corp., Agricultural Products, Agency’s statement of policy as deferring cancellation for certain of Box 13528, Research Triangle prescribed in Federal Register No. 123, these registrations, however, to permit Park, NC 27709. Vol. 56, dated June 26, 1991. Exceptions time for affected users to explore 010370 Agrevo Environmental Health, 95 to this general rule will be made if a alternatives to cancellation directly with Chestnut Ridge Rd, Montvale, NJ product poses a risk concern, or is in the registrants. 07645. DATES: Reports of agreements to support 019713 Drexel Chemical Co, Box 13327, noncompliance with reregistration Memphis, TN 38113. requirements, or is subject to a data call- continued registration or transfer of the 064296 Ecoscience Corp., 377 Plantation in. In all cases, product-specific registrations for which cancellation is Dr, Worcester, MA 01605. disposition dates will be given in the being deferred must be received by cancellation orders. October 31, 1995. Existing stocks are those stocks of FOR FURTHER INFORMATION CONTACT: To III. Loss of Active Ingredients registered pesticide products which are report agreements to support continued Unless the requests for cancellation currently in the United States and registration of any of the products for are withdrawn, one pesticide active which have been packaged, labeled, and which cancellation has been deferred, ingredients will not longer appear in released for shipment prior to the for instructions on payment of any registered products. Those who are effective date of the cancellation action. delinquent maintenance fees for these concerned about the potential loss of Unless the provisions of an earlier order products, or for further information on this active ingredient for pesticidal use apply, existing stocks already in the the maintenance fee program in general, are encouraged to work directly with the hands of dealers or users can be contact by mail: John Jamula, Office of registrant to explore the possibility of distributed, sold or used legally until Pesticide Programs (7504C), their withdrawing the request for they are exhausted, provided that such Environmental Protection Agency, 401 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39391 M St., SW., Washington, DC 20460. Maintenance fees have been paid for should serve in most cases to cushion Office location and telephone number: about 16,704 section 3 registrations, or the impact of these cancellations while Rm. 226, Crystal Mall No. 2, 1921 about 95 percent of the registrations on the market adjusts. Jefferson Davis Highway South, file in December, 1994. Fees have been Second, in some cases unique non- Arlington, VA 22202, (703) 305–6426. e- paid for about 2,574 section 24(c) agricultural uses will disappear, mail [email protected]. registrations, or about 90 percent of the although the active ingredients will SUPPLEMENTARY INFORMATION: total on file in November, 1994. remain available for different uses in Cancellations for non-payment of the I. Introduction other products. When this situation maintenance fee affect about 940 section occurs, there may be more serious Section 4(i)(5) of FIFRA, as amended 3 registrations and about 275 section impacts on users of the canceled in October, 1988 and again in December, 24(c) registrations. products. Once again, existing stocks of 1991 requires that all pesticide II. Product Cancellations not affecting the canceled products already in registrants pay an annual registration channels of trade will be usable to maintenance fee, due by January 15 of status of Active Ingredient mitigate these impacts in the short term. each year, to keep their registrations in In the case of all but four section 3 For the longer term the mechanisms of effect. This requirement applies to all registrations discussed in Section III section 3 amendments and 24(c) registrations granted under section 3 as below, the active ingredients will registrations will remain available to well as those granted under section remain available in other registered obtain replacement registrations. 24(c) to meet special local needs. products. We anticipate two types of Neither of these types of impact Registrations for which the fee is not impact for the bulk of these paid are subject to cancellation by order leaves users without the means to cancellations. First, some of these replace lost registrations; neither is and without a hearing. disappearing registrations will be The 1990 Farm Bill amended FIFRA considered to justify further deferral of survived in the market by substantially to allow the Administrator to reduce or cancellations for non-payment of the identical registrations. These waive maintenance fees for minor maintenance fee. Thus all these substantially identical products may agricultural use pesticides when she registrations for which the active not, however, be readily available determines that the fee would be likely ingredient will remain in other products wherever a disappearing product was to cause significant impact on the have been canceled. sold, so there may be local or regional availability of the pesticide for the use. disruptions while distribution patterns The Agency has waived the fee for 52 III. Cancellations Leading to minor agricultural use registrations at are adjusted. We expect these Disappearance of Active Ingredients the request of the registrants. disruptions to be minor and temporary. The cancellation orders generally A second type of impact arises if an In late November, 1994, all holders of active ingredient that is now or has either section 3 registrations or section permit registrants to continue to sell and recently been available in the 24(c) registrations were sent lists of their distribute existing stocks of the canceled marketplace disappears. The Agency active registrations, along with forms products until January 15, 1996, the due believes there are four registered active and instructions for responding. They date for the next annual registration ingredients in this category. Of these were asked to identify which of their maintenance fee. Existing stocks already four active ingredients, none has been registrations they wished to maintain in in the hands of dealers or users, subject to prior regulatory action and all effect, and to calculate and remit the however, can generally be distributed, are likely to disappear as a consequence appropriate maintenance fees. Most sold or used legally until they are of these cancellations. One is a plant responses were received by the statutory exhausted. Existing stocks are defined growth regulator; one is a microbial; one deadline of January 15. A notice of as those stocks of a registered pesticide intent to cancel was sent in mid-March product which are currently in the U.S. is a microbiocide, and one is a to companies who did not respond and and which have been packaged, labeled bacteriostat. If the last section 3 to companies who responded, but paid and released for shipment prior to the registration for an ingredient disappears, for less than all of their registrations. effective date of the order. the section 24(c) registration process is Late payments of the fees were accepted The exceptions to these general rules unlikely to be able to compensate for the until April 15, when the actual process are cases where more stringent loss. of cancellation was begun. restrictions on sale, distribution, or use These four ingredients, grouped by Since mailing the notices, EPA has of the products have already been these same general categories of use maintained a toll-free inquiry number imposed, through Special Reviews or patterns, are listed along with the EPA through which the questions of affected other Agency actions. These general Company Number of their registrants in registrants have been answered. provisions for disposition of stocks the following Table 1. TABLE 1. -- ACTIVE INGREDIENTS WITH RECENT PRODUCTION PENDING CANCELLATION OF ALL PRODUCTS FOR NON- PAYMENT OF 1995 REGISTRATION MAINTENANCE FEES, IN SEQUENCE BY BROAD USE PATTERN Chemical Name Registration No. Product Name A. Plant Growth Regulator. Glyphosate, Sesquisodium ...... 000524±00332 Polado Plant Growth Salt Regulator B. Microbial Pesticide. Bacillus Thuringiensis subsp. san diego ...... 053219±00001 M-ONE Insecticide C. Microbiocide. Amines, N-coco alkyl-trimethylenedi-, adipates ... 010349±00014 NALCO VISCO 1151 D. Bacteriostat. Quaternary ammonium compounds, benzyl-C10± 010349±00003 NALCO ADOMALL 18-alkylbis(hydroxy ethyl)-, chloride. 39392 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Because these active ingredients are continue to support the ingredient, or to (2) that an agreement has been reached likely to disappear with their product identify third parties who would be to transfer the registration to another registration, the Agency has deferred for willing to support the ingredient if the party, we will reinstate the registration 90 days the cancellation of these 4 registration were transferred to them. to full active status as soon as the registrations. During that time those The full names and addresses of current delinquent maintenance fee payment is registrants or other affected persons may registrants appear in Table 2 below. We received. It should be emphasized, make arrangements to continue the also encourage users to consult with the however, that any such registrations registration. Cooperative Extension Service or other would still be subject to all We encourage individual users or user local sources to identify alternatives to requirements for reregistration, groups who are concerned about the these active ingredients. including reregistration fees (except as potential loss of these active ingredients If the Agency is notified within 90 to work directly with the registrant days of this notice at the address given they may be reduced through the identified by the first 6 digits of the Reg. above either (1) that the registrant will statutory provisions for small businesses No. in Table 1 to persuade them to continue to support the registration, or or low volume uses). TABLE 2. -- REGISTRANTS OF SELECTED REGISTRATIONS PENDING CANCELLATION FOR NON-PAYMENT OF 1995 REGISTRATION MAINTENANCE FEE EPA Company No. Company Name and Address 000524 Monsanto Co., 700 14th St., N.W., Suite 1100, Washington, DC 20005. 010349 NALCO Chemical Co., One NALCO Center, Box 87, Naperville, IL 60563. 053219 MYCOGEN Corp., 4980 Carroll Canyon Rd., San Diego, CA 92121. In addition to publishing this notice [FRL±5269±2] FOR FURTHER INFORMATION CONTACT: in the Federal Register, we are sending Cheryl Allen, Office of Public Affairs, at it directly to the States, to the U.S. 42 U.S.C. Section 122(h) Proposed (312) 353–6196. Administration Agreement Department of Agriculture, and to other SUPPLEMENTARY INFORMATION: The parties who have previously expressed AGENCY: U.S. Environmental Protection Nelson McCoy Pottery site, an concern for minor uses. They should be Agency (USEPA). abandoned pottery production plant receiving the notice at approximately ACTION: Proposed settlement. located in a rural/residential area in the same time it is published. We hope Roseville, Ohio (Muskingum County), is that this extraordinary notification SUMMARY: USEPA is proposing to settle not on the National Priorities List. In effort, and the deferral of cancellations a claim under section 107 of CERCLA response to a request from the State of for the most sensitive registrations, will for response costs incurred during Ohio, USEPA investigated the Nelson serve to prevent any avoidable loss of removal activities at the Nelson McCoy McCoy site and undertook response critical minor use pesticides. Pottery site in Roseville, OH. Respondents have agreed to reimburse actions designed to minimize the Because so many registrations are USEPA in the amount of $125,000. immediate threat, test the materials involved, it would be impractical to list USEPA today is proposing to approve involved and properly dispose of the those which have been canceled in this this settlement offer because it hazardous waste. notice. Complete lists of registrations reimburses USEPA, in part, for costs Respondents are a number of canceled for non-payment of the incurred during USEPA’s removal individuals and a corporation that maintenance fee will, however, be action. generated hazardous substances at the available for reference during normal DATES: Comments on this proposed site in the form of lead contaminated business hours in the OPP Public settlement must be received by water, flammable wastes and hazardous Docket, Room 1128, Crystal Mall 2, 1921 September 1, 1995. solid wastes, as well as another party Jefferson Davis Highway South, ADDRESSES: Copies of the proposed seeking to purchase the site for future Arlington VA, and at each EPA Regional settlement are available at the following use. A 30-day period, beginning on the Office. Product-specific status inquiries address for review: (It is recommended date of publication, is open pursuant to may be made by telephone by calling that you telephone Ms. Cheryl Allen at section 122(i) of CERCLA for comments toll-free 1–800–444–7255. (312) 353–6196 before visiting the on the proposed settlement. Region V Office). U.S. Environmental List of Subjects Protection Agency, Region V, Office of Comments should be sent to Ms. Superfund, Removal and Enforcement Cheryl Allen of the Office of Public Environmental protection, Response Branch, 77 W. Jackson Blvd. Affairs (P–19J), U.S. Environmental Agricultural commodities, Pesticides Chicago, Illinois 60604. Protection Agency, Region V, 77 W. and pests. Jackson Boulevard, Chicago, Illinois Comments on this proposed Dated: July 19, 1995. settlement should be addressed to: 60604. William E. Muno, Daniel M. Barolo, (Please submit an original and three copies, if possible) Cheryl Allen, Associate Director for Superfund. Director, Office of Pesticide Programs. Community Relations Coordinator, [FR Doc. 95–18983 Filed 8–1–95; 8:45 am] [FR Doc. 95–18872 Filed 8–1–95; 8:45 am] Office of Public Affairs, U.S. BILLING CODE 6560±50±M BILLING CODE 6560±50±F Environmental Protection Agency, Region V, 77 W. Jackson Boulevard (P– 19J), Chicago Illinois 60604, (312) 353– 6196. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39393 [FRL-OW±5270±8] Public Law 104–13. Comments Form No.: N/A. concerning the Commission’s need for Type of Review: Extension of existing Interim Economic Guidance for Water this information, the accuracy of the collection. Quality Standards Workbook provided burden estimates, and any Respondents: Business and other for- AGENCY: Environmental Protection suggested methods for minimizing profit. Agency. respondent burden, including the use of Number of Respondents: 20 recordkeepers; and 400 respondents. ACTION: Notice of availability. automated information techniques are requested. Estimated Time Per Response: 5 hours SUMMARY: EPA now has available Written comments should be per recordkeeper; and 23.125 hours per Interim Economic Guidance for Water submitted on or before October 2, 1995. response. Quality Standards Workbook, (EPA If you anticipate that you will be Total Annual Burden: 9,350. 823–B–95–002). This interim document submitting comments, but find it Needs and Uses: Parties performing provides guidance with respect to the difficult to do so within the period of measurements for certification or economic considerations incorporated time allowed by this notice, you should verification of intentional or in the water quality standards regulation advise the contact listed below as soon unintentional radiators will be subject affecting uses, variances, and the as possible. to the requirement to file horizontal and vertical site attenuation data of their antidegradation policy. Direct all comments to Dorothy The purpose of this interim guidance measurement facility, that sshows Conway, Federal Communications, conformance with the criteria of is to assist States, Tribes and other Room 234, 1919 M St., NW., affected parties in understanding the American National Standards Institute Washington, DC 20554 or via internet to (ANSI) test procedure C63.4–1922. The economic factors that may be [email protected]. considered and the types of tests that information gathered is used by the can be used to determine if a designated For additional information or copies Commission to ensure that data that use can be attained, if a variance is of the information collections contact accompanies all requests for equipment warranted, or if degradation of high Dorothy Conway at 202–418–0217 or via authorizations is valid, and that proper quality water is warranted. States may internet at [email protected]. Copies testing procedures are utilized. Testing use alternative economic analysis from may also be obtained via fax by ensures that potential interference to that offered in the interim guidance. contacting the Commission’s Fax on radio communications is controlled, and EPA plans to revise this guidance Demand System. To obtain fax copies if necessary the data may be used for from time to time based on experience call 202–418–0177 from the handset on investigating complaints of harmful gained in its implementation. your fax machine, and enter the interference or for verifying the Comments on this guidance are document retrieval number indicated manufactures compliance with the welcome at any time. below for the collection you wish to rules. request, when prompted. FOR FURTHER INFORMATION CONTACT: Fax Document Retrieval Number: Rafael Stein, Economic and Statistical OMB Approval Number: 3060–0028. 600398. Analysis Branch, Office of Science and Title: Application for Authorization in Federal Communications Commission. the Auxiliary Radio Broadcast Services. Technology, Office of Water, William F. Caton, Environmental Protection Agency, 401 Form No.: FCC 313. Type of Review: Extension of existing Acting Secretary. M Street, SW, Washington, DC, 20460. [FR Doc. 95–19086 Filed 8–1–95; 8:45 am] The telephone number is 202–260– collection. Resopondents: Businesses or other BILLING CODE 6712±01±F 5385. for-profit; State, Local or Tribal FOR COPIES OF THE DOCUMENT CONTACT: Governments. Water Resource Center, Environmental Number of Respondents: 1,500. FEDERAL MARITIME COMMISSION Protection Agency, 401 M Street, SW, Estimated Time Per Response: 5.166 Washington, DC 20460. The telephone hours. Ocean Freight Forwarder License number is 202–260–7786. Total Annual Burden: 7,749 hours. Applicants Needs and Uses: This collection of Dated: June 28, 1995. Notice is hereby given that the information is used by applicants/ Dana D. Minerva, following applicants have filed with the licensees of AM, FM and TV Broadcast Deputy Assistant Administrator, Office of Federal Maritime Commission stations and eligibile networks when Water. applications for licenses as ocean freight applying for a remote pickup, aural [FR Doc. 95–18993 Filed 8–1–95; 8:45 am] forwarders pursuant to section 19 of the microwave, television microwave and BILLING CODE 6560±50±P Shipping Act of 1984 (46 U.S.C. app. other auxiliary Broadcast stations. The 1718 and 46 CFR 510). data collected is used by FCC staff to Persons knowing of any reason why determine eligibility for a license; to FEDERAL COMMUNICATIONS any of the following applicants should determine if the proposal will meet COMMISSION not receive a license are requested to statutory requirements; to aid in contact the Office of Freight Forwarders, frequency spectrum management and to Public Notice Federal Maritime Commission, ensure interference will not be cuased. Washington, D.C. 20573. July 28, 1995 This data is also used to issue an The Federal Communications, as part authorization and may be used for Shelley Moine Customs Brokers, 1200 S. of its continuing effort to reduce enforcement purposes when necessary. 192nd, Suite 204, Seattle, WA 98148, paperwork burden invites the general Fax Document Retrieval Number: Shelley Moine, Sole Proprietor public and other Federal agencies to 600028. Prime International Agency Inc., 2111 take this opportunity to comment on the OMB Approval No: 3060–0398. South Acacia Ave., Compton, CA following proposed and/or continuing Title: Sections 2.948, 15.117(G)(2), 90220, Officers: Stephen Juang, information collections, as required by 15.117(G)(3), 80.1053(C) Equipment President, Johnny Wang, Director. the Paperwork Reduction Act of 1995, Authorization Measurement Standards. Dated: July 27, 1995. 39394 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices By the Federal Maritime Commission. FEDERAL RESERVE SYSTEM individuals, businesses, and non-profit Joseph C. Polking, organizations, pursuant to § Secretary. Community Trust Financial Services 225.25(b)(21) of the Board’s Regulation [FR Doc. 95–18908 Filed 8–1–95; 8:45 am] Corporation; Acquisition of Company Y. Engaged in Permissible Nonbanking BILLING CODE 6730±01±M Board of Governors of the Federal Reserve Activities System, July 27, 1995. The organization listed in this notice Jennifer J. Johnson, Performance Review Board has applied under § 225.23(a)(2) or (f) Deputy Secretary of the Board. [FR Doc. 95–18932 Filed 8–1–95; 8:45 am] AGENCY: Federal Maritime Commission. of the Board’s Regulation Y (12 CFR 225.23(a)(2) or (f)) for the Board’s BILLING CODE 6210±01±F ACTION: Notice. approval under section 4(c)(8) of the Bank Holding Company Act (12 U.S.C. SUMMARY: Notice is hereby given of the 1843(c)(8)) and § 225.21(a) of Regulation Fleet Financial Group, Inc. ; Change in names of the members of the Bank Control Notices; Acquisitions of Performance Review Board. Y (12 CFR 225.21(a)) to acquire or control voting securities or assets of a Shares of Banks or Bank Holding FOR FURTHER INFORMATION CONTACT: company engaged in a nonbanking Companies; Correction William J. Herron, Jr., Director of activity that is listed in § 225.25 of Personnel, Federal Maritime This notice corrects a notice (FR Doc. Regulation Y as closely related to 95-17974) published on page 37642 of Commission, 800 North Capitol Street, banking and permissible for bank Washington, DC 20573. the issue for Friday, July 21, 1995. holding companies. Unless otherwise Under the Federal Reserve Bank of SUPPLEMENTARY INFORMATION: Sec. noted, such activities will be conducted Boston heading, the entry for Fleet 4314(c) (1) through (5) of title 5, U.S.C., throughout the United States. Financial Group, Inc., is revised to read requires each agency to establish, in The application is available for as follows: accordance with regulations prescribed immediate inspection at the Federal Comments on this application must by the Office of Personnel Management, Reserve Bank indicated. Once the be received by September 12, 1995. application has been accepted for one or more performance review boards. Board of Governors of the Federal Reserve The board shall review and evaluate the processing, it will also be available for System, July 27, 1995. initial appraisal of a senior executive’s inspection at the offices of the Board of Jennifer J. Johnson, performance by the supervisor, along Governors. Interested persons may Deputy Secretary of the Board. with any recommendations to the express their views in writing on the appointing authority relative to the question whether consummation of the [FR Doc. 95–18934 Filed 8–1–95; 8:45 am] performance of the senior executive. proposal can ‘‘reasonably be expected to BILLING CODE 6210±01±F William D. Hathaway, produce benefits to the public, such as greater convenience, increased Chairman. Firstbank of Illinois Co., et al.; competition, or gains in efficiency, that Formations of; Acquisitions by; and The Members of the Performance outweigh possible adverse effects, such Mergers of Bank Holding Companies Review Board Are as undue concentration of resources, 1. Ming Chen Hsu, Commissioner decreased or unfair competition, The companies listed in this notice conflicts of interests, or unsound have applied for the Board’s approval 2. Delmond J.H. Won, Commissioner banking practices.’’ Any request for a under section 3 of the Bank Holding 3. Joe Scroggins, Jr., Commissioner hearing on this question must be Company Act (12 U.S.C. 1842) and § 4. Harold J. Creel, Commissioner accompanied by a statement of the 225.14 of the Board’s Regulation Y (12 5. Norman D. Kline, Chief reasons a written presentation would CFR 225.14) to become a bank holding Administrative Law Judge not suffice in lieu of a hearing, company or to acquire a bank or bank 6. Frederick M. Dolan, Jr., identifying specifically any questions of holding company. The factors that are Administrative Law Judge fact that are in dispute, summarizing the considered in acting on the applications 7. Charles E. Morgan, Administrative evidence that would be presented at a are set forth in section 3(c) of the Act Law Judge hearing, and indicating how the party (12 U.S.C. 1842(c)). 8. Robert D. Bourgoin, General Counsel commenting would be aggrieved by Each application is available for 9. Joseph C. Polking, Secretary approval of the proposal. immediate inspection at the Federal 10. Edward P. Walsh, Managing Director Comments regarding the application Reserve Bank indicated. Once the 11. Bruce A. Dombrowski, Deputy must be received at the Reserve Bank application has been accepted for Managing Director indicated or the offices of the Board of processing, it will also be available for 12. Vern W. Hill, Director, Bureau of Governors not later than August 16, inspection at the offices of the Board of Hearing Counsel 1995. Governors. Interested persons may 13. Sandra L. Kusumoto, Director, A. Federal Reserve Bank of Atlanta express their views in writing to the Bureau of Administration (Zane R. Kelley, Vice President) 104 Reserve Bank or to the offices of the 14. Austin L. Schmitt, Director, Bureau Marietta Street, N.W., Atlanta, Georgia Board of Governors. Any comment on of Economics and Agreement 30303: an application that requests a hearing Analysis 1. Community Trust Financial must include a statement of why a 15. Norman W. Littlejohn, Director, Services Corporation, Hiram, Georgia; to written presentation would not suffice Bureau of Investigations establish Community Loan Company, in lieu of a hearing, identifying Hiram, Georgia, a joint venture with 16. Bryant L. VanBrakle, Director, specifically any questions of fact that Danny H. Drummond, and thereby Bureau of Tariffs, Certification and are in dispute and summarizing the engage in the sale of credit-related Licensing. evidence that would be presented at a insurance, pursuant to § 225.25(b)(8)(i) hearing. [FR Doc. 95–18907 Filed 8–1–95; 8:45 am] of the Board’s Regulation Y, and tax Unless otherwise noted, comments BILLING CODE 6730±01±M planning and preparation services to regarding each of these applications Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39395 must be received not later than August of TradeBank and HSBC will control 20 1. New York Mills Bancshares, Inc., 25, 1995. percent of the voting shares of New York Mills, Minnesota; to engage A. Federal Reserve Bank of Chicago TradeBank. de novo in lending activities pursuant to (James A. Bluemle, Vice President) 230 Board of Governors of the Federal Reserve § 225.25(b)(1) of the Board’s Regulation South LaSalle Street, Chicago, Illinois System, July 27, 1995. Y. 60690: Jennifer J. Johnson, Board of Governors of the Federal Reserve 1. Firstbank of Illinois Co., Deputy Secretary of the Board. System, July 27, 1995. Springfield, Illinois; to acquire 100 Jennifer J. Johnson, percent of the voting shares of [FR Doc. 95–18933 Filed 8–1–95; 8:45 am] Confluence Bancshares Corp., St. Peters, BILLING CODE 6210±01±F Deputy Secretary of the Board. Missouri, and thereby indirectly acquire [FR Doc. 95–18935 Filed 8–1–95; 8:45 am] BILLING CODE 6210±01±F Duchesne Bank, St. Peters, Missouri. New York Mills Bancshares, Inc.; B. Federal Reserve Bank of St. Louis Notice of Application to Engage de (Randall C. Sumner, Vice President) 411 novo in Permissible Nonbanking Locust Street, St. Louis, Missouri 63166: Norwest Corporation; Acquisitions of Activities 1. First Banks, Inc., Clayton, Missouri; Companies Engaged in Permissible to acquire at least 50 percent of the The company listed in this notice has Nonbanking Activities voting shares of First Commercial filed an application under § 225.23(a)(1) The organizations listed in this notice Bancorp, Inc., Sacramento, California, of the Board’s Regulation Y (12 CFR have applied under § 225.23(a)(3) of the and thereby indirectly acquire First 225.23(a)(1)) for the Board’s approval Board’s Regulation Y (12 CFR Commercial Bank, Sacramento, under section 4(c)(8) of the Bank 225.23(a)(3)) for the Board’s approval California. Comments regarding this Holding Company Act (12 U.S.C. under section 4(c)(8) of the Bank application must be received not later 1843(c)(8)) and § 225.21(a) of Regulation Holding Company Act (12 U.S.C. than August 11, 1995. Y (12 CFR 225.21(a)) to commence or to 1843(c)(8)) and § 225.21(a) of Regulation C. Federal Reserve Bank of Kansas engage de novo, either directly or Y (12 CFR 225.21(a)) to acquire or City (John E. Yorke, Senior Vice through a subsidiary, in a nonbanking control voting securities or assets of a President) 925 Grand Avenue, Kansas activity that is listed in § 225.25 of company engaged in a nonbanking City, Missouri 64198: Regulation Y as closely related to activity. Unless otherwise noted, such 1. Rice Insurance Agency, Inc., banking and permissible for bank Strasburg, Colorado; to acquire 100 activities will be conducted throughout holding companies. Unless otherwise the United States. percent of the voting shares of Collegiate noted, such activities will be conducted Each application is available for Peaks Bancorporation, Buena Vista, throughout the United States. Colorado and thereby indirectly acquire The application is available for immediate inspection at the Federal Collegiate Peaks Bank, Buena Vista, immediate inspection at the Federal Reserve Bank indicated. Once the Colorado. Reserve Bank indicated. Once the application has been accepted for D. Federal Reserve Bank of San application has been accepted for processing, it will also be available for Francisco (Kenneth R. Binning, processing, it will also be available for inspection at the offices of the Board of Director, Bank Holding Company) 101 inspection at the offices of the Board of Governors. Interested persons may Market Street, San Francisco, California Governors. Interested persons may express their views in writing on the 94105: express their views in writing on the question whether consummation of the 1. First Saving Bank of Washington question whether consummation of the proposal can ‘‘reasonably be expected to Bancorp, Inc., Walla Walla, Washington; proposal can ‘‘reasonably be expected to produce benefits to the public, such as to become a bank holding company by produce benefits to the public, such as greater convenience, increased acquiring 100 percent of the voting greater convenience, increased competition, or gains in efficiency, that shares of First Savings Bank of competition, or gains in efficiency, that outweigh possible adverse effects, such Washington, Walla Walla, Washington, outweigh possible adverse effects, such as undue concentration of resources, in connection with the conversion of as undue concentration of resources, decreased or unfair competition, First Savings Bank of Washington decreased or unfair competition, conflicts of interests, or unsound Bancorp, Walla Walla, Washington, conflicts of interests, or unsound banking practices.’’ Any request for a from a mutual bank holding company to banking practices.’’ Any request for a hearing on this question must be a stock holding company. hearing on this question must be accompanied by a statement of the E. Federal Reserve Bank of San accompanied by a statement of the reasons a written presentation would Francisco (Kenneth R. Binning, reasons a written presentation would not suffice in lieu of a hearing, Director, Bank Holding Company) 101 not suffice in lieu of a hearing, identifying specifically any questions of Market Street, San Francisco, California identifying specifically any questions of fact that are in dispute, summarizing the 94105, or Federal Reserve Bank of New fact that are in dispute, summarizing the evidence that would be presented at a York (William L. Rutledge, Senior Vice evidence that would be presented at a hearing, and indicating how the party President) 33 Liberty Street, New York, hearing, and indicating how the party commenting would be aggrieved by New York 10045: commenting would be aggrieved by approval of the proposal. 1. Wells Fargo and Company, San approval of the proposal. Unless otherwise noted, comments Francisco, California (Wells Fargo); and Comments regarding the application regarding each of these applications HSBC Holdings PLC, London, United must be received at the Reserve Bank must be received at the Reserve Bank Kingdom, HSBC Holdings BV, indicated or the offices of the Board of indicated for the application or the Amsterdam, The Netherlands, and Governors not later than August 16, offices of the Board of Governors not Marine Midland Banks, Inc., Buffalo, 1995. later than August 16, 1995. New York, to acquire Wells Fargo HSBC A. Federal Reserve Bank of A. Federal Reserve Bank of Trade Bank, N.A., San Francisco, Minneapolis (James M. Lyon, Vice Minneapolis (James M. Lyon, Vice California (TradeBank). Wells Fargo will President) 250 Marquette Avenue, President) 250 Marquette Avenue, control 80 percent of the voting shares Minneapolis, Minnesota 55480: Minneapolis, Minnesota 55480: 39396 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 1. Norwest Corporation, Minneapolis, regarding the proposed form of the filed with and accepted, subject to final Minnesota, to acquire through its order. approval, by the Commission, has been subsidiaries, Norwest Financial Special No comment have been received, the placed on the public record for a period Services, Inc., Des Moines, Iowa, and Commission has ordered the issuance of of sixty (60) days. Public comment is Norwest Financial, Inc., Des Moines, the complaint in the form contemplated invited. Such comments or views will Iowa, Orlandi Valuta, Los Angeles, by the agreement, made its be considered by the Commission and California, and Orlandi Valuta Nacional, jurisdictional findings and entered an will be available for inspection and Boulder City, Nevada, and thereby order to divest, as set forth in the copying at its principal office in engage in money transmission activities proposed consent agreement, in accordance with Section 4.9(b)(6)(ii) of to foreign countries, pursuant to disposition of this proceeding. the Commission’s Rules of Practice (16 Philippine Commercial International CFR 4.9(b)(6)(ii)). (Sec. 6, Stat. 721; 15 U.S.C. 46. Interpret or Bank, 77 Federal Reserve Bulletin 271 apply sec. 5, 38 Stat. 719, as amended; sec. Agreement Containing Consent Order to (1991). 7, 38 Stat. 731, as amended; 15 U.S.C. 45, 18) Cease and Desist Board of Governors of the Federal Reserve Benjamin I. Berman, System, July 27, 1995. The Federal Trade Commission Acting Secretary. having initiated an investigation of Jennifer J. Johnson, [FR Doc. 95–18953 Filed 8–1–95; 8:45 am] certain acts and practices of J. Walter Deputy Secretary of the Board. BILLING CODE 6750±01±M Thompson USA, Inc., a corporation, and [FR Doc. 95–18936 Filed 8–1–95; 8:45 am] it now appearing that the proposed BILLING CODE 6210±01±F [File No. 942 3294] respondent is willing to enter into an agreement containing an order to cease J. Walter Thompson USA, Inc.; and desist from the use of the acts and FEDERAL TRADE COMMISSION Proposed Consent Agreement With practices being investigated, [Dkt. C±3586] Analysis To Aid Public Comment It is hereby agreed by and between J. Walter Thompson USA, Inc., a Glaxo plc; Prohibited Trade Practices, AGENCY: Federal Trade Commission. corporation, by its duly authorized and Affirmative Corrective Actions ACTION: Proposed consent agreement. officer, and its attorney, and counsel for the Federal Trade Commission that: AGENCY: Federal Trade Commission. SUMMARY: In settlement of alleged 1. Proposed respondent J. Walter ACTION: Consent order. violations of federal law prohibiting Thompson USA, Inc. is a corporation unfair acts and practices and unfair organized, existing and doing business SUMMARY: In settlement of alleged methods of competition, this consent under and by virtue of the laws of the violations of federal law prohibiting agreement, accepted subject to final State of Delaware, with its office and unfair acts and practices and unfair Commission approval, would prohibit, principal place of business located at methods of competition, this consent among other things, a New York-based 466 Lexington Avenue, New York, New order requires, among other things, a advertising agency, which prepared York 10017. British drug company to divest, within advertisements for Jenny Craig, Inc., 2. Proposed respondent admits all the nine months, Wellcome’s worldwide from claiming that any weight-loss jurisdictional facts set forth in the draft research and development assets for program is recommended, approved, or of complaint. non-injectable drugs, or else agree to endorsed by any person, group, or other 3. Proposed respondent waives: have a Commission-appointed trustee to entity, unless it possesses and relies a. Any further procedural steps; complete the transaction. In addition, upon competent and reliable scientific b. The requirement that the the consent order requires Glaxo, for a evidence to substantiate the Commission’s decision contain a period of ten years, to obtain representation. In addition, the consent statement of findings of fact and Commission approval before acquiring agreement prohibits the respondent conclusions of law; more than one percent interest in any from misrepresenting the existence, c. All rights to seek judicial review or entity involved in the clinical results, or interpretations of any test, otherwise to challenge or contest the development, manufacture or sale of study, or survey. validity of the order entered pursuant to this agreement; and migraine drugs. DATES: Comments must be received on d. Any claim under the Equal Access DATES: Complaint and Order issued June or before October 2, 1995. 14, 1995.1 to Justice Act. ADDRESSES: Comments should be 4. This agreement shall not become FOR FURTHER INFORMATION CONTACT: directed to: FTC/Office of the Secretary, part of the public record of the Claudia Higgins or Ann Malester, FTC/ Room 159, 6th Street and Pennsylvania proceeding unless and until it is S–2224, Washington, DC 20580. (202) Avenue NW., Washington, D.C. 20580. accepted by the Commission. If this 326–2682. FOR FURTHER INFORMATION CONTACT: agreement is accepted by the SUPPLEMENTARY INFORMATION: On Jeffrey Klurfeld or Matthew Gold, Commission, it, together with the draft Wednesday, March 29, 1995, there was Federal Trade Commission, San of complaint contemplated thereby, will published in the Federal Register, 60 FR Francisco Regional Office, 901 Market be placed on the public record for a 16139, a proposed consent agreement Street, Suite 570, San Francisco, CA period of sixty (60) days and with analysis In the Matter of Glaxo plc, 94103. (415) 744–7920. information in respect thereto publicly for the purpose of soliciting public SUPPLEMENTARY INFORMATION: Pursuant released. The Commission thereafter comment. Interested parties were given to Section 6(f) of the Federal Trade may either withdraw its acceptance of sixty (60) days in which to submit Commission Act, 38 Stat. 721, 15 U.S.C. this agreement and so notify the comments, suggestions or objections 46 and Section 2.34 of the Commission’s proposed respondent, in which event it Rules of Practice (16 CFR 2.34), notice will take such action as it may consider 1 Copies of the Complaint and the Decision and Order are available from the Commission’s Public is hereby given that the following appropriate, or issue and serve its Reference Branch, H–130, 6th Street & Pennsylvania consent agreement containing a consent complaint (in such form as the Avenue, NW., Washington, DC 20580. order to cease and desist, having been circumstances may require) and Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39397 decision, in disposition of the and employees, directly or through any successors and assigns, shall maintain proceeding. corporation, subsidiary, division or and upon request make available to the 5. This agreement is for settlement other device, in connection with the Federal Trade Commission or its staff purposes only and does not constitute advertising, promotion, offering for sale, for inspection and copying: an admission by proposed respondent of or sale of any weight loss program, in A. All materials relied upon to facts, other than jurisdictional facts, or or affecting commerce, as ‘‘commerce’’ substantiate any claim or representation of violations of law as alleged in the is defined in the Federal Trade covered by this Order; and draft of complaint. Commission Act, do forthwith cease and B. All tests, reports, studies, surveys, 6. This agreement contemplates that, desist from representing, directly or by demonstrations or other evidence in its if it is accepted by the Commission, and implication, that such program is possession or control that contradict, if such acceptance is not subsequently recommended, approved or endorsed by qualify, or call into question such withdrawn by the Commission pursuant any person, group or other entity, representation, or the basis relied upon to the provisions of Section 2.34 of the unless, at the time of making any such for such representation, including Commission’s Rules, the Commission representation, respondent possesses complaints from consumers. may, without further notice to proposed and relies upon competent and reliable IV respondent, (a) issue its complaint evidence, which when appropriate must corresponding in form and substance be competent and reliable scientific It is further ordered that respondent with the draft of complaint and its evidence, that substantiates such shall notify the Commission at least decision containing the following order representation. For the purposes of this thirty (30) days prior to the effective to cease and desist in disposition of the order, ‘‘competent and reliable scientific date of any proposed change in the proceeding and (b) make information evidence’’ shall mean those tests, corporation that may affect compliance public in respect thereto. When so analyses, research, studies or other obligations under this Order, including entered, the order to cease and desist evidence based on the expertise of but not limited to any change in shall have the same force and effect and professionals in the relevant area, that corporate name or address, dissolution, may be altered, modified or set aside in have been conducted and evaluated in assignment or sale resulting in the the same manner and within the same an objective manner by persons emergence of a successor corporation, or time provided by statute for other qualified to do so, using procedures the creation or dissolution of orders. The order shall become final generally accepted in the profession to subsidiaries. upon service. Delivery by the U.S. yield accurate and reliable results. V Postal Service of the complaint and Provided, however, that it shall be a decision containing the agreed-to order defense hereunder that the respondent It is further ordered that respondent to proposed respondent’s address as neither knew nor had reason to know of shall, within ten (10) days from the date stated in this agreement shall constitute an inadequacy of substantiation for the of service of this Order upon it, service. The proposed respondent representation. distribute a copy of this Order to each waives any right it may have to any of its operating divisions, to each of its II other manner of service. The complaint managerial employees, and to each of its may be used in construing the terms of It is further ordered that respondent, officers, agents, representative or the order, and no agreement, J. Walter Thompson USA, Inc., a employees engaged in the preparation, understanding, representation, or corporation, its successors and assigns, review or placement of advertising or interpretation not contained in the order and its officers, and respondent’s agents, other materials covered by this Order, or the agreement may be used to vary or representatives and employees, directly and shall secure from each such person contradict the terms of the order. or through any corporation, subsidiary, a signed statement acknowledging 7. The proposed respondent has read division or other device, in connection receipt of this Order. the proposed complaint and order with the advertising, promotion, It is further ordered that respondent contemplated hereby. The proposed offering for sale, or sale of any weight shall, within sixty (60) days from the respondent understands that once the loss or weight control program, weight date of service of this Order upon it, and order has been issued, it will be loss product, health or fitness program, at such other times as the Commission required to file one or more compliance exercise equipment, or diet-related food, may require, file with the Commission reports showing that it has fully in or affecting commerce, as a report, in writing, setting forth in complied with the order. The proposed ‘‘commerce’’ is defined in the Federal detail the manner and form in which it respondent further understands that it Trade Commission Act, do forthwith has complied with this Order. cease and desist from misrepresenting, may be liable for civil penalties in the Analysis of Proposed Consent Order To in any manner, directly or by amount provided by law for each Aid Public Comment violation of the order after it becomes implication, the existence, contents, final. validity, results, conclusions, or The Federal Trade Commission has interpretations of any test, study, or accepted an agreement, subject to final Order survey. approval, to a proposed consent order For purposes of this order, the term Provided, however, that it shall be a from respondent J. Walter Thompson ‘‘diet-related food’’ shall mean any food defense hereunder that the respondent USA, Inc., a Delaware corporation. (as that term is defined in 15 U.S.C. neither knew nor had reason to know The proposed consent order has been § 55(b)) whose labeling or advertising that the test, study or survey did not placed on the public record for sixty makes any claim regarding its weight prove, demonstrate or confirm the (60) days for reception of comments by loss or weight maintenance benefits. representation. interested persons. Comments received during this period will become part of I III the public record. After sixty (60) days, It is ordered that respondent, J. Walter It is further ordered that for five (5) the Commission will again review that Thompson USA, Inc., a corporation, its years after the date of the last agreement and the comments received successors and assigns, and its officers, dissemination of the representation to and will decide whether it should and respondent’s agents, representatives which they pertain, respondent, or its withdraw from the agreement and take 39398 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices other appropriate action or make final prove, demonstrate or confirm the product coverage applicable to the relevant the agreement’s proposed order. representation. order provisions, the Commission, on each The Commission’s complaint in this Part III requires J. Walter Thompson occasion, had to pursue a new Section 5 case matter charges J. Walter Thompson with to maintain certain materials relating to against the company, rather than being able advertisements covered by this order to seek civil penalties for an order violation. engaging in deceptive practices in Thus, the Commission’s history with JWT connection with the advertising of the and to make such documents available raises the question of whether broader Jenny Craig Weight Loss Program. The for FTC inspection. product coverage is warranted in this case.2 advertisements at issue contain Part IV requires J. Walter Thompson Extension of an order’s product coverage variations of the claim that nine out of to notify the Commission of any changes beyond the product or service at issue in a ten Jenny Craig clients would in the corporate structure that might complaint may be justified so long as the recommend the Jenny Craig Weight Loss affect compliance with the order. order bears a reasonable relationship to the Program to a friend. Part V requires J. Walter Thompson to unlawful practices alleged. See Stouffer Foods Corp., D. 9250, slip op. at 17 (Sept. 26, According to the complaint, print and distribute copies of the order to certain company officials and employees and 1994) (citing Jacob Siegel Co. v. FTC, 327 television advertisement for the Jenny U.S. 608, 612–13 (1946)). The Commission Craig Weight Loss Program represented certain other representatives and agents generally considers three criteria to that ninety percent or more of Jenny of the company, and to secure from each determine whether an order bears a Craig customers would recommend the such person a signed statement reasonable relationship to a particular Jenny Craig Weight Loss Program. The acknowledging receipt of the order. Section 5 violation: (1) the seriousness and complaint also alleges that those Part VI requires J. Walter Thompson deliberateness of the violation; (2) the ease with which the violative claim may be advertisements represented that to file with the Commission one or more reports detailing compliance with the transferred to other products; and (3) whether competent and reliable studies or the respondent has a history of prior surveys establish that claim. order. The purpose of this analysis is to violations. Stouffer, slip op. at 17 (citing The complaint further alleges that J. facilitate public comment on the cases). All three elements need not be present Walter Thompson lacked substantiation to warrant fencing-in. Sears, Roebuck & Co. proposed order. It is not intended to for its ‘‘nine out of ten’’ claims, and v. FTC, 676 F.2d 385, 392 (9th Cir. 1982) (‘‘In constitute an official interpretation of falsely claimed that competent and the final analysis, we look to the the agreement and proposed order or to reliable studies or surveys support those circumstances as a whole and not to the modify in any way their terms. presence or absence of any single factor.’’). claims. Finally, the complaint alleges Although we do not have the benefit of a that J. Walter Thompson knew or should Benjamin I. Berman, Acting Secretary. litigated record, from the evidence presented have known that these claims were false so far, it appears that in this case, the first and misleading. Concurring Statement of Commissioners two, and arguably the third, elements weigh The consent order contains provisions Roscoe B. Starek, III and Christine A. in favor of broad fencing-in. First, the alleged designed to remedy the violations Varney violations are both deliberate and serious. charged and to prevent J. Walter In the Matter of J. Walter Thompson USA, The survey from which the ‘‘nine out of ten’’ Thompson from engaging in similar Inc., File No. 942–3294 claim was derived was obviously and severely flawed. JWT, the largest ad agency deceptive and unfair acts and practices Although we have voted to accept the in the country, surely must be deemed to in the future. consent order negotiated with J. Walter have expertise in conducting consumer Part I of the order prohibits J. Walter Thompson USA, Inc. (‘‘JWT’’) in this matter, surveys. Any ignorance in this regard must Thompson from misrepresenting that we write to comment on the scope of the have been cured by the Commission’s earlier any weight loss program is product coverage in Part II of the order. Part decision to hold it liable for the II addresses the false ‘‘establishment’’ claim dissemination of misrepresentations about recommended, approved or endorsed by challenged in paragraphs five and six of the any person, group or other entity unless the results of surveys. complaint, i.e., the claim that a valid study The evidence also suggests the violations it possesses and relies upon competent or survey showed that ninety percent or more were serious, as measured by the extent of and reliable evidence, which, when of Jenny Craig Weight Loss Program dissemination. The ad campaign in question customers would recommend the program to appropriate, must be competent and was a national one that ran for over a year, their friends. Part II of the order prohibits reliable scientific evidence, that and the ads were given to franchisees to run misrepresentations regarding the existence, substantiates the representation. Part I in their areas. Furthermore, the great length contents, validity, results, conclusions, or provides J. Walter Thompson with a of the campaign’s dissemination schedule interpretations of any test, study, or survey, indicates the campaign must have been quite defense to liability if it neither knew nor in connection with the promotion of any costly. had reason to know of an inadequacy of weight loss or weight control program, The second element, the ease with which substantiation for the representation. weight loss product, health or fitness Part II prevents J. Walter Thompson program, exercise equipment, or diet-related the violative claims may be transferred to from misrepresenting, with regard to food. other products, also supports fencing-in. The results of surveys or studies are easily any diet-related food, or any weight loss On three previous occasions JWT has signed consent orders settling allegations that misrepresented, regardless of the type of or weight control program, weight loss product or service. The fairly obvious product, health or fitness program or it misrepresented the results of surveys or tests.1 Because of the narrow scope of the transferability of this type of claim is borne exercise equipment, the existence, out by the prior consent orders, as those cases involved a diverse range of product contents, validity, results, conclusions, 1 J. Walter Thompson Co., 97 F.T.C. 333 (1981) or interpretations of any test, study, or (complaint alleged that JWT misrepresented that ‘‘4 survey. ‘‘Diet-related food’’ is defined as out of 5 dentists recommend’’ the Water Pik; 736 (1974) (complaint alleged that JWT ‘‘any food (as that term is defined in 15 consent order prohibits claims regarding surveys of misrepresented the results of studies on the safety professional groups unless the surveys were of Ford automobiles; consent order prohibits, in U.S.C. § 55(b)) whose labeling or designed, executed, and analyzed in a competent advertising for automobiles, presenting the results advertising makes any claim regarding and reliable manner); J. Walter Thompson Co., 94 of tests, experiments, or demonstrations unless its weight loss or weight maintenance F.T.C. 331 (1979) (complaint alleged that JWT competent and reliable to prove the claimed benefits.’’ Part II provides J. Walter misrepresented the results of tests of the cleaning feature). effectiveness of Sears dishwashers; consent order 2 It is true that this consent order has broader Thompson with a defense to liability if prohibits, in advertising for major home appliances, product coverage than the prior JWT orders and it neither know nor had reason to know misrepresenting the results of tests, studies, appears to cover the range of diet- and fitness- that the test, study or survey did not surveys, etc.); J. Walter Thompson Co., 84 F.T.C. related products. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39399 categories (surveys of professionals, major Statement of Commissioner Mary L. stores and to publish the entire text of home appliances, and automobiles). Azcuenaga Concurring in Part and the poster in three Korean-language The final element is the respondent’s Dissenting in Part newspapers in the Washington, DC area. history of past violations. The question of J. Walter Thompson USA, Inc., File No. 942– DATES: Complaint and Order issued June whether consent orders may be used as 3294 20, 1995.1 evidence of past violations is at best I dissent from Part II of the proposed FOR FURTHER INFORMATION CONTACT: unsettled. Compare ITT Continental Baking consent order because the product coverage Co. v. FTC, 521 F.2d 207, 222 n.23 (2d Cir. Joseph G. Krauss, FTC/S–3627, is too narrow. Part II would prohibit J. Walter Washington, DC 20580. (202) 326–2713. 1976) (because consent orders do not Thompson from making deceptive constitute an admission that the respondent establishment claims for any weight loss or SUPPLEMENTARY INFORMATION: On has violated the law, the Commission may weight control program, weight loss product, Tuesday, April 11, 1995, there was not rely on consent orders as evidence of health or fitness program, exercise published in the Federal Register, 60 FR additional illegal conduct when formulating equipment, or diet-related food. Although the 18411, a proposed consent agreement cease and desist orders in other proceedings) product coverage in this provision does go with analysis In the Matter of Korean with Thompson Medical Co., 104 F.T.C. 648, beyond the product with respect to which a Video Stores, et al., for the purpose of violation has been alleged, given the 833 n.78 (1984), aff’d, 791 F.2d 189 (D.C. Cir. soliciting public comment. particular facts of this case, I would impose 1986), cert. denied, 479 U.S. 1086 (1987) Interested parties were given sixty even broader product coverage. In my view, (while stating that a single consent order J. Walter Thompson relied on a clearly (60) days in which to submit comments, would not be used as a basis for concluding flawed study in making its deceptive claims, suggestions or objections regarding the that the respondent has a history of past and it continued to make claims based on proposed form of the order. violations, the Commission expressly took no this flawed study even after it had received No comments having been received, position on whether a pattern of consent contradictory results from a more reliable the Commission has ordered the orders would be a sufficient history of past study that it had commissioned. J. Walter issuance of the complaint in the form violations to warrant fencing-in). Regardless Thompson also could readily transfer contemplated by the agreement, made of whether the prior consent orders may be deceptive test result claims to other products, its jurisdictional findings and entered considered evidence of past violations, they as demonstrated by the fact that J. Walter an order to cease and desist, as set forth show that JWT was aware of the Thompson has entered into three other consent agreements to settle allegations that in the proposed consent agreement, in Commission’s concern about this type of it made deceptive claims concerning survey disposition of this proceeding. claim and of the requirements of the law with or test results for three disparate products.1 (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets respect to claims involving surveys and tests. Given that J. Walter Thompson’s deception or applies sec. 5, 38 Stat. 719, as amended; Despite these concerns, for several reasons appears to have been deliberate and that its 15 U.S.C. 45) we believe that accepting the order as deception readily could be transferred to Benjamin I. Berman, negotiated appears to be appropriate. For other products, see Stouffer Foods Corp., D. example, we understand that JWT has made 9250, slip op. at 17 (Sept. 26, 1994), broader Acting Secretary. clear it would litigate if the Commission product coverage is appropriate. [FR Doc. 95–18955 Filed 8–1–95; 8:45 am] attempted to obtain broader coverage; [FR Doc. 95–18954 Filed 8–1–95; 8:45 am] BILLING CODE 6750±01±M litigation inevitably presents resource BILLING CODE 6750±01±M 3 allocation questions. In addition, broad [File No. 951±0024] product coverage obviously weighs more [Dkt. C±3588] heavily on an ad agency such as JWT that Summit Communications Group, Inc., handles accounts for a divers assortment of Korean Video Stores Association of et al.; Proposed Consent Agreement products and services, than on a Maryland, et al.; Prohibited Trade With Analysis to Aid Public Comment manufacturer or advertiser offering a limited range of products.4 We write only to point Practices, and Affirmative Correction AGENCY: Federal Trade Commission. Actions out that in light of all the circumstances of ACTION: Proposed consent agreement. this case, broad product coverage in Part II AGENCY: Federal Trade Commission. could have been justified as reasonably ACTION: Consent order. SUMMARY: In settlement of alleged related to the violations alleged. violations of federal law prohibiting SUMMARY: In settlement of alleged unfair acts and practices and unfair 3 Even so, a litigated order could be beneficial for violations of federal law prohibiting methods of competition, this consent several reasons. First, in case of future similar unfair acts and practices and unfair agreement, accepted subject to final violations by JWT, a litigated order clearly could be methods of competition, this consent Commission approval, would prohibit, used as evidence of prior law violations. Second, while there is no guarantee that the Commission order prohibits, among other things, a among other things, Summit and seven would obtain broader product coverage in litigation Maryland based video store association Wometco Cable TV companies from than is contained in this consent order, it seems and its members from entering into any agreeing, attempting to agree or carrying unlikely that the Commission would do any worse, agreement to raise, fix, or maintain out an agreement with any cable and the potential gain is great, both in terms of having JWT under a broader order and in terms of prices in the retail video tape rental television provider to allocate or divide precedential value for other cases. Third, a litigated business; and requires, within 30 days, markets, customers, contracts or opinion might resolve some of the uncertainties its members to display a poster territories for cable television service in concerning the precedential value of prior consent announcing the settlement, in both the incorporated and unincorporated orders. 4 On the other hand, the potential burden of a English and Korean, in their respective areas of the Georgia counties of Cobb, broad order is partially mitigated by the fact that, Bartow, Dekalb, Walton, Gwinnett, as an ad agency, JWT’s order contains a safe harbor 1 J. Walter Thompson Co., 97 F.T.C. 323 (1981); Fulton, Douglas, Fayette, Coweta, insulating it from liability unless it knows or should (dental cleaning device); J. Walter Thompson Co., Clayton, Henry, Rockdale, Newton and know that the survey or test did not prove, 94 F.T.C. 331 (1979) (dishwashers); J. Walter demonstrate, or confirm the representation. In Thompson Co., 84 F.T.C. 736 (1974) (automobiles). Cherokee. addition, it is not unusual for orders covering Assuming the allegations in this and the previous establishment claims to have broad product cases to be true, we would have to conclude that 1 Copies of the Complaint and the Decision and coverage because the type of claim covered—the J. Walter Thompson has had difficulty Order are available from the Commission’s Public results or validity of tests or surveys—is fairly comprehending that the conduct alleged is conduct Reference Branch, H–130, 6th Street & Pennsylvania discrete. about which the Commission is concerned. Avenue NW., Washington, DC 20580. 39400 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices DATES: Comments must be received on It is hereby agreed by and between doing business under and by virtue of or before October 2, 1995. Summit and Wometco, by their duly the laws of the State of Delaware, with ADDRESSES: Comments should be authorized officers and attorneys, and its office and principal place of business directed to: FTC/Office of the Secretary, counsel for the Federal Trade at 75 Rockefeller Plaza, New York, New Room 159, 6th St. and Pa. Ave., N.W., Commission that: York 10019. After consummation of a Washington, DC 20580. 1. Proposed respondent Summit is a proposed acquisition of Summit by corporation organized, existing, and FOR FURTHER INFORMATION CONTACT: TWI, Summit will become a wholly- doing business under and by virtue of Ronald Rowe or Robert Doyle, Jr., FTC/ owned subsidiary of TWI. the laws of the State of Delaware, with S–2105, Washington, DC 20580. (202) 10. U S WEST, Inc. (‘‘USW’’) is a its office and principal place of business 326–2610 or 326–2819. corporation organized, existing, and at 115 Perimeter Center Place, Suite doing business under and by virtue of SUPPLEMENTARY INFORMATION: Pursuant 1150, Atlanta, Georgia 30346. the laws of the State of Colorado, with to Section 6(f) of the Federal Trade 2. Proposed respondent Wometco its office and principal place of business Commission Act, 38 Stat. 721, 15 U.S.C. Cable TV of Georgia, Inc., is a at 7800 East Orchard Road, Englewood, 46 and Section 2.34 of the Commission’s corporation organized, existing, and Colorado 80111. USW is an owner of Rules of Practice (16 CFR 2.34), notice doing business under and by virtue of approximately 25% of Time Warner is hereby given that the following the laws of the State of Georgia, with its Entertainment Company, L.P., an consent agreement containing a consent office and principal place of business at affiliate of TWI. On December 6, 1994, order to cease and desist, having been 5979 Fairburn Road, Douglasville, USW, through its wholly-owned filed with and accepted, subject to final Georgia 30134. subsidiary Multimedia Cable, Inc., a approval, by the Commission, has been 3. Proposed respondent Wometco Delaware corporation, acquired placed on the public record for a period Cable TV of Cobb County, Inc., is a Wometco. of sixty (60) days. Public comment is corporation organized, existing, and 11. Summit and Wometco admit all invited. Such comments or views will doing business under and by virtue of the jurisdictional facts set forth in the be considered by the Commission and the laws of the State of Georgia, with its draft of complaint. will be available for inspection and office and principal place of business at 12. Summit and Wometco waive: copying at its principal office in 1145 Powder Springs Road, Marietta, a. Any further procedural steps; accordance with Section 4.9(b)(6)(ii) of Georgia 30064. b. The requirement that the the Commission’s Rules of Practice (16 4. Proposed respondent Wometco Commission’s decision contain a CFR 4.9(b)(6)(ii)). Cable TV of Clayton County, Inc., is a statement of findings of fact and corporation organized, existing, and conclusions of law; Agreement Containing Consent Order doing business under and by virtue of c. All rights to seek judicial review or To Cease and Desist the laws of the State of Georgia, with its otherwise to challenge or contest the In the Matter of Summit Communications office and principal place of business at validity of the order entered pursuant to Group, Inc., a corporation, and Wometco 6435 Tara Boulevard, Suite 22, this agreement; and Cable TV of Georgia, Inc., a corporation; Jonesboro, Georgia 30236. d. Any claim under the Equal Access Wometco Cable TV of Cobb County, Inc., a 5. Proposed respondent Wometco to Justice Act. corporation; Wometco Cable TV of Clayton Cable TV of Conyers-Rockdale, Inc., is a 13. This agreement shall not become County, Inc., a corporation; Wometco Cable corporation organized, existing, and part of the public record of the TV of Conyers-Rockdale, Inc., a corporation; doing business under and by virtue of proceeding unless and until it is Wometco Cable TV of Fayette County, Inc., the laws of the State of Georgia, with its accepted by the Commission. If this a corporation; Wometco Cable TV of Fulton office and principal place of business at agreement is accepted by the County, a corporation; and Wometco Cable Commission it, together with the draft of TV of Henry County, Inc., a corporation. 1361 Iris Drive, Conyers, Georgia 30209. 6. Proposed respondent Wometco complaint contemplated thereby, will be The Federal Trade Commission Cable TV of Fayette County, Inc., is a placed on the public record for a period having initiated an investigation of corporation organized, existing, and of sixty (60) days and information with certain acts and practices of Summit doing business under and by virtue of respect thereto publicly released. The Communications Group, Inc. the laws of the State of Georgia, with its Commission thereafter may either (‘‘Summit’’), a Delaware corporation, office and principal place of business at withdraw its acceptance of this and Wometco Cable TV of Georgia, Inc., 107 South Glynn Street, Fayetteville, agreement and so notify Summit and a Georgia corporation, Wometco Cable Georgia 30214. Wometco, in which event it will take TV of Cobb County, Inc., a Georgia 7. Proposed respondent Wometco such action as it may consider corporation, Wometco Cable TV of Cable TV of Fulton County is a appropriate, or issue and serve its Clayton County, Inc., a Georgia corporation organized, existing, and complaint (in such form as the corporation, Wometco Cable TV of doing business under and by virtue of circumstances may require) and Conyers-Rockdale, Inc., a Georgia the laws of the State of Georgia, with its decision, in disposition of the corporation, Wometco Cable TV of office and principal place of business at proceeding. Fayette County, Inc., a Georgia 6435 Tara Boulevard, Suite 22, 14. This agreement is for settlement corporation, Wometco Cable TV of Jonesboro, Georgia 30236. purposes only and does not constitute Fulton County, a Georgia corporation, 8. Proposed respondent Wometco an admission by Summit or Wometco and Wometco Cable TV of Henry Cable TV of Henry County, Inc., is a that the law has been violated as alleged County Inc., a Georgia corporation corporation organized, existing, and in the draft of complaint or that the facts (hereinafter collectively referred to as doing business under and by virtue of as alleged in the draft complaint, other ‘‘Wometco’’), and it now appearing that the laws of the State of Georgia, with its than jurisdictional facts, are true. Summit and Wometco are willing to office and principal place of business at 15. This agreement contemplates that, enter into an agreement containing an 6435 Tara Boulevard, Suite 22, if it is accepted by the Commission, and order to cease and desist from the acts Jonesboro, Georgia 30236. if such acceptance is not subsequently and the practices being investigated and 9. Time Warner Inc. (‘‘TWI’’) is a withdrawn by the Commission pursuant providing for other relief: corporation organized, existing, and to the provisions of § 2.34 of the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39401 Commission’s Rules, the Commission predecessors, successors and assigns, areas of the counties of Cobb, Bartow, may, without further notice to Summit their subsidiaries, divisions, groups and Dekalb, Walton, Gwinnett, Fulton, or Wometco, (1) issue its complaint affiliates controlled by Wometco, and Douglas, Fayette, Coweta, Clayton, corresponding in form and substance the respective directors, officers, Henry, Rockdale, Newton, and with the draft complaint and its employees, agents, representatives, Cherokee, in the State of Georgia. decision containing the following order successors and assigns of each; J. ‘‘Overbuilding’’ means instances in to cease and desist in disposition of the C. ‘‘TWI’’ means Time Warner Inc., its which two or more Cable Operators proceeding, and (2) make information directors, officers, employees agents and have the facilities to provide and are public with respect thereto. When so representatives, predecessors, capable of providing Cable Television entered, the order to cease and desist successors and assigns, it subsidiaries, Service to the same subscribers. divisions, group and affiliates controlled shall have the same force and effect and II may be altered, modified, or set aside in by TWI, and the respective directors, the same manner and within the same officers, employees, agents, It is further ordered that Summit and time provided by statute for other representatives, successors and assigns Wometco each cease and desist from, orders. The order shall become final of each; directly, indirectly, or through any upon service. Delivery by the U.S. D. ‘‘USW’’ means US West, Inc., its corporate or other device, in or affecting Postal Service of the compliant and directors, officers, employees, agents commerce, as ‘‘commerce’’ is defined in decision containing the agreed-to order and representatives, predecessors, the Federal Trade Commission Act, to the addresses of Summit and successors and assigns, its subsidiaries, combining or attempting to combine, Wometco, as stated in this agreement, divisions, groups and affiliates entering into or attempting to enter into, shall constitute service. Summit and controlled by USW, and the respective organizing or attempting to organize, Wometco waive any right each may directors, officers, employees, agents, implementing or attempting to have to any other manner of service. representatives, successors and assigns implement, carrying out or attempting The complaint may be used in of each; to carry out, or soliciting or attempting E. ‘‘Commission’’ means the Federal construing the terms of the order, and to solicit, any combination, agreement, Trade Commission; no agreement, understanding, or understanding, either express or F. ‘‘Cable Operator’’ means any representation, or interpretation not implied, with any Cable Operator or partnership, sole proprietorship or other provider or potential provider of contained in the order or the agreement corporation, including all of its may be used to vary or contradict the Cable Television Service in any part of subsidiaries, affiliates, divisions and the Relevant Geographic Area: terms of the order. joint ventures, that owns, controls or 16. Summit and Wometco have read A. To allocate or divide markets, operates one or more Cable Television the proposed compliant and order customers, contracts, or territories for Systems; ‘‘Cable Operator’’ includes the contemplated hereby. They understand Cable Television Service in any part of partners, directors officers, employees, that once the order has been issued, the Relevant Geographic Area. and agents of such partnership, sole each will be required to file one or more ‘‘Customers’’ includes, but is not limited proprietorship or corporation as well as compliance reports showing that each to, residents of existing, newly- the directors, officers, employees, and has fully complied with the order. constructed, or future housing agents of such partnership’s sole Summit and Wometco further developments, subdivisions, apartment proprietorship’s or corporation’s understand that they may be liable for complexes, or hotels; and subsidiaries, affiliates, divisions and civil penalties in the amount provided B. To refrain from Overbuilding any joint ventures. The words ‘‘subsidiary,’’ by law for each violation of the order portion of any Cable Television System ‘‘affiliate,’’ and ‘‘joint venture’’ refer to after the order becomes final. in any part of the Relevant Geographic any firm in which there is partial (10% Area. Order or more) or total ownership or control Provided that nothing contained in between corporations. I the foregoing paragraphs of this order G. ‘‘Cable Television Service’’ means shall be construed to prohibit TWI or It is Ordered that, as used in this the delivery to the home of various USW from engaging in any lawful order, the following definitions shall entertainment and informational conduct or entering into any lawful apply: programming via a Cable Television agreement. A. ‘‘Summit’’ means Summit System. Communications Group, Inc., its H. ‘‘Cable Television System’’ means III directors, officers, employees, agents a facility, consisting of a set of closed It is further ordered that Summit and and representatives, predecessors, transmission paths and associated signal Wometco shall: successors and assigns, its subsidiaries, generation, reception, and control A. Within thirty (30) days after the divisions, groups and affiliates equipment that is designed to provide date this order becomes final, distribute controlled by Summit, and the Cable Television Service, which a copy of the complaint and order to respective directors, officers, employees, includes video programming and which each of their directors, officers, and agents, representatives, successors and is provided to multiple subscribers supervisory employees who are in any assigns of each: within a community. The term does not way involved in Cable Television B. ‘‘Wometco’’ means Wometco Cable include: (a) a facility that serves only to Service in the Relevant Geographic TV of Georgia, Inc., Wometco Cable TV retransmit the television signals of one Area; of Cobb County, Inc., Wometco Cable or more television broadcast stations; or B. For a period of three (3) years after TV of Clayton County, Inc., Wometco (b) a facility that serves only subscribers the date this order becomes final, Cable TV of Conyers-Rockdale, Inc., in one or more multiple dwelling units furnish a copy of the complaint and Wometco Cable TV of Fayeete County, under common ownership, control, or order to each of their new directors, Inc., Wometco Table TV of Fulton management, unless such facility or officers, and to each of their supervisory County, Wometco Cable TV of Henry facilities uses a public right-of way. employees in any way involved in Cable County, Inc., their directors, officers, I. ‘‘Relevant Geographic Area’’ means Television Service in the Relevant employees, agents and representatives, the incorporated and unincorporated Geographic Area, at the time they 39402 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices become a director, officer, or Analysis of Proposed Consent Order To Aid The purpose of this analysis is to invite supervisory employee; Public Comment public comment concerning the proposed The Federal Trade Commission consent order. This analysis is not intended C. For a period of three (3) years from to consent order. This analysis is not the date this order becomes final, and (‘‘Commission’’) has accepted for public comment from Summit Communications intended to constitute an official within thirty (30) days after the date any Group, Inc. (‘‘Summit’’), and Wometco Cable interpretation of the agreement and proposed entity becomes a majority-owned TV of Georgia, Inc., Wometco Cable TV of order or to modify their terms in any way. subsidiary of Summit or Wometco, Cobb County, Inc., Wometco Cable TV of The agreement would settle charges by the provide a copy of the complaint and Clayton County, Inc., Wometco Cable TV of Commission that the proposed respondents order to all directors, officers, and Conyers-Rockdale, Inc., Wometco Cable TV violated Section 5 of the Federal Trade Commission Act by engaging in practices that supervisory employees of such entity of Fayette County, Inc., Wometco Cable TV of Fulton County, and Wometco Cable TV of restricted competition between providers of who are in any way involved in Cable cable television services in parts of Television Service in the Relevant Henry County, Inc. (hereinafter collectively referred to as ‘‘Wometco’’), an agreement unincorporated Cobb County, Georgia. Geographic Area. containing a proposed consent order to cease Statement of the Commission; Summit IV and desist. Communications Group, Inc. The agreement has been placed on the [File No. 951–0024] It is ordered that Summit and public record for sixty (60) days for receipt Wometco: of comments from interested persons. In this matter, the Commission has alleged Comments received during this period will that the respondents, Summit and Wometco, A. Within sixty (60) days after the become part of the public record. After sixty which were competing providers of cable date this order becomes final, and (60) days, the Commission will again review television service, entered into a market annually for the next five (5) years on the agreement and the comments received allocation agreement. Such an agreement is the anniversary of the date this order and will decide whether it should withdraw per se illegal and, in this case, deprived cable becomes final, and at other times as the from the agreement or make final the television subscribers of a competitive Commission may require, shall each file agreement’s proposed order. marketplace. The two respondents were Georgia-based a verified written report with the The Complaint prepared for issuance by the Commission along with the proposed firms, each of which offered cable television Commission setting forth in detail the order alleges that on or about April 26, 1990, services in some or all of fourteen Georgia manner and form in which each has officials of Summit and Wometco reached an counties. Subsequent to the alleged illegal complied and is complying with this understanding concerning which of the two conduct, Wometco was acquired by U.S. order; companies would serve apartment complexes West, and after commencement of the Commission’s investigation, Summit was B. For the purpose of determining or and/or housing complexes in an area of unincorporated Cob County, Georgia, where acquired by Time-Warner. Thus, both securing compliance with this order, both companies have franchise authority to Summit and Wometco are under the active shall permit any duly authorized provide cable television service. The control of major cable television firms whose representative of the Commission: Complaint alleges that this understanding managements were not implicated by the 1. Access, during office hours and in between Summit and Wometco was in allegations of the Commission’s complaint. the presence of counsel, to inspect and operation from late April 1990 until at least The proposed order prevents these March 24, 1993. The Complaint alleges that respondents from engaging in similar copy all books, ledgers, accounts, this understanding reached by Summit and conduct in the fourteen counties in Georgia correspondence, memoranda and other Wometco was an agreement not to compete where either of the two firms had operations, records and documents in the and has had the purpose or effect, or the a far broader area than the small area in one possession or under the control of tendency and capacity, to restrain county where the parties had cable systems Summit or Wometco, relating to any competition unreasonably and to injure capable of competing for business. Under the matters contained in this order; and consumers by restraining competition unique circumstances of this proceeding, the between providers of cable television Commission has concluded that relief may be 2. Upon five days’ notice to Summit services in parts of unincorporated Cobb limited in this fashion. and Wometco, and without restraint or County, and depriving cable television The Commission’s policy is that where per interference from them, to interview subscribers in parts of unincorporated Cobb se illegal conduct is found, it will seek the officers, directors, or employees of County of access to a competitively broadest possible relief, without geographic Summit and Wometco, relating to any determined price and quality of cable limitation. Boulder Ridge Cable TV, Docket matters contained in this order. Summit television services. No. C–3537 (Oct. 19, 1994). Only in and Wometco, and the officers, Summit and Wometco have signed a extraordinary cases, such as this one, will it be appropriate to limit the scope of relief. directors, and employees, may have consent agreement containing the proposed order. The proposed order prohibits Summit counsel present. Statement of Commissioner Mary L. and Wometco from directly or indirectly Azcuenaga Concurring in Part and C. Shall notify the Commission at combining or attempting to combine, Dissenting in Part; Summit Communications least thirty (30) days prior to any entering into or attempting to enter into, Group, Inc. proposed change in Summit or organizing or attempting to organize, [File No. 951–0024] Wometco affecting the provision of implementing or attempting to implement, Cable Television Service in the Relevant carrying out or attempting to carry out, or I concur in the Commission decision to soliciting or attempting to solicit any Geographic Area, such as dissolution, issue a complaint alleging that the combination, agreement, or understanding, respondents conspired to allocate the market assignment, or sale resulting in the either express or implied, with any cable for cable television services. Market emergence of a successor corporation, or operator or other provider or potential allocation agreements, including this one, are the creation or dissolution of provider of cable television services to (a) per se unlawful. Addyston Pipe and Steel Co. subsidiaries or any other change that allocate or divide markets, customers, v. United States, 175 U.S. 211 (1899). may affect their compliance obligations contracts, or territories for cable television I dissent from the decision to limit the arising out of this order. service, and (b) refrain from overbuilding any cease and desist order against Summit portion of any cable television system, in any Communications Group, Inc. (Summit) and V part of the incorporated and unincorporated the seven named Wometco cable systems to areas of the counties of Cobb, Bartow, Dekalb, a small geographic area surrounding Atlanta, It is further ordered that this order Walton, Gwinnett, Fulton, Douglas, Fayette, Georgia. Summit operates cable television shall terminate twenty (20) years from Cowetta, Clayton, Henry, Rockdale, Newton, systems outside the fourteen Georgia the date this order becomes final. and Cherokee, in the State of Georgia. counties that are included in the geographic Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39403 coverage of the order, and the order does (HCFA), Department of Health and make available specific records. nothing to prevent future violations at those Human Services (HHS), is publishing Frequency: Annually; Affected Public: systems. If, after the order is issued, Summit the following summaries of proposed Business or other for profit; Number of enters an identical market allocation collections for public comment. Respondents: 6,412; Total Annual agreement at a cable system outside these 1. Type of Information Collection Hours: 22,400. fourteen counties, the Commission’s only recourse will be to initiate an administrative Request: Reinstatement, with change, of 5. Type of Information Collection proceeding to obtain still another order. a previously approved collection for Request: New Collection; Title of Market allocation, like price fixing, has which approval has expired; Title of Information Collection: Evaluation of long been deemed per se unlawful, and no Information Collection: Peer Review the Medicare Cataract Surgery Alternate proof of market power is necessary to Organization (PRO) Reporting Forms; Payment Demonstration; Form No.: condemn the conduct. Nothing about the Form Nos.: HCFA 613–627; Use: PROs HCFA–R–177; Use: To test the fourteen Georgia counties renders them are authorized to review inpatient and feasibility of a negotiated bundled uniquely susceptible to market allocation outpatient services for quality of care payment for the entire episode of schemes. Since market allocation is unlawful provided and to eliminate unreasonable, cataract surgery with an intraocular lens whenever and wherever it occurs, I see no unnecessary, and inappropriate care implant and, provide insight into reason to limit the prohibition in the order to a tiny geographic region. provided to Medicare beneficiaries. The appropriateness indicators and effective The complaint and order set forth no PROs are required to report the results quality assurance and utilization review rationale for drawing a line around these of the review to HCFA. Frequency: mechanisms for cataract surgery. fourteen counties as the geographic metes Monthly, quarterly; Affected Public: Frequency: Annually; Affected Public: and bounds of the order’s coverage. The Business or other for profit; Number of Business or other for profit institutions; actual agreements alleged in paragraphs six Respondents: 53; Total Annual Hours: Number of Respondents: 1,686; Total through eleven of the complaint relate to the 10,759. Annual Hours: 506. provision of cable television service to the 2. Type of Information Collection 6. Type of Information Collection Asbury Village apartment complex and Request: New Collection; Title of Request: Reinstatement, without change, specific housing subdivisions. As alleged in Information Collection: Evaluation of of a previously approved collection for paragraph thirteen of the complaint, the the Oregon Medicaid Reform which approval has expired; Title of restraint of trade had its anticompetitive effect only in these unincorporated areas of Demonstration, Baseline Survey; Form Information Collection: Home Health Cobb County, Georgia. The absence of any No.: HCFA R–179; Use: The baseline Agency Survey and Deficiencies Report, apparent rationale is troubling. In future survey is one component in the Home Health Functional Assessment cases, it opens the door to unguided evaluation of the Oregon Medicaid Instrument; Form Nos.: HCFA–1572, negotiations regarding the geographic scope Reform Demonstration (OMRD), a HCFA–1515; Use: In order to participate of conduct orders. demonstration authorized under section in the Medicare program as a home This is the second consent agreement 115 of the Social Security Act. The health agency (HHA) provider, the HHA involving allegations of market allocation in purpose of the survey is to gather must meet Federal standards. These which the Commission has limited the information on the health status, past forms are used to record information coverage of the order to a narrow geographic utilization, and level of satisfaction of a about patients’ health and provider area In B & J School Bus Service, Inc., Docket No. C–3425 (April 22, 1993), I dissented from sample of newly enrolled OMRD compliance with requirement and report the limitation on the geographic coverage of recipients, in a way that allows information to the Federal Government. the order on the ground that in the rare case followup contact, and maximizes the Frequency: Annually; Affected Public: in which the Commission uncovers a flagrant likelihood of preenrollment recall. Business or other for profit; Number of per se violation such as bid rigging, price Frequency: Annually; Affected Public: Respondents: 8,622; Total Annual fixing or market allocation, it should take Individuals or households; Number of Hours: 129,330. strong action to prohibit the participants in Respondents: 2,667; Total Annual 7. Type of Information Collection conspiracy from repeating the violation. I Hours: 500. Request: Reinstatement, without change, expressed concern that the Commission was 3. Type of Information Collection of a previously approved collection for signalling a new leniency toward per se Request: Revision of a currently which approval has expired; Title of antitrust violations. In accepting this second approved collection; Title of Information Collection: Survey Team order with such a weak and limited remedy, the Commission appears to eliminate the Information Collection: Information Composition and Workload Report; possibility that the school bus order can be Collection Requirements in HSQ 108–F, Form No.: HCFA–670; Use: This form disregarded as an aberration. Assumption of Responsibilities; Form will provide information on resource Benjamin I. Berman, No.: HCFA R–71; Use: Rule establishes utilization applicable to survey activity Acting Secretary. the review functions to be performed by in the Medicare/Medicaid provider/ the PRO and outlines the relationships supplier types and Clinical Laboratory [FR Doc. 95–18956 Filed 8–1–95; 8:45 am] among PROs, providers, practitioners, Improvement Amendment (CLIA) BILLING CODE 6750±01±M beneficiaries, fiscal intermediaries, and laboratories. This information will assist carriers. Frequency: Monthly, quarterly; HCFA in determining Federal Affected Public: Business or other for reimbursement for surveys conducted. DEPARTMENT OF HEALTH AND profit; Number of Respondents: 53; Frequency: Annually; Affected Public: HUMAN SERVICES Total Annual Hours: 46,653. State, local, or tribal governments; 4. Type of Information Collection Number of Respondents: 53; Total Health Care Financing Administration Request: Extension of a currently Annual Hours: 71,667. Public Information Collection approved collection; Title of 8. Type of Information Collection Requirements Submitted for Public Information Collection: Medical Records Request: New collection; Title of Comment and Recommendations Review Under Prospective Payment Information Collection: Field Testing of System (PPS); Form No.: HCFA R–50; the Uniform Needs Assessment In compliance with the requirement Use: PROs are authorized to conduct Instrument; Form No.: HCFA-R–180; of section 3506(c)(2)(A) of the medical review activities under the PPS. Use: The validity, reliability, and Paperwork Reduction Act of 1995, the In order to conduct medical review administrative feasibility of the Uniform Health Care Financing Administration activities, we depend upon hospitals to Needs Assessment instrument will be 39404 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices tested in a small-scale trial. Also, a high Medicaid, and the Division of Medicare, a3. Division of Health Standards and risk screener will be developed to in each of the ROs affected by this Quality (FLD(7)A) identify hospital patients in need of proposal. The changes to the functional a4. Division of Health Standards and extensive discharge planning. Testing statements at the division level are Quality (FLD(8,9)A) will be done in two phases minor and can best be characterized as b1. Division of Medicaid (FLD(1–4, 6– approximately 1 year apart. Each phase updates and clarifications of functional 7)B) will involve 12 provider sites, 420 responsibilities. The primary changes b2. Division of Medicaid and Managed patients, and 840 total assessments. occur at the branch level where the ROs Care (FLD(5)B) Frequency: Annually; Affected Public: propose to realign components to b3. Division of Medicaid (FLD(8–9)B) Individuals or households, business or improve services to beneficiaries, c1. Division of Medicare (FLD(1–7)C) other for profit, and not-for-profit streamline their functions, to reduce the c2. Division of Medicare (FLD(8–9)C) institutions; Number of Respondents: number of supervisory positions, d1. Medicare Operations and Policy 420; Total Annual Hours: 1,050. enhance employee empowerment and Cluster (FLDXD) To request copies of the proposed meet the goals of the HCFA SP. The d2. Medicaid Operations and Policy paperwork collections referenced above, functional responsibilities of the Cluster (FLDXE) call the Reports Clearance Office on Division of Medicare and the Division of d3. Program Fiscal Integrity Cluster (410) 786–1326. Written comments and Medicaid are the same in all regions, (FLDXF) recommendations for the proposed except Seattle, with minor variations d4. Consumer Services and information collections should be sent indicated in the functional statements. Information Cluster (FLDXG) within 60 days of this notice directly to The functional statements for DHSQ d5. Managed Care Operations Cluster the HCFA Paperwork Clearance Officer and the Divisions of Medicaid and (FLDXH) designated at the following address: Medicare in Denver and San Francisco d6. Health Care Quality Improvement HCFA, Office of Financial and Human are being republished. The functional Cluster (FLSXJ) Resources, Management Planning and statements for these two ROs will d7. Certification Improvement Cluster Analysis Staff, Attention: John Burke, remain operational until revised by a (FLDXK) Room C2–26–17, 7500 Security proposal later in the year. There are thus Section F.20.D.6.a (Functions) is Boulevard, Baltimore, Maryland 21244– four distinct functional statements for amended to read as follows: 1850. the DHSQ due to variations caused by a1. Division of Health Standards and Dated: July 24, 1995. the concentration of primary Quality (FLD(2–5)A) Kathleen B. Larson, responsibility for medical review activities in three regions (Boston, • Assures that health care services Director, Management Planning and Analysis provided under the Medicare, Medicaid, Staff, Office of Financial and Human Dallas, and Kansas City). The other ROs Resources, Health Care Financing will continue to have responsibility for and CLIA programs are furnished in the Administration. some aspects of medical review but will most effective and efficient manner [FR Doc. 95–18942 Filed 8–1–95; 8:45 am] not have the primary responsibility for consistent with recognized professional the function. The first statement applies standards of care. BILLING CODE 4120±03±P • to those ROs (New York, Philadelphia, Interprets and implements health Atlanta, and Chicago) that do not have safety standards and evaluates their Statement of Organization, Functions, primary responsibility for the medical impact on utilization and quality of and Delegations of Authority; Update review function. The second statement health care services. • of Regional Office Division Level applies to two of the ROs that have Determines approval and denial of Functional Statements primary medical review responsibility, all provider and supplier certification Boston and Dallas. In both of these actions under the Medicare program. Part F of the Statement of • regions, the medical review function Initiates and implements remedial Organization, Functions, and will be assigned to DHSQ. The third actions, including termination of Delegations of Authority for the DHSQ statement applies to Kansas City, agreements or alternative sanctions Department of Health and Human where the medical review function will against health care facilities not in Services, Health Care Financing be assigned to the immediate ORA compliance with Medicare Administration (HCFA), (Federal rather than DHSQ. The fourth statement requirements. Register, Vol. 59, No. 60, pp. 14658– • applies to the Denver and San Francisco Makes final determination on all 14659, dated Tuesday, March 29, 1994) which retain the current DHSQ initial and supplemental budget is being amended to reflect changes to functional responsibility until revised requests submitted by State survey the functional statements to the Division by a streamlining proposal later this agencies. level components within the HCFA • year. Monitors and evaluates State Regional Offices (ROs). Eight of the ROs The functional statements for DHSQ activities related to Medicare and propose to streamline their Medicaid survey and certification. and the Division of Medicaid and the • organizational structure in accordance Division of Medicare in Denver and San Oversees and monitors joint State with HCFA’s Strategic Plan (SP) and the survey agency/ESRD Network activities. Francisco are being republished to avoid • recommendations contained in the confusion. Authorizes investigation of National Performance Review. Seattle The specific amendments to Part F. complaints received from the public, the plans to streamline as a demonstration are as follows: Congress, the media, and other sources project to last up to 18 months. Seattle • Section F.10.D.6 (Organization) is which allege deficiencies in the quality will establish seven organizations, amended to read as follows: of care rendered by certified health care called Clusters, that will report to the providers. Office of the Regional Administrator 6. Office of the Regional Administrator • Coordinates State survey agency (ORA). The other ROs will retain the a1. Division of Health Standards and activities related to COBRA dumping, basic three division structure, including Quality (FLD(2–5)A) sanctions and civil money penalties. the Division of Health Standards and a2. Division of Health Standards and • Actively participates in and takes a Quality (DHSQ), the Division of Quality (FLD(1,6)A) lead role in training, outreach and Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39405 collaborative activities involving the certification program, CLIA, and • Actively participates in and takes a providers, provider groups, and State QIPs. lead role in training, outreach and survey agencies, relating to quality of • Authorizes investigation of collaborative activities involving health care services. complaints received from beneficiaries, providers, provider groups, and State • Provides leadership in the the public, the Congress, the media, and survey agencies, relating to quality of development, implementation and other sources which allege deficiencies health care services. continuation of Continuous Quality in the quality of care rendered by • Provides leadership in the Improvement activities for the State certified health care providers. development, implementation and survey agencies and providers. • Actively participates in and takes a continuation of continuous Quality • Directs RO activities in support of lead role in training, outreach and Improvement activities for the State HCFA’s National Managed Care collaborative activities involving survey agencies and providers. Program. providers, provider groups, health care professionals, professional a4. Division of Health Standards and a2. Division of Health Standards and reorganizations, consumer groups, and Quality (FLD(8,9)A) Quality (FLD(1,6)A) State survey agencies, relating to quality • Assures that health care services • Oversees, monitors, coordinates, of health care services. provided under the Medicare and and evaluates the State Survey agencies, • Provides leadership in the Medicaid programs are furnished in the Peer Review Organizations (PROs), and development, implementation and most effective and efficient manner ESRD Networks. continuation of continuous Quality consistent with recognized professional • Assures that health care provided Improvement activities for the State standards of care. • under the Medicare, Medicaid, and survey agencies and providers. Interprets and implements health CLIA programs are appropriate, of high • Provides leadership in the quality safety standards and evaluates their quality, and meet recognized improvement aspects of HCFA’s impact on utilization and quality of professional standards of care. National Managed Care Program. health care services. • • • Improves the quality of care Develops and conducts training Determines approval and denial of provided to Medicare beneficiaries by programs for the State survey agencies. all provider and supplier certification • Provides clinical assistance and actions under the Medicare program. administration of the PROs and ESRD • Network programs, hereafter referred to technical direction to QIPs in the Initiates and implements remedial as Quality Improvement Programs selection and evaluation of project, and actions, including termination of (QIPs). Under the Health Care Quality develops, executes and measures HCFA agreements against health care facilities Improvement Program (HCQIP), QIPs directed cooperative clinical projects. not in compliance with Medicare collaborate with providers to identify requirements. a3. Division of Health Standards and • Makes final determination on all and act upon opportunities for the Quality (FLD(7)A) quality of health care services. initial and supplemental budget • Oversees, monitors, and evaluates requests submitted by State survey • Oversees the negotiation and award the State survey agencies and Medicaid agencies. of contracts for QIPs. State agencies. • Monitors and evaluates State • Interprets and implements health • Assures that health care services activities related to Medicare and and safety standards and evaluates, provided under the Medicare, Medicaid, Medicaid survey and certification. through surveillance, and surveys, their and CLIA programs are furnished in the • Oversees, monitors, and evaluates impact on the utilization and quality of most effective manner consistent with Peer Review Organizations (PROs), health care services. • recognized professional standards of including recommendations for contract Evaluates services to ensure care. renewal, extension, and modification. protection of beneficiaries receiving • Interprets and implements health • Recommends approval or health care services under the Medicare, and safety standards and evaluates, withholding of monthly voucher Medicaid, and CLIA programs. • through surveillance, assessments and payments to PROs. Provides leadership and direction surveys, their impact on the utilization • Authorizes investigation of in beneficiary information and outreach and quality of health care services. complaints received from the public, the activities concerning health care • Determines approval, denial, or Congress, the media, and other sources services, including information to termination of all provider and supplier which allege deficiencies in the quality enable beneficiaries to make informed certification actions under the Medicare of care rendered by certified health care health care choices. program. providers. • Determines program eligibility for • Implements and coordinates State, • Coordinates State survey agency all providers and suppliers under the Contractor, and carrier activities related activities related to sanctions and civil Medicare program, and executes to adverse sanctions and alternative money penalties. required agreements. remedies. • Initiates, implements, and • Makes final determination on all b1. Division of Medicaid (FLD(1–4,6– coordinates State related adverse actions budget requests submitted by State 7)B) and alternative remedies, including civil survey agencies. • Plans, manages and provides money penalties, and Federal activities • Establishes and maintains an Federal leadership to State agencies in against health care facilities not in extensive data and information program development, implementation, compliance with Medicare or CLIA gathering system involving all aspects of maintenance, and the regulatory review requirements. the certification. of State Medicaid program management • Makes final determination on all • Authorizes investigation of activities under title XIX of the Social budget request submitted by State complaints received from the public, the Security Act. survey agencies. Congress, the media, and other sources • Plans, directs, coordinates, and • Establishes and maintains an which allege deficiencies in the quality approves Medicaid State agency data extensive data and information of care rendered by certified health care processing systems (including MMIS)), gathering system involving all aspects of providers. proposals, modifications, operations, 39406 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices contracts, and reviews. Assists Medicaid appropriate, takes action to disallow • Assures the propriety of Federal State agencies in developing innovative claims. Medicaid expenditures and, where automated data processing health care • Consults with and provides appropriate, takes action to disallow systems. Assures the propriety of guidance to States on appropriate claims. Federal expenditures. matters including the interpretation of • Consults with and provides • Reviews, evaluates, and determines Federal requirements, options available guidance to States on appropriate acceptability of audit findings and to States under these requirements, and matters including the interpretation of recommendations and takes necessary information on practices in other States. Federal requirements, options available clearance and closure actions. • Provides consistent policy guidance to States under these requirements, and • Maintains day-to-day liaison with to States on Medicaid program information on practices in other States. State agencies and monitors their administration and the amount, • Provides consistent policy guidance Medicaid program activities and duration, scope, and payment for health to States on Medicaid program practices by conducting periodic services under the State program. administration and the amount, program management and financial • Monitors State agency Medicaid duration, scope, and payment for health reviews to assure State adherence to activities by conducting periodic services under the State program. Federal law and regulations. program management and financial • Monitors State agency Medicaid • Reviews, approves, recommends reviews to assure State adherence to activities by conducting periodic disapproval, and maintains official State Federal laws and regulations. program management and financial plans and plan amendments for medical • Reviews, approves, and maintains reviews to assure State adherence to assistance. official State plans and State plan Federal laws and regulations. • Reviews, approves, and monitors amendments for medical assistance. • Reviews, approves, and maintains State payment systems and determines • Directs activities in support of the official State plans and State plan the allowablity of claims for Federal Medicare managed care program amendments for medical assistance. financial participation. Takes action to including technical support and • Reviews, approves or recommends disallow claims when expenditures are oversight of these plans. for disapproval, and monitors State not in accordance with Federal • Reviews, approves or recommends institutional payment plans and systems requirements and defends such action for disapproval, and monitors State (after CO concurrence for hospitals and before the Departmental Appeals Board institutional payment plans and systems long term care facilities). and in court. Defers payment action on (after CO concurrence for hospitals and • Reviews States’ quarterly questionable State claims for long term care facilities). statements of expenditures and allowability. • Reviews States’ quarterly recommends appropriate action on • Reviews States’ Medicaid quarterly statements of expenditures and amounts claimed. estimates and statement of expenditures recommends appropriate action on • Defers payment action on and recommends the amount to be amounts claimed. questionable State claims for estimated and allowed in the quarterly • Defers payment action on allowability. grants. questionable State claims for • Issues orders suspending Federal • Implements title XIX special allowability. financial participation on unallowable initiatives and special or experimental • Issues orders suspending Federal State Title XIX payments and defends programs such as Maternal and Child financial participation on unallowable disallowance actions at Departmental Health, Acquired Immune Deficiency State Title XIX payments and defends Appeals Board. Syndrome, statewide 1115 waivers, disallowance actions at Departmental • Plans, directs, and coordinates the Freedom of Choice Waivers (1915(b), Appeals Board. review and approval of Medicaid State Home and Community Based Services • Plans, directs, and coordinates the agency data processing systems, Waivers (1915c), and operations of review and approval of Medicaid State proposals, modifications, operations, major management initiatives. agency data processing systems, and contracts. • Provides consistent guidance, proposals, modifications, operations, • Implements Title XIX special technical assistance, and policy and contracts. initiatives, such as Maternal and Child interpretation to States on Medicaid • Implements Title XIX special Health, Acquired Immune Deficiency program and financial issues. initiatives, such as maternal and child Syndrome, prepaid health plans, health • Responds to beneficiary, health, Acquired Immune Deficiency maintenance organization contracts, and Congressional, provider, and public Syndrome, managed care plans, health other special or experimental programs inquiries concerning Medicaid issues, maintenance organization contracts, and and operations of major management including Freedom of Information Act other special or experimental programs initiatives. requests. and operations of major management • Performs Medicaid eligibility • Conducts customer outreach and initiatives. quality control reviews over State service initiatives. • Performs Medicaid eligibility Medicaid eligibility and inspection of • Reviews and approves managed quality control reviews over State care practices to assure their ongoing care contracts and prepaid health plans. Medicaid eligibility and inspection of compliance with Medicaid laws and care practices to assure their ongoing regulations. b2. Division of Medicaid and Managed compliance with Medicaid laws and c1. Division of Medicare (FLD(1–7)C) Care (FLD(5)B) regulations. • Provides Federal leadership to State • Directs Medicare program agencies in program implementation, b3. Division of Medicaid (FLD(8–9)B) administration through working maintenance, and regulatory review of • Provides Federal leadership to State relationship with contractors, providers, State Medicaid program management agencies in program implementation, physicians, beneficiaries, the Social activities under Title XIX of the Social maintenance, and regulatory review of Security Administration district offices, Security Act. State Medicaid program management the Administration on Aging, the Office • Assures the propriety of Federal activities under Title XIX of the Social of Inspector General, and other Federal Medicaid expenditures and, where Security Act. agencies, as well as local and national Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39407 organizations and individuals, as • Coordinates ongoing contractor contractors to monitor funds drawn for required. fiscal management activities, including administrative purposes. • Directs the review and revaluation subcontracting. • Provides technical assistance to of the effectiveness of the Medicare • Negotiates and approves Medicare Medicare contractors in implementing program. contractor budget modifications. corrective actions, resolving operational • Directs activities in support of the • Evaluates Medicare contractor problems, improving their contract Managed Care Program including performance and prepares annual performance, and in implementing technical support and oversight of contractor evaluation report. special HCFA initiatives. • Health Maintenance Organizations, and Manages beneficiary, provider, and • Conducts special studies of other prepaid contractors. public information programs. • • contractor’s performance and identifies Monitor all aspects of contractor Recommends renewals, non- opportunities for improving contractor’s performance including claims/bills renewals, recessions, and terminations effectiveness. processing; coverage decisions; Medical of Medicare contracts. • Coordinates and provides guidance Review; the detection of fraud, abuse, d1. Medicare Operations and Policy to Medicare contractors and providers/ and waste in the Medicare Program; Cluster (FLDXD) suppliers in resolving billing, payment, overpayment identification and coverage, claims processing, and collection; Medicare Secondary Payer • Directs and coordinates the assessment of Medicare fiscal customer service issues. (MSP); provider payment and audit; • payment to physicians and suppliers; intermediary contractor performance to Evaluates proposed regulatory and and electronic media claims. ensure compliance with their Medicare policy changes to the Medicare program • Coordinates on-going contractor contracts. Oversees corrective action and makes recommendations for CO fiscal management activities, including and resolution of operational problems. consideration. • subcontracting, cash management • Integrates program integrity Provides specialized technical activities, and compliance with the considerations into all aspects of support and oversight in such areas as Chief Financial Officers Act. contractor operations to manage trust Part A and Part B appeals. • Negotiates and approves Medicare fund and general fund expenditures in d2. Medicaid Operations and Policy contractor budget and budget a responsible manner, referring Cluster (FLDXE) modifications. potential fraud cases for development • Directs and coordinates Medicare and action to the Program Fiscal • Directs and coordinates the contractor system and workload Integrity Cluster. assessment of Medicaid State agencies transaction activities. Provides advice in • Applies data analysis to assess risk compliance with the Medicaid State the development of the Medicare and/or vulnerability of payment policies plans, with the exception of Transaction System (MTS). to ensure appropriateness of program institutional payment State plans. • Evaluates Medicare contractor expenditures and recommends policy • Provides specialized technical performance and prepares annual and procedure changes to CO as needed. support and expertise to Medicaid State Report of Contractor Performance. • Monitors, evaluates, and assesses agencies and other HCFA components • Manages beneficiary, provider, and Medicare contractors’ performance. including those related to non- public information programs. • Recommends renewals, non- institutional payment; early and • Recommends renewals, non- renewals, rescissions, and terminations periodic screening, diagnosis, and renewals, rescissions, and terminations of Medicare contracts. treatment; third-party liability; • of Medicare contracts. Monitors the Medicare Common eligibility, entitlement, and coverage of • Coordinates the ESRD program. Working File host contractor’s health services; the Vaccines for performance and oversees the c2. Division of Medicare (FLD(8, 9)C) Children program, and maternal and operations and interfaces of the host and infant health. • Directs Medicare program satellites. • • Provides technical assistance to administration through working Provides specialized technical State agencies in implementing relationship with contractors, providers, support and expertise to Medicare corrective actions, resolving problems, physicians, the Social Security contractors and other HCFA and improving the effectiveness of their Administration regional offices, the components in such areas as ESRD, performance. Administration on Aging, the Office of rural health clinics, Part B payment, • Negotiates compliance issues and Inspector General, and other local and medical review, coverage, and coding other problems with State agency national organizations and individuals, issues. • management. as required. Oversees and evaluates Part B • • Directs the review and evaluation of payment changes and Part A and Part B Reviews and approves Medicaid the effectiveness of the Medicare medical review activities. State plan amendments, except for program. • Directs the review of Medicare institutional payment State plans. • Directs activities in support of the contractor data processing systems, • Oversees, coordinates, and assesses Managed Care Program including proposals, and modifications. the operation of State Medicaid Home technical support and oversight of • Reviews, negotiates, and and Community-Based Services health maintenance organizations, and recommends approval of contractor Waivers. other prepaid contractors. budgets, modifications to budget • Provides highly specialized • Monitors all aspects of contractor allotments, and final settlement of technical direction and assistance to performance including claims contractor costs. States regarding computer systems processing, coverage decisions, • Monitors Medicare contractor applications, particularly for the overpayment identification and banking activities and recommends Medicaid Management Information collection, Medicare secondary payor, approval of contractor banking System (MMIS) and the Family provider payment and audit, payment to agreements. Assistance Management Information physicians and suppliers, and electronic • Maintains letter of credit and System procurement, development, and media claims. allotment controls on Medicare installations. 39408 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices d3. Program Fiscal Integrity Cluster • Conducts quality assurance reviews professional organizations, advocacy (FLDXF) of Medicare contractor claims payment organizations, other health care entities, • operations. and the media. Conducts annual System • • Performance Reviews on MMIS Monitors Medicare contractor Directs the implementation of computer systems to validate their overpayment identification and HCFA beneficiary services initiatives, compliance with Federal specifications collection activities, pursues collection such as the Medigap, Retired Senior as well as to confirm their ongoing of overpayments referred to the RO, Volunteer Programs, Information eligibility for enhanced Federal funding. authorizes extended repayment Counseling Assistance grants, and • Oversees fiscal operations of the schedules, assists regional counsel in Qualified Medicare Beneficiary (QMB) Medicare and Medicaid programs. bankruptcy cases; prepares overpayment programs. • Provides direction, technical • Provides leadership and technical cases for offset against Medicaid assistance, and training to the Social assistance to Medicaid State agencies in payments and Internal Revenue Service Security Administration district offices the development and maintenance of refunds; and refers cases to the concerning Medicare entitlement, post- their Medicaid financial management Department of Justice for possible entitlement, and beneficiary education activities, including the recovery of litigation as appropriate. • Provides technical assistance to functions, and monitors the Medicaid overpayments, Medicaid Medicare contractors, Medicaid State performance of these functions. utilization control; and inspection of agencies, and other HCFA components • Coordinates and controls the care reviews. processing of responses to all • Conducts periodic comprehensive in the area of Medicare and Medicaid beneficiary, provider, and Congressional on-site financial reviews to assure State payment and fiscal administration. • Performs special studies of inquiries. adherence to Federal laws, regulations, Medicare institutional payment • Provides specialized technical and State plans. Provides technical practices and recommends corrective support and oversight in such areas as expertise and guidance in the financial action to close loopholes identified. QMB and buy in. system and cost allocation areas. • Conducts the Medicare cost report • Works closely with local • Reviews State quarterly statements evaluation program. congressional and Governor’s offices to of expenditures and recommends • Recommends approval or provide a full array of constituent appropriate actions (including disapproval of common audit services and support. acceptance, deferral or disallowance) on agreements, rural referral centers, and d5. Managed Care Operations Cluster amounts claimed; and in a case of sole community provider exemption (FLDXH) disallowance, prepares HCFA position requests. for Departmental Appeals Board. • • Conducts a broad range of activities • Performs reviews of allowability of Reviews State Medicaid budget costs claimed by Medicare contractors to oversee the operation of Medicare estimates projecting future Federal on the Final Administrative Cost and Medicaid managed care plans to funding requirements and recommends Reports. protect access to care and to enhance appropriate State funding levels to CO. • access to care, especially in rural or • Monitors and reviews Medicare Reviews, approves, or recommends contractors compliance with the Chief other undeserved areas. disapproval, and monitors State Financial Officer’s Act. • Provides leadership and oversight institutional payment plans and systems • Directs the region’s efforts to of health care delivery systems in for hospitals and nursing facilities, and develop and refer cases of suspected Medicare and Medicaid that depart from determines the allowability or fraud in Medicare and Medicaid, the traditional fee-for-service model. nonallowability of claims for Federal maintaining close contact with OIG, • Provides technical advice to health financial participation (FFP); and where Medicaid fraud units at State Agencies, care plans that want to enter into risk State expenditures have not been made and the Department of Justice. and cost contracts for Medicare. in accordance with an approved plan or • Coordinates fraud and abuse • Evaluates applications from Federal requirements, takes action to activities with other HCFA ROs, managed care plans to become Medicare disallow such claims. Medicare contractors, other third party risk or cost contractors and/or expand • Reviews the effectiveness of payers, and CO. operations to assure compliance with specific Medicaid program areas • Reviews the effectiveness of applicable laws and regulations; operated by State agencies, using data specific Medicaid program areas recommends approval or denial of such analysis techniques to assess whether operated by State agencies, using data applications. the State program meets intent. analysis techniques to assess whether • Reviews and approves managed • Together with State agency staff, the State program meets intent. care plan marketing materials to assure develops studies to help the State assess adherence to laws and regulations and its own effectiveness. d4. Consumer Services and Information to assure that Medicare beneficiaries • Participates with CO components in Cluster (FLDXG) receive appropriate and clear the development and design of quality • Ensures that Medicare and information about the plans’ benefit measurements of the Medicaid Medicaid beneficiaries are informed of package and consumer protection. program’s effectiveness. HCFA program benefits, rights, and • Assures contract compliance • Evaluates Medicare contractor’s responsibilities through a through periodic monitoring of plan activities involving Medicare Secondary comprehensive marketing strategy to performance. Payor (MSP) performance and negotiates varied audiences. • In cases of non-compliance, MSP subrogation cases. • Monitors, evaluates, and assesses approves corrective action plan from the • Monitors and negotiates the the performance of Medicare contractors managed care plans and monitors settlement and resolution of audit in their beneficiary outreach and service adherence to the corrective action plan. findings pertaining to the Medicare or organizations. • Maintains ongoing relations with Medicaid programs which originate • Coordinates the operation of a managed care plans in the region and from HHS’ Office of Inspector General public information and outreach works with central office to resolve or the General Accounting Office. programs directed at beneficiary groups, problems plans have with HCFA policy Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39409 or procedures; recommends changes to care through funding and the facilities, and instructs State agencies to CO in policy and procedures as monitoring of Peer Review investigate, as appropriate. appropriate. Organizations (PROs) and ESRD • Makes final recommendations on • Operates a program of beneficiary Networks in a multi-regional geographic all initial budget and supplemental services that includes direct contact area. budget requests submitted by State with the Medicare beneficiary to resolve • Provides leadership to PROs and agencies. problems with particular plans, contract networks to design projects that will • Takes adverse actions against non- through congressional offices improve care to Medicare beneficiaries. complying Medicare facilities. concerning beneficiary problems, and • Maintains knowledge of HCFA data • Establishes and maintains a data contact plans to resolve beneficiary bases, as well as other large health and information gathering system problems. related data bases, and uses these to involving all aspects of the certification • Resolves systems problems that evaluate care provided to the Medicare program. affect beneficiary eligibility/entitlement population. • Conducts Federal surveys of under a particular managed care plan. • Oversees the PROs’ development of providers and suppliers of health • Receives and evaluates complaints local quality studies to assure scientific services to ensure that State monitoring from beneficiaries concerning quality of merit and program relevance. is satisfactory. care and refers such complaints to PROS • Encourages PROs and ESRD • Performs or authorizes validation for further investigation as appropriate. networks to work with providers to use surveys in accredited institutions to • Conducts data analysis of plan the results of local quality studies to determine their compliance with performance indicators to determine fashion interventions to improve care. Federal standards. whether plans need technical assistance • Conducts special regionwide • Conducts surveillance and or corrective action. studies to evaluate care provided to assessment of State agency operations • Through ongoing information Medicare beneficiaries, including regarding quality of care, and assists gathering in the health care beneficiary groups which may have them in developing the capability to marketplace, provides early warning to special health care needs, and works provide direct assistance to providers CO on polices that might impede the through PROs to help providers design and suppliers of health services in the risk contracting in Medicare as interventions to improve care. improvement of their performance. commercial/public member limits and • Disseminates useful information to • Conducts studies, pilot projects, rate setting. providers and to beneficiaries to and experimental programs and assists • Provides leadership and technical improve quality of care. in implementing techniques designed to support to States in designing and • Convenes groups at the local level improve the survey and certification implementing Medicaid managed care to collaborate on studies involving the process and peer review systems. programs. quality of care provided to the • Conducts training of State surveyors • Evaluates requests for freedom of Medicare, Medicaid, and managed care as needed and indicated by Federal choice waivers for Medicaid managed populations; this includes bringing monitoring. care plans to assure that access to care together variously funded sources such Dated: July 19, 1995. is maintained or enhanced and that as universities, foundations, and State Bruce C. Vladeck, projected costs comply with applicable offices with similar interests in quality Administrator, Health Care Financing law and regulation. of care. Administration. • Reviews and approves contracts • Participates in the negotiation and [FR Doc. 95–18977 Filed 8–1–95; 8:45 am] between States and providers to assure award of contracts to PROs. compliance with Federal law and • Prepares technical and budget BILLING CODE 4120±01±P regulation. evaluations of contract proposals • Provides early technical assistance received from PROs, and makes Substance Abuse and Mental Health to States that plan to apply for Section judgments to commit Federal funds for Services Administration 1115 waivers to implement Statewide program implementation. health care reform. • Monitors and assesses the overall • Cooperative Agreement With the State Works closely with CO to evaluate quality performance of PROs including of Hawaii requests for Section 1115 waivers, success in using local projects to assuming a lead role when the waiver is improve care for Medicare beneficiaries. AGENCY: Center for Substance Abuse approved and implementation begins. Treatment, Substance Abuse and Mental • Provides ongoing technical d7. Certification Improvement Cluster Health Services Administration assistance to States with active (FLDXK) (SAMHSA), HHS. statewide Section 1115 waivers to • Manages the State agency ACTION: Notice of planned cooperative assure that conditions of the waiver are evaluation program and assesses the agreement award to the State of Hawaii adhered to and that access to care is performance of the State survey agency to serve a rural area in the Hawaiian adequate. in their survey and certification review Islands with a focus on substance abuse • Provides technical assistance to process for compliance with among Native Hawaiians and other States in finding creative and new performance standards. residents of rural Hawaii. methods of delivering Medicaid services • Works with the States to design through a variety of managed care internal quality assurance programs. SUMMARY: The Center for Substance arrangements. • Negotiates State agency agreements Abuse Treatment (CSAT), SAMHSA, is and issues substantive regional publishing this notice to provide d6. Health Care Quality Improvement guidelines containing policy and information to the public of a planned Cluster (FLDXJ) procedural interpretations relating to single source cooperative agreement • Assures that medical care, paid for certification activities. award to the State of Hawaii for the by Federal Medicare funds, is medically • Evaluates complaints from the development and evaluation of systems necessary and meets recognized public, media, Congress, and others of substance abuse and/or dependence professional standards and quality of alleging deficient standards in provider intervention, treatment and recovery 39410 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices services among rural Native Hawaiians. exclusive purpose of providing services Center for Mental Health Services; Other residents of rural Hawaii residing to this population in need. Meeting in the particular services area may also The proposed project will focus on be provided services. The anticipated Pursuant to Pub. L. 92–463, notice is improving the availability and hereby given of the meeting of the project period is three years and the accessibility of substance abuse estimated FY 1995 award is $500,000. Center for Mental Health Services treatment services for Native Hawaiians An award will be made based on an (CMHS) National Advisory Council in and other neighboring residents of rural acceptable application that is approved September 1995. by a peer review committee and the Hawaii. No non-native Hawaiian The meeting of the CMHS National CSAT National Advisory Council. residing in the service area will be Advisory Council will include a denied services based on their status as discussion of the mission and programs AUTHORITY/JUSTIFICATION: A cooperative non-native Hawaiians. Further, the of the Center, administrative agreement award will be made under required evaluation component of the announcements and program the authority of section 510(b)(1) of the program will provide information useful developments. It will focus on managed Public Health Service (PHS) Act, as care initiatives across the country and amended (42 U.S.C. 290bb–3). in the future design of rural substance abuse treatment programs. CMHS’s leadership role in providing The Catalog of Federal Domestic consultative services to states pursuing Assistance number for this program is Since the only sizable number of managed care activities. The Council 93.122. Native Hawaiians are found in Hawaii, will also be performing review of The State of Hawaii has been selected and consistent with CSAT’s goals to applications for Federal assistance and for an award because of the special coordinate Federal, State and local individual contract proposals; therefore, substance abuse problems of Native treatment planning and coordination portions of this meeting will be closed Hawaiians. Hawaii also has the highest provision of other health care services, to the public as determined by the percentage of chronic drinkers in the and data collection efforts, and to work Administrator, SAMHSA, in accordance Nation. Among Native Hawaiians who in partnership with the single State with 5 U.S.C. 552b(c)(3), (4) and (6) and self reported drinking patterns from the agencies (SSAs) to administer 5 U.S.C. app. 2 10(d). age of 18 to 34, 90 percent of males and discretionary funds to the maximum A summary of the meeting and/or a 67 percent of females identified extent practical, eligibility is being roster of Council members may be themselves as heavy drinkers and/or limited to the State of Hawaii. The obtained from: Gloria Yockelson, substance abuse users. Almost one-fifth Hawaii Department of Health, as the Committee Management Officer, CMHS, of the adult drinking population meet SSA for alcohol and drug abuse, is Room 18C–07, Parklawn Building, the screening criteria for alcoholism and uniquely qualified to carry out the Rockville, Maryland 20857, Telephone: over 10 percent of pregnant women proposed project because it has (301) 443–7919. tested in a four-month period had mechanisms in place for securing Substantive program information may positive drug urine results at the time of pertinent information from public and be obtained from the contact whose delivery. private nonprofit agencies for service name and telephone number is listed In addition, rural remote areas of below. Hawaii, such as the Neighbor Islands of planning, management, evaluation and data collection. It also has the unique Committee Name: Center for Mental Health Kauai, Maui, Molokai, Lanai and the Big Services, National Advisory Council. Island of Hawaii, are very isolated and ability to coordinate health services, oversight and maximize the long-term Meeting dates: September 11–12, 1995. have limited substance abuse treatment Place: Chevy Chase Holiday Inn, 5520 and related services. Lack of benefit of the award. It is anticipated Wisconsin Avenue, Chevy Chase, Maryland transportation and communication are that the high degree of interdisciplinary 20815. common problems, thus, access to the State involvement will facilitate Closed: September 11, 8:30 a.m.–10:30 a.m. very limited substance abuse and planning and integration of services, as Open: September 11, 10:30 a.m.–5 p.m. related health care services is difficult, well as State support of systemic Open: September 12, 9 a.m.–adjournment. if not impossible. improvements after Federal support is Contact: Anne Mathews-Younes, Ed.D., no longer available. Room 11C–26, Parklawn Building, The availability of treatment services Telephone: (301) 443–3606. for Native Hawaiians and other The cooperative agreement Dated: July 25, 1995. neighboring residents of rural areas is mechanism is being used for this award Jeri Lipov, inadequate to meet the extensive needs in order to facilitate the coordination of Committee Management Officer, Substance for treatment and related services. For this project with the five projects example, there are only 32 licensed Abuse and Mental Health Services funded under this program in Administration. residential treatment beds in Maui, 30 September 1993, as well as with other on the Big Island and 6 on Kauai. None [FR Doc. 95–18887 Filed 8–1–95; 8:45 am] SAMHSA, PHS, HHS, and Departments BILLING CODE 4162±20±P exist on Lanai or Molokai. The Neighbor of Justice, Housing and Labor programs. Islands have virtually no methadone services, either for methadone FOR FURTHER INFORMATION CONTACT: National Advisory Council; Meetings detoxification or maintenance. The Big Clifton D. Mitchell, CSAT/SAMHSA, Island has just begun to provide Rockwall II, Room 740, 5600 Fishers Pursuant to Pub. L. 92–463, notice is methadone maintenance to 30 of those Lane, Rockville, MD 20857; telephone hereby given of the meetings of the in need. Three hundred and fifteen (301) 443–8802. Substance Abuse and Mental Health individuals are currently on the Big Dated: July 26, 1995. Services Administration (SAMHSA) Island waiting list for these services. In National Advisory Council in view of these considerations and in Richard Kopanda, September 1995. order to assure that specific attention is Acting Executive Officer, Substance Abuse The September 1 teleconference focused on rural Native Hawaiians and and Mental Health Services Administration. meeting will include the review, their neighbors, it has been determined [FR Doc. 95–18880 Filed 8–1–95; 8:45 am] discussion and evaluation of contract that $500,000 should be reserved for the BILLING CODE 4162±20±P proposals. Therefore, a portion of the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39411 meeting will be closed to the public as name and telephone number is listed SUPPLEMENTARY INFORMATION: The determined by the Administrator, below. Department has submitted the proposal SAMHSA, in accordance with 5 U.S.C. Committee Name: Substance Abuse and for the collection of information, as 552 b(c) (3), (4) and (6) and 5 U.S.C. Mental Health Services Administration, described below, to OMB for review, as app. 2 10(d). National Advisory Council. required by the Paperwork Reduction A portion of the meeting will be open Meeting Date: September 11, 1995. Act (44 U.S.C. Chapter 35). in order to allow public participation. Place: Omni-Shoreham Hotel, 2500 Calvert Attendance by the public will be limited Street, NW., Washington, DC 20008. The Notice lists the following to space available. Open: September 11, 1995, 9 a.m. to 6 p.m. information: (1) the title of the A summary of the meeting and a Contact: Toian Vaughn, Room 12C–15, information collection proposal; (2) the roster of Council members may be Parklawn Building, Telephone: (301) 443– office of the agency to collect the obtained from: Ms. Susan E. Day, 4640 and FAX: (301) 443–1450. information; (3) the description of the Program Assistant, SAMHSA National Dated: July 25, 1995. need for information and its proposed Advisory Council, 5600 Fishers Lane, Jeri Lipov, use; (4) the agency form number, if Room 12C–15, Rockville, Maryland Committee Management Officer, Substance applicable; (5) what members of the 20857. Telephone: (301) 443–4640. Abuse and Mental Health Services public will be affected by the proposal; Substantive program information may Administration. (6) an estimate of the total number of be obtained from the contact whose [FR Doc. 95–18879 Filed 8–1–95; 8:45 am] hours needed to prepare the information name and telephone number is listed BILLING CODE 4162±20±P submission including number of below. respondents, frequency of response, and Committee Name: Substance Abuse and hours of response; (7) whether the Mental Health Services Administration, DEPARTMENT OF HOUSING AND proposal is new or an extension, National Advisory Council. URBAN DEVELOPMENT reinstatement, or revision of an Meeting Date: September 1, 1995. information collection requirement; and Place: Substance Abuse and Mental Health Office of Administration (8) the names and telephone numbers of Services Administration—Parklawn an agency official familiar with the Building, Conference Rm. 12–94, 5600 [Docket No. FR±3647±N±06] proposal and of the OMB Desk Officer Fishers Lane, Rockville, MD 20857. for the Department. Open: September 1, 1994 1 p.m. to 1:30 Notice of Submission of Proposed p.m. Information Collection to OMB Authority: Section 3507 of the Paperwork Closed: September 1, 1995, 1:30 p.m. to Reduction Act, 44 U.S.C. 3507; Section 7(d) 3:30 p.m. AGENCY: Office of Administration, HUD. of the Department of Housing and Urban Contact: Toian Vaughn, Room 12C–15, Development Act, 42 U.S.C. 3535(d). ACTION: Notice. Parklawn Building, Telephone: (301) 443– Date: July 20, 1995. 4640 and FAX: (301) 443–1450. SUMMARY: The proposed information David S. Cristy, The September 11 meeting of the collection requirement described below Director, Information Resources Management SAMHSA National Advisory Council has been submitted to the Office of Policy and Management Division. will include discussions of SAMHSA’s Management and Budget (OMB) for Notice of Submission of Proposed reauthorization, budget issues, and review, as required by the Paperwork Information Collection to OMB status of SAMHSA’s Strategic Plan. Reduction Act. The Department is There will also be discussions on the soliciting public comments on the Proposal: Annual Contributions for services research activities and research subject proposal. Operating Subsidies—Performance dissemination efforts of the National ADDRESSES: Interested persons are Funding System: Determination of Institute of Mental Health, the National invited to submit comments regarding Operating Subsidy, Vacancy Rule (FR– Institute on Alcohol Abuse and this proposal. Comments must be 3647). Alcoholism and the National Institute received within thirty (30) days from the on Drug Abuse. In addition, there will Office: Public and Indian Housing. date of this Notice. Comments should be status reports by the Council’s Description of the Need for the refer to the proposal by name and workgroups on Health Care Reform, Information and its Proposed Use: The should be sent to: Joseph F. Lackey, Jr., Children’s Services, and Co-Occurring information is used by Public Housing OMB Desk Officer, Office of Mental Illness and Substance Use Authorities/Indian Housing Authorities Management and Budget, New Disorders. (PHAs/IHAs) for inclusion in budget The meeting will be open and Executive Office Building, Washington, submissions which are reviewed and attendance by the public will be limited DC 20503. approved by Field Offices as the basis to space available. FOR FURTHER INFORMATION CONTACT: for obligating operating subsidies. The A summary of the meeting and a Kay F. Weaver, Reports Management information is necessary in order to roster of Council members may be Officer, Department of Housing and calculate the eligibility for operating obtained from: Ms. Susan E. Day, Urban Development, 451 7th Street, subsidies under the Performance Program Assistant, SAMHSA National Southwest, Washington, DC 20410, Funding System. telephone (202) 708–0050. This is not a Advisory Council, 5600 Fishers Lane, Form Number: HUD–52728–A. Room 12C–15, Rockville, Maryland toll-free number. Copies of the proposed 20857. Telephone: (301) 443–4640. forms and other available documents Respondents: State, Local or Tribal Substantive program information may submitted to OMB may be obtained Government. be obtained from the contact whose from Ms. Weaver. Reporting Burden: Number of re- × Frequency of × Hours per Burden spondents response response = hours HUD±52728±A ...... 3,100 1 2 6,200 39412 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Total Estimated Burden Hours: 6,200. Dated: July 18, 1995. Dated: July 25, 1995. Status: Reinstatement with changes. Michael F. Dwyer, Melanie J. Rohrer, Contact: Stephen H. Sprague, HUD, District Manager. Acting District Manager. (202) 708–1872; Joseph F. Lackey, Jr., [FR Doc. 95–19017 Filed 8–1–95; 8:45 am] [FR Doc. 95–18883 Filed 8–1–95; 8:45 am] OMB, (202) 395–7316. BILLING CODE 4310±HC±M BILLING CODE 4310±32±M Dated: July 20, 1995. [FR Doc. 95–18878 Filed 8–1–95; 8:45 am] [AZ±040±05±1040±00] BILLING CODE 4210±01±M [NV±030±1430±01; CAS 2404] Meeting for the Gila Box Advisory Termination of Classification of Public Committee DEPARTMENT OF THE INTERIOR Lands for Multiple-Use Management AGENCY: Bureau of Land Management, and Opening Order; California Bureau of Land Management Interior. AGENCY: Bureau of Land Management, ACTION: Notice of meeting. [NV±056±95±1610±00] Interior. SUMMARY: Notice is hereby given in ACTION: Notice. Red Rock Canyon National accordance with 43 CFR 1780 that a Conservation Area; Preparation of the meeting of the Gila Box Riparian SUMMARY: This notice terminates a Final General Management Plan/ National Conservation Area (NCA) classification of public land for Environmental Impact Statement Advisory Committee will be held. multiple-use management (CAS 2404). The land will be opened to the Dated: July 18, 1995. DATES: Friday August 25, 1995, 10 a.m.– 4 p.m., Safford District Office. Saturday, operation of the public lands laws AGENCY: Bureau of Land Management, including the mining laws, subject to Interior. September 9, 1995, 10 a.m.–4 p.m., Safford District Office. valid existing rights, the provisions of ACTION: Preparation of the Final General existing withdrawals, other segregations ADDRESSES: Management Plan/Environmental BLM Safford District Office, of record, and the requirements of Impact Statement (GMP/EIS) for Red 711 14th Ave., Safford, Arizona. applicable law. The land has been and Rock Canyon National Conservation SUPPLEMENTARY INFORMATION: The NCA remains open to the operation of the Area (RRCNCA). Advisory Committee was established by mineral leasing laws. the Arizona Desert Wilderness Act of EFFECTIVE DATE: Termination of the SUMMARY: Pursuant to Public Law 103– 1990 to provide input to the Safford classification is effective on August 2, 621 (11/2/94) which expanded the District on management of the Gila Box 1995. The land will be open to entry at boundaries of RRCNCA as designated in Riparian National Conservation Area 10 a.m. on September 1, 1995. the Red Rock Canyon National (NCA). The Committee is continuing Conservation Establishment Act Public work on the Gila Box Interdisciplinary FOR FURTHER INFORMATION CONTACT: Law 101–621 (11/16/90) and amends Activity Plan, which will be completed Duane Marti, BLM California State portions of the Act, the Las Vegas by December 1995. Office (CA–931.4), 2800 Cottage Way, District, BLM, is initiating preparation At these meetings the committee will Room E–2845, Sacramento, California of a Final General Management Plan/ (1) continue to refine management 95825–1889; telephone number 916– Environmental Impact Statement (GMP/ actions and (2) finalize preferred 979–2858, or Steep Weiss, BLM Walker EIS) for the NCA as expanded. An alternative. Resource Area Office, 1535 Hot Springs Interim GMP (IGMP) based on a Draft All meetings are open to the public. Road, Suite 300, Carson City, Nevada GMP for the RRCNCA as originally Interested persons may make oral 89706–0638; telephone number 702– designated has been completed and will statements to the Committee (from 885–6134. be in effect until completion of the Final 10:30–11 a.m.) or may file written SUPPLEMENTARY INFORMATION: On March GMP. statements for consideration by the 27, 1969, approximately 38,815 acres of Public scoping meetings will be held Committee. Anyone wishing to make an public lands were classified for in September to receive public comment oral statement must contact the BLM multiple-use management under the Act on issues related to the lands added to Gila Resource Area Manager at least two of September 19, 1964 (43 U.S.C. 1411– the NCA as well as revisit issues from working days prior to the meeting. 18). The land was segregated from the planning process to date. Written Written statements are also accepted at appropriation under the public lands comments and discussions from past any time during preparation of the draft laws and the general mining laws. The meetings will continue to be considered plan; and will be reviewed by the classification decision was published in in the process of developing the final committee. the Federal Register, on April 4, 1969 GMP. The meeting dates and locations States should be mailed to Elmer (34 FR 6124). On September 14, 1984, are as follows: Walls, Team Leader, Gila Resource that classification was terminated for all Wednesday, September 6, 1995—7:00 Area, 711 14th Ave., Safford, Arizona but 2,120 acres, which are described pm to 9:00 pm 85546. below. The decision to terminate the Saturday, September 9, 1995—7:00 pm Summary minutes of the meeting will classification in part was published in to 9:00 pm be maintained in the Safford District the Federal Register on September 21, The above meetings will be held at Office and will be available for public 1984 (49 FR 37183). the BLM District Office located at 4765 inspection (during regular business Pursuant to the Federal Land Policy Vegas Drive, Las Vegas, Nevada, 89108. hours) within 30 days after each and Management Act of 1976, as Written comments may be mailed to the meeting. amended (43 U.S.C. 1701 et seq.), and same address to the attention of Gene FOR FURTHER INFORMATION: Meg Jensen, the regulations contained in 43 CFR Arnesen or Dave Wolf. Gila Resource Area Manager, or Elmer 2091.7–1(b)(3) and 2461.5(c)(2), the For additional information call Gene Walls, Team Leader, 711 14th Ave., Classification of Public Lands for Arnesen at 647–5068 or Dave Wolf at Safford Arizona 85546, Telephone (520) Multiple-Use Management , CAS 2404, 647–5074. 428–4040. is hereby terminated in its entirety and Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39413 the segregation for the following Dated: July 13, 1995. under 43 CFR Subparts 8365.1 and described land is hereby terminated: Ed Hastey, 8365.2. They would apply to all public lands under the jurisdiction of the Mount Diablo Meridian State Director. [FR Doc. 95–18944 Filed 8–1–95; 8:45 am] BLM’s Albuquerque District, New T. 10 N., R. 20 E., BILLING CODE 4310±40±P Mexico. Supplementary rulemaking is Sec. 3, lots 2 and 3, W1⁄2 lot 9, W1⁄2E1⁄2 lot provided for under Title 43 CFR, 9, lots 10 to 14, inclusive, W1⁄2SW1⁄4, and Subpart 8365. W1⁄2E1⁄2SW1⁄4; [WY±920±41±5700; WYW103178] The users of public lands are expected Sec. 4, lots 5 to 8, inclusive, E1⁄2 lot 9, E1⁄2 to follow certain rules designed to 1 Notice of Proposed Reinstatement of lot 10, E ⁄2 lot 11, lots 17 and 18, and protect the lands and its natural 1 1 Terminated Oil and Gas Lease S ⁄2SE ⁄4; resources, to mitigate use conflicts, to Sec. 8, NE diagonal 1⁄2 of SE1⁄4; July 24, 1995. implement management plans, and for Sec. 9, SW1⁄4; Pursuant to the provisions of 30 the protection, comfort and well-being Sec. 10, E1⁄2SE1⁄4SE1⁄4; U.S.C. 188 (d) and (e), and 43 CFR of other users of the public lands. These Sec. 11, W1⁄2NW1⁄4NE1⁄4, NE1⁄4NW1⁄4, 3108.2–3 (a) and (b)(1), a petition for rules will also provide for the protection E1⁄2NW1⁄4NW1⁄4, E1⁄2SW1⁄4NW1⁄4, reinstatement of oil and gas lease of persons and resources in the interest W1⁄2SE1⁄4NW1⁄4, W1⁄2NE1⁄4SW1⁄4, 1 1 1 1 1 WYW103178 for lands in Campbell and spirit of cooperation with local, E ⁄2NW ⁄4SW ⁄4, SW ⁄4SW ⁄4, and state and other federal agencies. Except W1⁄2SE1⁄4SW1⁄4; County, Wyoming, was timely filed and as otherwise provided for by federal law Sec. 14, W1⁄2NW1⁄4NW1⁄4; was accompanied by all the required or regulations, state and local laws and Sec. 15, NE1⁄4NE1⁄4 and E1⁄2NE1⁄4SW1⁄4; rentals accruing from the date of ordinances shall apply and be enforced Sec. 22, SW1⁄4SE1⁄4; termination. The lessee has agreed to by the appropriate state and local Sec. 26, NW1⁄4NW1⁄4; the amended lease terms for rentals and authorities. Sec. 27, N1⁄2NE1⁄4. royalties at rates of $5.00 per acre, or T. 11 N., R. 20 E., fraction thereof, per year and 162⁄3 This notice supersedes previous notices published in the Federal Sec. 32, W1⁄2SW1⁄4. percent, respectively. The lessee has paid the required $500 Register on August 17, 1989 (Vol. 54, Aggregating approximately 2,120 administrative fee and $125 to No. 158), and February 1, 1991 (Vol. 56, acres in Alpine County. The reimburse the Department for the cost of No. 28), which established classification no longer serves a needed this Federal Register notice. The lessee Supplementary Rules for Designated purpose as to the land described above has met all the requirements for Recreation Sites, Special Recreation and is hereby terminated. reinstatement of the lease as set out in Management Areas and Other Public Lands in the Albuquerque District, New At 10 a.m. on September 1, 1995, the Section 31 (d) and (e) of the Mineral Mexico. land will be opened to the operation of Lands Leasing Act of 1920 (30 U.S.C. Definitions: As used in these the public land laws generally, subject 188), and the Bureau of Land supplementary rules, the term: to valid existing rights, the provision of Management is proposing to reinstate existing withdrawals, other segregations lease WYW103178 effective March 1, —Abandonment means the voluntary of record, and the requirement of 1995, subject to the original terms and relinquishment of control of property applicable law. All valid applications conditions of the lease and the for longer than a period specified with increased rental and royalty rates cited received at or prior to 10 a.m. on no intent to retain possession. above. September 1, 1995 shall be considered —Administrative activities are those as simultaneously filed at that time. Pamela J. Lewis, activities conducted under the Those received thereafter shall be Supervisory Land Law Examiner. authority of the BLM in accordance with applicable laws, regulations and considered in the order of filing. [FR Doc. 95–18943 Filed 8–1–95; 8:45 am] BILLING CODE 4310±22±M policies. At 10 a.m. on September 1, 1995, the —Authorized Officer means any land will be opened to location and employee of the BLM who has been entry under the United States mining [NM±010±05±1220±00/G010±G5±0009] delegated the authority to perform the laws, subject to valid existing rights, the duties in 43 CFR, Part 8360. provisions of existing withdrawals, Establishment of Supplementary Rules —Boat launching/taking out means the other segregations of record, and the for Designated Recreation Sites, transfer of a boat from or to a vehicle requirements of applicable law. Special Recreation Management Areas, or trailer, to or from the water to begin Appropriation of any of the land and Other Public Lands in or end a floatboat trip. described in this order under the Albuquerque District, New Mexico —Campfire means a controlled fire general mining laws prior to the date AGENCY: Bureau of Land Management occurring outdoors for cooking, and time of restoration is unauthorized. (BLM), Interior. branding, personal warmth, lighting, Any such attempted appropriation, ACTION: Proposed supplementary rules; ceremonial or aesthetic purposes. including attempted adverse possession request for comment. —Camping means the erecting of a tent under 30 U.S.C. 38 (1988), shall vest no or shelter of natural or synthetic rights against the United States. Acts SUMMARY: These proposed rules, material, preparing a sleeping bag or required to establish a location and to published for a 30-day comment period, other bedding material for use, or the initiate a right of possession are are needed for managing actions, parking of a motor vehicle, motor governed by State law where not in activities, and use on public lands, home or trailer for the apparent conflict with Federal law. The Bureau of including lands that have been acquired purpose of overnight occupancy. Land Management will not intervene in or conveyed to the BLM. These rules Occupying a developed campsite or disputes between rival locators over would establish criteria for individual an approved location within possessory rights since Congress has conduct to protect persons, property, developed recreation areas and sites provided for such determination in local and public lands and resources, and during the established night period of courts. would supplement those established 10 p.m. to 6 a.m. will be considered 39414 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices overnight camping for fee collection cubic foot per species per year; and camping stay limits. The 28-day period and enforcement purposes. for specimens and samples of rocks begins when a camper initially occupies —Developed recreation sites and areas and minerals are small amounts of a specific location on public land. The are those that contain structures or non-renewable resources used for 14-day limit may be reached either capital improvements primarily used hobby purposes, not to exceed 250 through a number of separate visits or for recreation purposes by the public. pounds per year and not to include through 14 days of continuous Development may vary from limited common mineral materials. occupation. After the 14th day of improvements for protecting the —Special Recreation Management Area occupation, campers must move beyond resources and the safety of users, to (SRMA) means an area where special a 25-mile radius from the previous distinctly defined sites where or more intensive types of resource location, and must not return to a developed facilities are provided for and user management are needed. location within this radius for 30 days concentrated public recreation use. —Stove fire means a fire built inside an or longer. Such sites meet criteria of the Land enclosed stove or grill, a portable • Park any motor vehicle for longer and Water Conservation Fund Act of brazier, or a pressurized liquid or gas than 30 minutes or camp within 300 1965 (as amended) for fee collection stove, including space-heating yards of any spring, manmade water sites. devices. hole, water well, or watering tank used —Disorderly conduct is engaging in —Vehicle means any motorized or by wildlife or domestic stock. fighting; addressing any offensive, mechanized device, not including • Dispose of any burning or derisive, or annoying communication bicycles or wheelchairs, that is smoldering material except at sites or to any other person who is lawfully propelled or pulled by any living or facilities provided for that purpose. present when such communication other energy source, and capable of • Violate the terms, stipulations, or has a direct tendency to cause acts of travel by any means over ground or conditions of any permit or use violence by the person to whom, water. authorization. • individually, the remark is addressed; —Weapon means a firearm, compressed Fail to show a permit or use or making statements or other actions gas or spring-powered pistol or rifle, authorization to any Bureau of Land directed toward inciting or producing Management employee upon request. bow and arrow, crossbow, blowgun, • imminent lawless action and likely to speargun, slingshot, irritant gas Camp or occupy, or build any fire incite or produce such action. device, explosive device, or any other on or in any historic or prehistoric —Historic or prehistoric structure or implement designed to discharge structure or ruin site. ruin site is any location that meets the missiles or projectiles; hand-thrown Vehicles standards for inclusion on the spear, edged weapon, nun-chucks, • Operate an off-road vehicle without National Register of Historic Places as clubs, billy-clubs, and any device defined in 36 CFR 60.4, without full-time use of an approved spark modified for use or designed for use arrester and muffler. regard to whether the site has been as a striking instrument; to include • Operate, park or leave a motorized nominated or accepted. any weapon the possession of which vehicle in violation of posted —Occupancy means the taking or is prohibited under New Mexico law. restrictions or in such a manner or holding possession of a campsite or location as to: residence on public land. Supplementary Rules—All Public —Pet means a dog, cat or any animal Lands 1. Create a safety hazard, 2. Interfere with other authorized users that has been domesticated. In addition to regulations contained —Public lands are any lands, interest in or uses, in 43 CFR 8365.1, the following 3. Obstruct or impede normal or lands, or related waters owned by the supplementary rules apply to all public United States and administered by the emergency traffic movement, lands in the Albuquerque District, 4. Interfere with or impede BLM. Related waters are those that lie including those lands acquired or administrative activities, directly over or adjacent to public conveyed to the BLM, and related 5. Interfere with the parking of other lands and that require some waters. Unless authorized by written vehicles, management control to protect permission, no person shall: 6. Park more than 300 feet from an federally administered resources or to Sanitation existing or designated route, subject to provide for enhanced visitor safety any superseding requirements for • and other recreation experiences. Construct or maintain any pit toilet such use along designated or existing —Public nudity means appearing nude facility, other than shallow holes or routes, or on public lands when such activity is trench toilets developed for use by • Operate a vehicle in violation of within view of unaffiliated persons. backcountry visitors for stays lasting 14 state motor vehicle laws or regulations. Nudity is defined as the failure to days or less. All holes, trenches or pits cover the rectal area, pubic area, or must be a minimum of 100 feet from any Public Health and Safety genitals. A female is also nude if she permanent water source. • Possess or use fireworks. fails to cover at least the areola • Dump or dispose of sewage or • Sell or make a gift of an alcoholic portions of both breasts. Each such sewage treatment chemicals from self- beverage to a person under 21 years of covering must be fully opaque. No contained or containerized toilets age. person under the age of 10 years shall except at facilities provided for that • Possess an alcoholic beverage if be considered publicly nude. purpose. under 21 years of age. —Reasonable quantities for pin˜ on nuts • Ignite or burn any material Occupancy and Use are 25 pounds per year; for seeds are containing or producing toxic or 1 cubic foot per year per species; for • Camp or occupy any site on public hazardous material. other edible plants or plant parts lands for a period longer than 14 days • Carry concealed weapons in mean personal consumption on site; within any period of 28 consecutive violation of state law. for woody material are only enough to days. Exceptions, which will be posted, • Discharge a firearm or any other burn in authorized campfires; for include areas closed to camping and implement capable of taking human life, plant materials (or plant parts) are 1 areas or sites with other designated causing injury, or damaging property: Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39415 1. In or within 150 yards of a unless extended by the authorized Diversion Dam (T. 23 N., R. 9 E., sec. dwelling, building, campsite or officer. After the 7th day, campers must 34). All sites not designated for such use occupied area, or move to a public land site at least 25 are closed to boat launching/takeout. 2. On, from or across a developed miles from the previous location and Vehicles road; from within a fenced right-of-way; must not return to the previous location within 40 feet of a road if no fence for 30 days or longer. • Use a motorized craft, including exists; across a body of water adjacent • Park more than 2 motorized inboard or outboard motors, jet skis or thereto; or in any manner or place vehicles at any approved site and/or hovercraft on the Rio Grande Wild and whereby any person or property is cause that site to be occupied by more Scenic River, and the Lower Gorge exposed to injury or damage as a result than 15 individuals, unless the site is Special Recreation Management area of such discharge. posted otherwise or designated for between the County Line Recreation • Conduct themselves in a disorderly group use. (Groups exceeding these Site and the Velarde Diversion Dam; fashion. limits may occupy additional sites and/ and on the Rio Chama Wild and Scenic • Fail to prevent a pet from harassing, or additional designated parking areas.) River. molesting, injuring, or killing humans, • Camp or occupy, between 10:00 pm • Operate non-street-legal motorized domesticated animals, wildlife or and 6:00 am, the Black Rock Spring, vehicles within the boundaries of all livestock. County Line, John Dunn Bridge, Lover’s recreation areas or sites. • Fail to comply with all applicable Lane, Manby Spring, Quartzite, La • Operate motor vehicles within the State of New Mexico regulations for Ventana Natural Arch, Tent Rocks, Ignacio Chavez Grant or Elk Springs boating safety, equipment, and Bluewater Canyon, Can˜ on Tapia, during seasonal closures. registration. Guadalupe Ruin and Community, and • Operate motor vehicles within the • Enter a cave without each person Ward Ranch Recreation Areas/Sites; San Ysidro Trials Limited Area except wearing a safety helmet (hard hat) with Wild Rivers Recreation Area’s Bear as authorized by special use permit. chin strap and carrying at least three Crossing and Chawalauna Overlooks; or • Park a vehicle other than in areas sources of light. Orilla Verde Recreation Area’s Gauging established for such use; or further than Property and Resources Station picnic site. 25 feet from designated roads, subject to • Engage in non-commercial • any superseding requirements of such Cut, remove or transport woody floatboating without the following items use along wilderness area boundaries, or materials including (but not limited to): in each group, unless otherwise to restrictions that may be in place along 1. Any type or variety of vegetation, indicated by permit or registration designated roads. 2. Fuelwood or firewood (either green requirements: or standing deadwood), and 1. A first-aid kit, Property and Resources 3. Live plants, 2. An approved U.S. Coast Guard • Cut or gather green trees or their except as authorized by 43 CFR 8365.1– Type I, III or V life preserver for each parts, or remove down or standing dead 5 (b) and (c) (which allow the collection individual (which must be worn at all wood for any purpose, including use in of commonly available renewable times while on the rivers), campfires. resources such as flowers, berries, nuts, 3. An extra life preserver for each • Climb or walk on the ‘‘tent rock’’ seeds, cones and leaves; and the boating party, excluding kayaks and formations in the Tent Rocks Recreation collection of forest products for use in canoes, Area. campfires on the public lands). 4. A bailing bucket of at least 2-gallon • Participate in technical rock • Remove or transport any mineral capacity aboard each non-self-bailing climbing within the La Ventana Natural resources, including, but not limited to, watercraft, excluding kayaks and Arch area. rock, sand, gravel, other mineral canoes, • materials, or decorative landscaping 5. A length of rope at least equal to Use mechanized equipment or materials on or from public lands the length of the boat, create bank disturbance in association without written consent, proof of 6. A throw line of at least 60 feet for with recreational gold panning. Panning purchase, or a valid permit. each boat, excluding kayaks, with hand tools below the water line is • Annoy or disturb bats, raptors, 7. Patching and repair equipment, allowed. reptiles or other protected species, 8. An air pump for inflatable Public Health, Safety and Comfort including nesting sites or areas. watercraft, and • 9. An extra oar or pair of paddles for Fail to immediately remove and Supplementary Rules—Developed each oar- or paddle- powered watercraft, dispose of in a sanitary manner, all pet Recreation Sites/Areas, Special excluding kayaks. fecal material, trash, garbage or waste Recreation Management Areas • Engage in noncommercial created. In addition to the regulations floatboating within the boundaries of • Bring a pet on any nature or contained in 43 CFR 8365.1, 8365.2 and the Rio Grande Wild and Scenic River interpretive trails, caves, and freshwater those listed above, the following rules without completing a BLM boating springs that are signed as prohibited to will be applied in accordance with 43 registration form for each day, or for pets. Animals trained to assist CFR 8365.2. Unless authorized by each trip if a multi-day trip. handicapped persons are exempt from written permit, no person shall: • Build, tend, or use a campfire this rule. except in a stove, grill, fireplace or ring • Fail to maintain quiet between the Occupancy and Use provided for such purpose in developed hours of 10:00 p.m. to 6:00 a.m., or other • Reserve camping space, except at recreations areas or sites. hours as posted. During this period no group facilities. Camping space is • Ride a horse or a bicycle in areas or person shall create noise that disturbs available on a first-come, first-served on trails posted as closed to such use. other visitors. basis. • Launch or take out boats at sites not • Post or distribute any signs, posters, • Camp at one area or site within a designated for such use on the Rio printed material or commercial developed campground for longer than Grande between John Dunn Bridge advertisements without written 7 days in any 28-consecutive-day period Recreation Site and the Velarde approval by the authorized officer. 39416 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices • Use, display or carry weapons a. Quartzite Recreation Site T. 24 N., R. 11 currently under BLM administration, within developed campsites or picnic E., sec. 32 and those lands acquired for inclusion areas. b. County Line Recreation Site T. 23 N., R. within the administrative jurisdiction of • Bring equine stock, llamas, cattle or 11 E., secs. 14, 15 the district as provided for in 43 CFR other livestock within campgrounds or c. Lover’s Lane Recreation Site T. 23 N., R. 10 E., sec. 20 8365.1–6. These supplementary rules picnic areas unless facilities have been 2. Orilla Verde Recreation Area apply to all persons using public lands. specifically provided for such use. Violations of these rules are punishable • T. 24 N., R. 11 E., secs. 2, 10, 11, 14–16, Discharge firearms or other 20–22, 28, 29 by a fine not to exceed $1,000 and/or weapons, or hunt and trap within a 3a. Rio Chama Wild and Scenic River imprisonment not to exceed 12 months. developed recreation area or within 150 T. 24 N., R. 2 E., sec. 1; T. 24 N., R. 3 E., Exceptions to these proposed yards of a developed recreation site. secs. 5, 6, 8–10, 13–15; T. 25 N., R. 2 E., supplementary rules may be permitted • Be publicly nude at Wild Rivers, secs. 2, 3, 11, 13, 14, 23, 24, 25, 36; T. by the authorized officer, subject to the Orilla Verde or Santa Cruz Lake 25 N., R. 3 E., sec. 31; T. 26 N., R. 2 E., limits and restrictions of controlling Recreation Areas; Lower Gorge Special secs. 3, 4, 9, 10, 15, 16, 21, 22, 26, 27, federal and state law. Persons granted Recreation Management Area; or John 34; T. 27 N., R. 2 E., secs. 9, 10, 15, 16, 21, 22, 27, 28, 33, 34 use exemptions must possess written Dunn Bridge Recreation Site. authorization from the BLM office • 3b. Ward Ranch Recreation Site Shower or bathe at any improved or T. 27 N., R. 2 E., sec. 27 having jurisdiction over the area. Users developed water source, outdoor 4. Rio Grande Wild and Scenic River must further comply with the zoning, hydrant pump, faucet, or fountain, or T. 23 N., R. 10 E., secs. 1, 11–16, 22; T. 23 permitting, rules or regulatory restroom water faucet, unless such N., R. 11 E., secs. 5–7; T. 24 N., R. 11 requirements of other agencies, where water source is designated for that E., secs. 2, 10, 11, 15, 16, 20, 21, 28, 29, applicable. purpose. 31–33; T. 25 N., R. 11 E., secs. 1, 12, 13, 23–26, 35, 36; T. 26 N., R. 11 E., secs. Dated: July 17, 1995. List of Developed Recreation Sites/ 1, 12–14, 23–26, 35, 36; T. 27 N., R. 11 Gilbert J. Lucero, Areas and Special Recreation E., sec. 36; T. 27 N., R. 12 E., secs. 5, 7, Associate State Director, New Mexico. Management Areas In 8, 17–19, 30, 31; T. 28 N., R. 12 E., secs. [FR Doc. 95–18945 Filed 8–1–95; 8:45 am] 5–10, 16–20, 29–30; T. 29 N., R. 12 E., Rio Puerco Resource Area secs. 4, 5, 8, 9, 16, 17, 20, 29–32; T. 30 BILLING CODE 4310±FB±P 1. Tent Rocks N., R. 12 E., secs. 6, 7, 17–20, 29, 30, 32; T. 16 N., R. 5 E., secs. 3, 4, 5 T. 31 N., R. 11 E., secs. 1, 2, 11, 14, 23– T. 17 N., R. 5 E., secs. 27–31 26; T. 31 N., R. 12 E., secs. 30, 31; and Fish and Wildlife Service 2. El Malpais National Conservation Area T. 32 N., R. 11 E., secs. 24, 25, 36. a. La Ventana Natural Arch Special a. John Dunn Bridge Recreation Site T. 27 Notice of Receipt of Applications for Management Area N., R. 12 E., sec. 31 Permit T. 8 N., R. 10 W., secs. 33, 34 b. Manby Spring Recreation Site T. 26 N., T. 7 N., R. 10 W., secs. 3, 4 R. 11 E., sec. 12 The following applicants have b. South Narrows Recreation Area c. Black Rock Spring Recreation Site T. 26 applied for a permit to conduct certain T. 7 N., R. 10 W., sec. 17 N., R. 11 E., sec. 1 activities with endangered species. This c. El Malpais Ranger Station 5. Santa Cruz Lake Recreation Area notice is provided pursuant to Section T. 9 N., R. 9 W., sec. 32 T. 20 N., R. 10 E., secs. 7, 18 3. Elk Springs 10(c) of the Endangered Species Act of 6. Wild Rivers Recreation Area T. 18 N., R. 1 W., secs. 1–4 1973, as amended (16 U.S.C. 1531, et T. 29 N., R. 12 E., secs. 16, 17, 20, 29, 31, T. 19 N., R. 1 W., secs. 10, 11, 14, 15, 21– seq.): 32 23, 26–29, 33–35 PRT–805140 4. Pronoun Cave Complex T. 28 N., R. 12 E., secs. 4, 5, 6, 8, 9, 16, Applicant: Vincent dePaul Kelly, Alexandria, T. 6 N., R. 5 W., secs. 10, 14 17 VA 5. Guadalupe Ruin and Community DATES: Comments on the proposed rules T. 15 N., R. 3 W., secs. 14, 15, 22, 23 will be accepted until September 1, The applicant has requested a permit 6. Can˜ on Tapia (applies only to lands within 1995. Comments received or to import the sport-hunted trophy of one the canyon) postmarked after the above date may not male bontebok (Damaliscus pygargus T. 15 N., R. 3 W., sec. 20, 21, 22, 29, 31 dorcas) from the captive herd 7. Ignacio Chavez Grant be considered in the decision-making T. 15 N., R. 3 W. process on the final rulemaking. maintained by Contour, National Nature T. 15 N., R. 4 W. ADDRESSES: Comments should be sent Conservation and Tourism Board, South T. 15 N., R. 5 W. to: District Manager (014), BLM, 435 Africa, for the purpose of enhancement T. 15 N., R. 6 W. Montan˜ o NE, Albuquerque, New Mexico of the species. T. 16 N., R. 4 W., secs. 19, 20, 21, 22, 27, PRT–805134 28, 29, 30 87107. All written comments made T. 16 N., R. 5 W., secs. 20, 21, 22, 23, 24, pursuant to this action will be made Applicant: Kimberly Whitman, Villanova 25, 26, 27, 28, 29, 30 available for public inspection during Univ., Villanova, PA T. 16 N., R. 6 W. normal business hours (7:45 a.m. to 4:15 The applicant requests a permit to 8. San Ysidro Trials Area p.m., MDT) at the above address. import up to 30 - 1ml blood samples T. 15 N., R. 1 E., secs. 3, 4, 9, 10 FOR FURTHER INFORMATION CONTACT: John T. 16 N., R. 1 E. collected in the wild from Rodrigues 9. Bluewater Canyon Bristol, Outdoor Recreation Planner, fruit bats (Pteropus rodricensis) on a. Canyon Entrance BLM, Albuquerque District Office, 435 Rodrigues Island, Mascarene Islands, T. 12 N., R. 11 W., sec. 5 Montan˜ o NE, Albuquerque, New Mexico Mauritius, for the purpose of scientific b. Lands Within Canyon 87107, Telephone: (505) 761–8755. research to determine genetic diversity. T. 12 N., R. 11 W., secs. 5, 6 SUPPLEMENTARY INFORMATION: The New Written data or comments should be Taos Resource Area Mexico State Director is establishing submitted to the Director, U.S. Fish and 1. Lower Gorge Special Recreation these supplementary rules for the Wildlife Service, Office of Management Management Area Albuquerque District. Authority, 4401 North Fairfax Drive, T. 26 N., R. 11 E., sec. 31, river section to They are necessary to protect persons, Room 420(c), Arlington, Virginia 22203 T. 23 N., R. 9 E., sec. 34, including: property and public lands and resources and must be received by the Director Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39417 within 30 days of the date of this ADDRESSES: Persons wishing to review prohibition if the taking is incidental to, publication. the application, HCP, and EA may and not the purpose of otherwise lawful Documents and other information obtain a copy by writing the Service’s activities. submitted with these applications are Southeast Regional Office, Atlanta, Gopher tortoise surveys conducted by available for review, subject to the Georgia. Requests must be in writing to the Applicant have identified at least requirements of the Privacy Act and be processed. Documents will also be one tortoise and six other burrows in the Freedom of Information Act, by any available for public inspection by landfill operations area. Two of these party who submits a written request for appointment during normal business burrows exhibited signs of recent a copy of such documents to the hours at the Regional Office, or the gopher tortoise use within the past year. following office within 30 days of the Jackson, Mississippi, Field Office. This area will consist of four waste date of publication of this notice: U.S. Written data or comments concerning disposal cells and sites for the Fish and Wildlife Service, Office of the application, EA, or HCP should be excavation and stocking of soil to be Management Authority, 4401 North submitted to the Regional Office. Please used to cover solid wastes. Tortoises Fairfax Drive, Room 420(c), Arlington, reference permit under PRT–804406 in within the area would be expected to be Virginia 22203. Phone: (703/358–2104); such comments. taken as an incidental consequence of FAX: (703/358–2281). Regional Permit Coordinator, U.S. landfill construction and operation. Heavy equipment operations can Dated: July 28, 1995. Fish and Wildlife Service, 1875 Century Boulevard, Suite 200, Atlanta, Georgia directly kill or injure tortoises as a result Mary Ellen Amtower, 30345, (telephone 404/679–7110, fax of their becoming crushed or entombed Acting Chief, Branch of Permits, Office of 404/679–7280). in burrows. The HCP describes Management Authority. Field Supervisor, U.S. Fish and measures the Applicant will take to [FR Doc. 95–18995 Filed 8–1–95; 8:45 am] Wildlife Service, 6578 Dogwood View avoid and mitigate such taking. Prior to BILLING CODE 4310±55±P Parkway, Jackson, Mississippi 39213, landfill construction, the Applicant will (telephone 601/965–4900, fax 601/965– survey the operations area to identify, 4340). trap, and relocate gopher tortoises to an Availability of an Environmental adjacent site designated as a permanent Assessment and Receipt of an FOR FURTHER INFORMATION CONTACT: Will MacDearman at the Jackson, Mississippi gopher tortoise habitat conservation Application for an Incidental Take area. The conservation area, owned by Permit for a Timber Harvest Operation Field Office, or Rick G. Gooch at the Atlanta, Georgia Regional Office. the Applicant, consists predominately by Pine Belt Regional Solid Waste of suitable habitat, a longleaf pine/ Management Authority in Perry SUPPLEMENTARY INFORMATION: The blackjack oak upland, that is partially County, Mississippi gopher tortoise, Gopherus polyphemus, occupied by other gopher tortoises. The is listed as a threatened species in the Applicant will manage the conservation AGENCY: Fish and Wildlife, Interior. western part of its range, from the area using a program of prescribed fire ACTION: Notice. Tombigbee and Mobile Rivers in and tree thinning to maintain and Alabama west to southeastern improve habitat conditions for the SUMMARY: Pine Belt Regional Solid Louisiana. As a native burrowing gopher tortoise. Without such active Waste Management Authority species of the fire-maintained longleaf (Applicant) is seeking an incidental take management, particularly the use of pine ecosystem, typical gopher tortoise prescribed fire, gopher tortoise habitat permit from the Fish and Wildlife habitat consists of frequently burned would deteriorate as a natural Service (Service), pursuant to Section longleaf pine or longleaf pine/scrub oak consequence of ecological succession. 10(a)(1)(B) of the Endangered Species uplands on moderately well-drained to Also, a temporary conservation area Act (Act), as amended. The permit xeric soils. About 80 percent of the will be managed using the same would authorize the take of the gopher original habitat for gopher tortoises has methods as in the permanent tortoise (Gopherus polyphemus), a been lost due to urbanization and conservation area. About one-half of the threatened species, in Perry County, agriculture. Certain forest management temporary area contains solid waste Mississippi for a period of 20 years. The practices in remaining upland pine cells that are forecast to be used about proposed taking is incidental to the habitats have also adversely affected the 20 years from now. No tortoises construction and operation of a solid gopher tortoise. Silvicultural systems currently occupy this portion, though waste landfill within a 340-acre tract using intensive site preparation, dense habitat is suitable. The remaining located approximately 2 miles north of plantations and stands of loblolly pine portion of the temporary area, which is Runnelstown in Sections 8 and 9, or slash pine, and infrequent fire have occupied by tortoises, may be used Township 5 North, Range 11 West. The reduced or eliminated the open forest within 5–10 years to provide soil for Service also announces the availability and sunny forest floor of grasses and waste overfill. Tortoises in this of an environmental assessment (EA) forbs where gopher tortoises burrow, remaining portion will be relocated to and habitat conservation plan (HCP) for nest, and feed. Though gopher tortoises the permanent conservation area prior the incidental take application. The are widely distributed in south to landfill operations. Service prepared the EA and the HCP Mississippi, most populations are The EA considers the environmental was developed by the Applicant. Copies fragmented, small in size, and consequences of two alternatives; issue of the EA and HCP may be obtained by functionally non-viable. the requested permit as conditioned by making a request to the Regional Office Section 9 of the Act, and the HCP, or take no action (deny address below. This notice is provided implementing regulations, prohibits permit). The Service has made a pursuant to Section 10(c) of the Act and taking the gopher tortoise. Taking, in preliminary determination that the National Environmental Policy Act part, is defined as an activity that kills, Applicant has satisfactorily complied Regulations (40 CFR 1506.6). injures, harms, or harasses a listed with the statutory and regulatory criteria DATES: Written comments on the permit endangered or threatened species. for permit issuance. The Service’s application, EA, and HCP should be Section 10(a)(1)(B) of the Act provides proposed alternative is to issue the received on or before September 1, an exemption, under certain requested incidental take permit. The 1995. circumstances, to the Section 9 principal environmental consequence of 39418 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices permit issuance, in the Service’s information contained in the EA and depends on the quantity and quality of assessment, is to the gopher tortoise. HCP. The final determination will be the pine stems available. Permits authorizing the disposal and made no sooner than 30 days from the The RCW is endemic to the pine management of solid wastes at the date of this notice. This notice is forests of the Southeastern United States landfill are otherwise administered provided pursuant to Section 10(c) of and was once widely distributed across according to Federal and State statutory/ the Act and National Environmental 16 States. The species evolved in a regulatory standards by the Policy Act Regulations (40 CFR 1506.6). mature, fire-maintained, ecosystem. The Environmental Protection Agency, the DATES: Written comments on the permit RCW has declined primarily due to the Mississippi Department of application, EA and HCP should be sent conversion of mature pine forests to Environmental Quality, and the to the Regional Permit Coordinator in young pine plantations, agricultural Mississippi Permit Board. Atlanta, Georgia, at the address below fields, residential and commercial Dated: July 26, 1995. and should be received on or before developments, and to hardwood encroachment in existing pine forests Garland B. Pardue, September 1, 1995. due to fire suppression. The species is Acting Regional Director. ADDRESSES: Persons wishing to review still widely distributed (presently [FR Doc. 95–18980 Filed 8–1–95; 8:45 am] the application, HCP, or EA may obtain occurs in 13 southeastern States), but BILLING CODE 4310±55±M a copy by writing the Service’s remaining populations are highly Southeast Regional Office, Atlanta, fragmented and isolated. Presently, the Georgia. Documents will also be largest populations occur on federally Availability of an Environmental available for public inspection by owned lands such as military Assessment and Receipt of an appointment during normal business installations and national forests. Application Submitted by Jack Primus hours at the Regional Office; or the In South Carolina there are an Partners, L.P. for an Incidental Take Asheville, North Carolina, Field Office. estimated 681 active RCW clusters as of Permit for Red-cockaded Woodpeckers Written data or comments concerning 1994; 67 percent are on Federal lands, in Association With the Sale and the application, EA, or HCP should be 6 percent are on State lands, and 27 Development of a Property in Berkeley submitted to the Regional Office. Please percent are on private lands. The County, South Carolina reference permit number PRT–804465 populations on public lands are AGENCY: Fish and Wildlife, Interior. in such comments. generally stable, and in some cases are ACTION: Notice. Regional Permit Coordinator, U.S. Fish increasing. The overall population trend and Wildlife Service, 1875 Century on private lands in South Carolina, on SUMMARY: Jack Primus Partners, L.P. Boulevard, Suite 200, Atlanta, Georgia the other hand, is downward. Most (Applicant) has applied to the Fish and 30345, (telephone 404/679–7110, fax RCW populations on private lands are Wildlife Service for an incidental take 404/679–7280). relatively small and isolated. permit pursuant to Section 10(a)(1)(B) of Field Supervisor, U.S. Fish and Wildlife The Applicant’s land in Berkeley the Endangered Species Act of 1973, as Service, 160 Zillicoa Street, Asheville, County hosts a small and isolated amended (Act). The proposed permit North Carolina 28801, (telephone 704/ population of RCWs. As of 1993, there would authorize for a period of 99 years 258–3939). were two active RCW clusters; one the incidental take of a federally breeding group and one solitary adult FOR FURTHER INFORMATION CONTACT: Ms. endangered species, the red-cockaded male. The nearest known RCW groups Janice Nicholls at the Asheville, North woodpecker Picoides borealis (RCW) occur on private lands approximately 1 Carolina, Field Office, or Mr. Rick G. known to occur on a property owned by to 2 miles to the north of the Jack Gooch at the Atlanta, Georgia, Regional the Applicant in Berkeley County, Primus Tract. The nearest known South Carolina. The Applicant proposes Office. population occurs several miles away to sell the 996-acre property located on SUPPLEMENTARY INFORMATION: The red- on the Francis Marion National Forest to the Cainhoy Peninsula, 5 miles cockaded woodpecker is a territorial, the northeast, and on the privately northeast of North Charleston, for non-migratory cooperative breeding bird owned Medway Plantation located development purposes. The proposed species. RCWs live in social units called opposite the Cooper River from the Jack permit would authorize incidental take groups which generally consist of a Primus Tract. The Applicant proposes of RCWs on this property in exchange breeding pair, the current year’s to sell the Jack Primus Tract for for mitigation elsewhere as described offspring, and one or more helpers development. Development of the tract further in the Supplementary (normally adult male offspring of the may result in death of, or harm to, any Information Section below. breeding pair from previous years). remaining RCWs through the loss of The Service also announces the Groups maintain year-round territories nesting and foraging habitat. availability of an environmental near their roost and nest trees. The RCW The EA considers the environmental assessment (EA) and habitat is unique among North American consequences of three alternatives, conservation plan (HCP) for the woodpeckers in that it is the only including the proposed action. The incidental take application. Copies of woodpecker that excavates its roost and proposed action alternative is issuance the EA or HCP may be obtained by nest cavities in living pine trees. Each of the incidental take permit and making a request to the Regional Office group member has its own cavity, implementation of the HCP as submitted address below. This notice also advises although there may be multiple cavities by the Applicant. The HCP will provide the public that the Service has made a in a single pine tree. The aggregate of for the provisioning of six clusters with preliminary determination that issuing cavity trees used by a breeding group is artificial starts and cavities on suitable the incidental take permit is not a major called a cluster. RCWs forage almost habitat on the Medway Plantation. The Federal action significantly affecting the exclusively on pine trees and they Medway Plantation is under a long-term quality of the human environment generally prefer pines greater than 10 conservation easement with the primary within the meaning of Section 102(2)(C) inches diameter at breast height. objective of perpetuating and conserving of the National Environmental Policy Foraging habitat is contiguous with the the natural values of the property, Act of 1969, as amended. The Finding cluster. The number of acres required to which includes managing a portion of of No Significant Impact is based on supply adequate foraging habitat the property to perpetuate a mature Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39419 longleaf pine ecosystem. The HCP will environmental impact statement. Verbal legal aspects, from William Gearhart, also involve the implementation of a and written comments on the plan/EIS Office of the General Counsel (202–205– population monitoring program for a will be accepted at the meeting or by 3091). The media should contact specified time period at Medway mail until October 1, 1995. Margaret O’Laughlin, Office of Public Plantation to determine success of the ADDRESSES: Shenandoah National Park, Affairs (202–205–1819). Hearing provisioning efforts. The HCP provides Route 4, Box 348, Luray, Virginia 22835. impaired individuals are advised that a funding source for these mitigation FOR FURTHER INFORMATION CONTACT: information on this matter can be measures. Assistant Superintendent, Vaughn obtained by contacting the TDD Dated: July 26, 1995. Baker, Shenandoah National Park, Route terminal (202–205–1810). Garland B. Pardue, 4, Box 348, Luray, Virginia 22835. BACKGROUND: Chapter 4 and Annex 401 Acting Regional Director. Telephone (703) 999–3400. of the North American Free Trade [FR Doc. 95–18985 Filed 8–1–95; 8:45 am] SUPPLEMENTARY INFORMATION: A range of Agreement (NAFTA), which entered BILLING CODE 4310±55±P issues and preliminary alternatives for into force on January 1, 1994, contain the Facility Development Plan were the rules of origin for application of the developed and analyzed. Preliminary tariff provisions of the NAFTA to trade National Park Service alternatives for consideration include in goods. the no action alternative; development Section 202(q) of the North American Draft Facility Development Plan of facilities and housing in accordance Free Trade Agreement Implementation Shenandoah National Park, Virginia; with the park’s General Management Act (the Act) authorizes the President, Availability of Draft Plan and Plan; moving all housing and subject to the consultation and layover Environmental Impact Statement development out of the park; and requirements of section 103 of the Act, to proclaim such modifications to the ACTION: Notice of release. mixing the housing within the park, in a park community at headquarters, and rules as may from time to time be agreed SUMMARY: The National Park Service, through leases in adjacent towns. to by the NAFTA countries. One of the Shenandoah National Park, Virginia, has For copies of the Draft Facility requirements set out in section 103 of prepared a draft Facility Development Development Plan/Environmental the Act is that the President obtain Plan/Environmental Impact Statement Impact Statement for Shenandoah advice, regarding any proposed for the park. This plan provides the National Park please contact the modification in the Rules contained in analysis necessary to determine the Assistant Superintendent at the above Annex 401 of the Act, from the United needs for employee housing, office address. States International Trade Commission. spaces, maintenance areas, and In its report the Commission will, as Dated: July 20, 1995. emergency facilities for the park. In requested by the USTR in his letter accordance with section 102(2)(C) of the Chrysandra Walter, received on July 17, 1995, provide National Environmental Policy Act of Deputy Field Director, Northeast Field Area. advice on the probable effect of the 1969, the National Park Service is [FR Doc. 95–18884 Filed 8–1–95; 8:45 am] proposed modifications to the rules of required to prepare an environmental BILLING CODE 4310±70±M origin that are attached to the letter. As impact statement to assess the impacts requested, the Commission will provide of the proposed action. The National such advice by September 15, 1995. Park Service is the responsible federal INTERNATIONAL TRADE Copies of the proposed revised rules, agency. COMMISSION which cover certain goods described in Pursuant to Council on Chapters 1 through 97 of the [Investigation 332±364] Environmental Quality regulations and Harmonized Tariff Schedule of the National Park Service policy, the Certain Miscellaneous Products: United States, will be available from the National Park Service (NPS) announces Probable Effect of Certain Office of the Secretary at the the release of the Draft Facility Modifications to the North American Commission or from the Commission’s Development Plan/Environmental Free Trade Agreement Rules of Origin Internet server (http://www.usitc.gov or Impact Statement for Shenandoah ftp://ftp.usitc.gov). National Park, Virginia. AGENCY: International Trade In a previous request dated May 5, DATES: The Draft Facility Development Commission. 1995, the USTR requested the Plan/Environmental Impact Statement ACTION: Institution of investigation and Commission to provide advice on the will be on public review from August 1, scheduling of public hearing. probable effect of modifications to the 1995 to October 1, 1995. Three public NAFTA rules of origin pertaining to meetings will be held on: EFFECTIVE DATE: July 24, 1995. certain chemicals and chemical Tuesday, August 8, 1995, from 7 p.m. to SUMMARY: Following receipt on July 17, products. In response, the Commission 9 p.m. at the Page County Board of 1995, of a request from the United States instituted investigation No. 332–363, Supervisors Room, Department of Trade Representative (USTR), the Chemicals and Chemical Products: Social Services building, South Court Commission instituted investigation No. Probable Effect of Certain Modifications Street, Luray, VA. 332–364, Certain Miscellaneous to North American Free Trade Wednesday, August 9, 1995 from 7 p.m. Products: Probable Effect of Certain Agreement Rules of Origin Pertaining to to 9 p.m. at the Rappahannock County Modifications to the North American Such Products; the Commission’s report Library, U.S. Highway 211, Little Free Trade Agreement Rules of Origin, on that investigation will be provided to Washington, VA. under section 332(g) of the Tariff Act of the USTR by September 5, 1995. Thursday, August 10, 1995 from 7 p.m. 1930 (19 U.S.C. 1332(g)). PUBLIC HEARING: A public hearing in to 9 p.m. at the Rockingham County FOR FURTHER INFORMATION CONTACT: connection with the investigation will Administration Center, 20 East Gay Information may be obtained from be held at the U.S. International Trade Street, Harrisonburg, VA. David Lundy, Office of Industries (202– Commission Building, 500 E Street SW., The purpose of these meetings is to 205–3439) or Donita Marakovits, Office Washington, DC, beginning at 9:30 a.m. discuss the draft plan and its of Industries (202–205–3430); and on on August 16, 1995. All persons shall 39420 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices have the right to appear, by counsel or INTERSTATE COMMERCE JUDICIAL CONFERENCE OF THE in person, to present information and to COMMISSION UNITED STATES be heard. Requests to appear at the Meeting of the Judicial Conference public hearing should be filed with the [Finance Docket No. 32740] Secretary, United States International Advisory Committee on Rules of Trade Commission, 500 E Street SW., Burlington Northern Railroad Appellate Procedure Washington, DC 20436, no later than CompanyÐTrackage Rights AGENCY: Judicial Conference of the 5:15 p.m. on August 7, 1995. Any ExemptionÐUnion Pacific Railroad United States; Advisory Committee on prehearing briefs (original and 14 Company copies) should be filed not later than Rules of Appellate Procedures. 5:15 p.m., August 9, 1995; the deadline The Union Pacific Railroad Company ACTION: Notice of open meeting. for filing post-hearing briefs or (UP) has agreed to grant approximately statements is 5:15 p.m., August 21, 7.9 miles of local trackage rights to SUMMARY: The Advisory Committee on 1995. In the event that, as of the close Burlington Northern Railroad Company Rules of Appellate Procedure will hold of business on August 7, 1995, no (BN).1 The trackage rights extend from a three-day meeting. The meeting will witnesses are scheduled to appear at the milepost 0.0 at East Olympia to milepost be open to public observation but not hearing, the hearing will be canceled. 7.24 at Olympia, WA, together with the participation and will start each day at Any person interested in attending the following connections: approximately 8:30 a.m. hearing as an observer or non- 1,428 feet of the east leg of the wye track DATES: October 19–21, 1995. participant may call the Secretary to the at East Olympia; former Track No. 8 Commission (202–205–2000) after extension of branch trackage between ADDRESSES: Thurgood Marshall Federal August 7, 1995, to determine whether milepost 7.24 and milepost 7.29; Track Judiciary Building, Judicial Conference the hearing will be held. No. 29 between milepost 6.93 and Center, One Columbus Circle, NE., WRITTEN SUBMISSIONS: In lieu of or in milepost 7.22; and between the point of Washington, DC. addition to participating in the hearing, switch in Track No. 29, opposite branch FOR FURTHER INFORMATION CONTACT: John interested parties are invited to submit track at milepost 7.15, and milepost K. Rabiej, Chief, Rules Committee written statements (original and 14 7.20. The trackage rights were to become Support Office, Administrative Office of copies) concerning the matters to be effective on July 31, 1995.2 the United States Courts, Washington, addressed by the Commission in its This notice is filed under 49 CFR DC 20544, telephone (202) 273–1820. report on this investigation. Commercial 1180.2(d)(7). If the notice contains false Dated: July 26, 1995. or financial information that a submitter or misleading information, the John K. Rabiej, desires the Commission to treat as exemption is void ab initio. Petitions to Chief, Rules Committee Support Office. confidential must be submitted on revoke the exemption under 49 U.S.C. separate sheets of paper, each clearly 10505(d) may be filed at any time. The [FR Doc. 95–18971 Filed 8–1–95; 8:45 am] marked ‘‘Confidential Business filing of a petition to revoke will not BILLING CODE 2210±01±M Information’’ at the top. All submissions stay the transaction. Pleadings must be requesting confidential treatment must filed with the Commission and served Meeting of the Judicial Conference conform with the requirements of on: Michael E. Roper, Burlington section § 201.6 of the Commission’s Advisory Committee on Rules of Northern Railroad Company, 3800 Bankruptcy Procedure Rules of Practice and Procedure (19 CFR Continental Plaza, 777 Main Street, Fort 201.6). All written submissions, except Worth, TX 76102–5384. AGENCY: Judical Conference of the for confidential business information, As a condition to the use of this United States; Advisory Committee on will be made available in the Office of exemption, any employees adversely Rules of Bankruptcy Procedure. the Secretary of the Commission for affected by the trackage rights will be inspection by interested parties. To be ACTION: Notice of open meeting. protected under Norfolk and Western assured of consideration by the Ry. Co.—Trackage Rights—BN, 354 Commission, written statements relating SUMMARY: The Advisory Committee on I.C.C. 605 (1978), as modified in to the Commission’s report should be Rules of Bankruptcy Procedure will Mendocino Coast Ry., Inc.—Lease and submitted to the Commission at the hold a two-day meeting. The meeting Operate, 360 I.C.C. 653 (1980). earliest practical date and should be will be open to public observation but received no later than the close of Decided: July 25, 1995. not participation and will be held each business on August 21, 1995. All By the Commission, David M. Konschnik, day from 8:30 to 4:00 p.m.. submissions should be addressed to the Director, Office of Proceedings. DATES: September 7–8, 1995. Secretary, United States International Vernon A. Williams, ADDRESSES: Portland Marriott Hotel, Trade Commission, 500 E Street SW., Secretary. Washington, DC 20436. 1401 S.W., Front Avenue, Portland, [FR Doc. 95–18969 Filed 8–1–95; 8:45 am] Persons with mobility impairments Oregon. BILLING CODE 7035±01±P who will need special assistance in FOR FURTHER INFORMATION CONTACT: John gaining access to the Commission K. Rabiej, Chief, Rules Committee should contact the Office of the 1 This trackage rights agreement expands on an earlier agreement where UP granted overhead Support Office, Administrative Office of Secretary at 202–205–2000. trackage rights to BN between these points as part the United States Courts, Washington, Issued: July 25, 1995. of a joint relocation project. Burlington Northern D.C. 20544, telephone (202) 273–1820. Railroad Company and Oregon-Washington By order of the Commission. Railroad & Navigation Company—Joint Project for Dated: July 26, 1995. Donna R. Koehnke, Relocation of a Line of Railroad, Finance Docket John K. Rabiej, Secretary. No. 30932 (ICC served Dec. 5, 1986). Chief, Rules Committee Support Office. 2 The effective date is calculated from July 24, [FR Doc. 95–18996 Filed 8–1–95; 8:45 am] 1995, the filing date for additional information [FR Doc. 95–18972 Filed 8–1–95; 8:45 am] BILLING CODE 7020±02±P necessary to clarify the transaction. BILLING CODE 2210±01±M Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39421 Meeting of the Judicial Conference DEPARTMENT OF JUSTICE NW., Washington, DC 20001 (telephone: Advisory Committee on Rules of Civil 202/307–6122). Procedure Antitrust Division Rebecca P. Dick, Deputy Director of Operations Antitrust AGENCY: Judicial Conference of the United States v. American Bar Division. United States; Advisory Committee on Association; Proposed Final Judgment and Competitive Impact Statement United States District Court for the Rules of Civil Procedure. District of Columbia ACTION: Notice of open meeting. Notice is hereby given pursuant to the United States of America, Plaintiff, v. Antitrust Procedures and Penalties Act, American Bar Association, Defendant. SUMMARY: The Advisory Committee on 15 U.S.C. §§ 16(b)–(h), that a proposed Stipulation Rules of Civil Procedure will hold a Final Judgment, Stipulation, and three-day meeting. The meeting will be Competitive Impact Statement have The undersigned parties, by their respective attorneys, stipulate that: open to public observation but not been filed with the United States 1. The Court has jurisdiction over the participation and will start each day at District Court for the District of subject matter of this action and over 8:30 a.m. Columbia in United States of America v. each of the parties hereto, and venue of DATE: November 9–11, 1995. American Bar Association, Civil Action this action is proper in the District of No. 95–1211. Columbia; ADDRESSES: University of Alabama The Complaint in this case alleges 2. The parties consent that a Final School of Law, Hayes Conference Room that the defendant conspired to violate Judgment in the form hereto attached 344, 101 Paul Bryant Drive, Tuscaloosa, Section 1 of the Sherman Act, 15 U.S.C. may be filed and entered by the Court, Alabama. § 1, allowing the law school upon the motion of any party or upon FOR FURTHER INFORMATION CONTACT: accreditation process to be captured by the Court’s own motion, at any time after compliance with the requirements John K. Rabiej, Chief, Rules Committee those with a direct interest in its outcome. Among other things, the ABA of the Antitrust Procedures and Support Office, Administrative Office of Penalties Act (15 U.S.C. § 16), and the United States Courts, Washington, adopted and enforced law school accreditation Standards, Interpretations, without further notice to any party or D.C. 20544, telephone (202) 273–1820. other proceedings, provided that and Rules that unreasonably raised plaintiff has not withdrawn its consent, Dated: July 26, 1995. salaries paid to law school faculty, which it may do at any time before the John K. Rabiej, deans, and other professional personnel. entry of the proposed Final Judgment by Chief, Rules of Committee Support Office. The proposed Final Judgment enjoins serving notice thereof on defendant and [FR Doc. 95–18973 Filed 8–1–95; 8:45 am] the defendant from adopting or by filing that notice with the Court; and BILLING CODE 2210±01±M enforcing any Standard, Interpretation, 3. Pending approval of the Final or Rule that conditions accreditation on Judgment by the Court, defendant agrees salaries and other benefits paid to law to be bound by the provisions of the Meeting of the Judicial Conference school professional personnel and from proposed Final Judgment and to be Advisory Committee on Rules of using compensation data in connection subject to the jurisdiction of this Court. Criminal Procedure with the accreditation of a law school. If plaintiff withdraws it consent, or if It also enjoins the defendant from the proposed Final Judgment is not AGENCY: Judicial Conference of the refusing to accredit proprietary law entered pursuant to the terms of the United States; Advisory Committee on schools and from prohibiting ABA– Stipulation, this Stipulation shall be of Rules of Criminal Procedure. accredited law schools from accepting no effect whatsoever, and the making of ACTION: Notice of open meeting. transfer credits from state-accredited this Stipulation shall be without prejudice to any party in this or in any law schools. proceeding. SUMMARY: The Advisory Committee on The proposed Final Judgment requires For Plaintiff United States: Rules of Criminal Procedure will hold a that the defendant establish a Anne K. Bingaman, two-day meeting. The meeting will be commission to review accreditation open to public observation but not Assistant Attorney General. standards regarding student/faculty Joel I. Klein, participation and will start each day at ratios, teaching loads, sabbaticals, and 8:30 a.m. Deputy Asst. Attorney General. bar preparation courses. It further Rebecca P. Dick, DATE: October 16–17, 1995. requires changes in the composition of Asst. Director of Operations. the defendant’s accrediting committees. John F. Greaney, ADDRESSES: The Equinox Hotel, Historic Chief, Computers & Finance Section. Route 7A, Manchester Village, Vermont. Public comment on the proposed Final Judgment is invited within the Scott N. Sacks, FOR FURTHER INFORMATION CONTACT: statutory 60-day comment period. The Asst. Chief, Computers & Finance Section. John K. Rabiej, Chief, Rules Committee comments and responses to them will Antitrust Division, U.S. Department of Justice, Support Office, Administrative Office of be published in the Federal Register D. Bruce Pearson, and filed with the Court. Comments the United States Courts, Washington, Molly L. Debusschere, should be directed to John F. Greaney, D.C. 20544, telephone (202) 273–1820. Jessica N. Cohen, Chief, Computers and Finance Section, Dated: July 26, 1995. James J. Tierney, Room 9903, U.S. Department of Justice, John K. Rabiej, Antitrust Division, 555 Fourth Street, Attorneys, U.S. Department of Justice, Chief, Rules Committee Support Office. Antitrust Division, 555 Fourth Street, NW., Room 9901, Washington, DC 20001, Tel: 202/ [FR Doc. 95–18974 Filed 8–1–95; 8:45 am] 307–0809, Fax: 202/616–5980. BILLING CODE 2210±01±M For Defendant American Bar Association: 39422 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Darryl L. DePriest, Approval of Law Schools and this Final Judgment, as are necessary to General Counsel. Interpretations and Rules of Procedure attract and retain a competent faculty; American Bar Association, 541 N. Fairbanks for Approval of Law Schools and (2) investigating or reporting on whether Court, Chicago, Illinois 60611, Tel: 312/988– Polices of the Council of the Section and a law school is in compliance with such 5215, Fax: 312/988–5217. its Accreditation Committee. Standards, Interpretations or Rules, or the cause of non-compliance; or (3) Certificate of Service III On June 27, 1995, I caused a copy of requiring that a law school take the foregoing Stipulation to be served by Applicability remedical action to comply with such facsimile and first-class mail upon: This Final Judgment shall apply to the Standards, Interpretations or Rules as a condition of obtaining or maintaining David T. Pritikin, Esquire Sidley & Austin, ABA and its governors, officers, One First National Plaza, Chicago, Illinois employees, and full-time consultants ABA approval. 60603. involved in law school accreditation. VI Jessica N. Cohen IV Additional Relief Final Judgment Prohibited Conduct The ABA shall: Plaintiff, United States of America, (A) require that all Interpretations and filed its Complaint on June 27, 1995. The ABA is enjoined and restrained from: Rules be subjected to the same public Plaintiff and defendant American Bar comment and review process and Association (‘‘ABA’’), by their attorneys, (A) adopting or enforcing any Standard, Interpretation or Rule, or approval procedures that apply to have consented to the entry of this Final proposed Standards; Judgment without trial or adjudication taking any action that has the purpose or effect of imposing requirements as to (B) permit appeals from Accreditation of any issue of fact or law. This Final Committee Action Letters to the Judgment shall not be evidence or the base salary, stipends, fringe benefits, or other compensation paid law school Council; admission by any party with respect to (C) revise the Council’s membership any issue of fact or law. Therefore, deans, associate deans, assistant deans, faculty, library directors, librarians, or as follows: before any testimony is taken, and (1) for a period of five years, all other law school employees, or in any without trial or adjudication of any elections shall be subject to Board way conditioning the accreditation of issue of fact or law, and upon consent approval; any law school on the compensation of the parties, it is hereby Ordered, (2) members shall serve staggered paid law school deans, associate deans, Adjudged And Decreed: three-year terms, with a two-term limit; assistant deans, faculty, library however, officers may serve as officers I directors, librarians, or other law school for an additional term beyond the six- employees; Jurisdiction year limit; and (B) collecting from or disseminating to (3) no more than 50% of the members This Court has jurisdiction of the any law school data concerning shall be law school deans or faculty; subject matter of this action and of the compensation paid or to be paid to (D) revise the Accreditation parties consenting to this Final deans, administrators, faculty, Committee’s membership as follows: Judgment. The Complaint states a claim librarians, or other employees; (1) for a period of five years, all upon which relief may be granted (C) using law school compensation appointments shall be subject to Board against the ABA under Section 1 of the data in connection with the approval; Sherman Act, 15 U.S.C. 1. accreditation or review of any law (2) all members shall serve staggered school; and II three-year terms, with a two-term limit; (D) adopting or enforcing any and Definitions Standard, Interpretation or Rule, or (3) no more than 50% of the members As used in this Final Judgment: taking any action that has the purpose shall be law school deans or faculty; (A) ‘‘ABA’’ means the American Bar or effect of prohibiting a law school (E) revise the Standards Review Association and all of its components. from: Committee’s membership as follows: (B) ‘‘Accreditation Committee’’ means (1) enrolling a member of the bar or (1) for a period of five years, all the Accreditation Committee of the graduate of a state-accredited law school appointments shall be subject to Board Section of Legal Education and in an LL.M. program or other post-J.D. approval; Admissions to the Bar of the ABA. program; (2) members shall serve one three-year (C) ‘‘Board’’ means the ABA Board of (2) offering transfer credits for any Governors. term; and course successfully completed at a state- (3) no more than 50% of the members (D) ‘‘Council’’ means the Council of accredited law school, except that the the Section of Legal Education and shall be law school deans or faculty; ABA may require that two-thirds of the (F) require that no more than 40% of Admissions to the Bar of the ABA. credits required for graduation must be (E) ‘‘Faculty’’ means all persons who the members of the Nominating successfully completed at an ABA- Committee for officers of the Section teach classes (except adjunct approved law school; or professors), including administrators shall be law school deans or faculty; (3) being an institution organized as a (G) require that each site evaluation who teach, emeritus of senior faculty, for-profit entity. visiting professors, joint-appointed team include, to the extent reasonably faculty, clinical instructors, and V feasible, at least: (1) one university administrator who instructors holding short-term Permitted Conduct appointments. is not a law school dean or faculty (F) ‘‘Section’’ means the ABA’s Nothing herein shall be construed to member; and Section of Legal Education and prohibit the ABA from: (1) adopting or (2) one practicing lawyer, judge or Admissions to the Bar. applying such other reasonable public member; (G) ‘‘Standards,’’ ‘‘Interpretations’’ Standards, Interpretations or Rules, (H) require the Accreditation and ‘‘Rules’’ mean the Standards for consistent with all other provisions of Committee after each meeting to send a Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39423 written report to the Council, that may Special Commission shall file its report (D) providing the United States, be done on a confidential basis if with the Board. Upon completing its during the term of the Final Judgment, necessary, identifying all actions taken review, the Board shall file its report a copy of all proposed changes to these by it, including a list identifying all law with the Court and the United States Standards, Interpretations and Rules schools on report or under review, and setting out its analysis and any before they are acted on by the House for each law school, identifying the proposed revisions; and of Delegates, and a copy of all areas of actual or apparent non- (C) allow the Untied States 90 days in Standards, Interpretations and Rules compliance and the length of time the which to review the Special adopted by the House; law school has been on report or under Commission’s report and determine (E) briefing annually the Section’s review; whether to challenge any of the Officers, all members of the Council, (I) require the Council to send an proposals. The United States may Committee and Standards Review annual report to the Board, that may be challenge any such proposal and, if the Committee, the Consultant and the done on a confidential basis if ABA chooses to defend it, the challenge Consultant’s staff, and all participants at necessary, on its accreditation activities will be decided by this Court applying site inspectors’ workshops on the during the preceding year, including a a Rule of Reason antitrust analysis. meaning and requirements of this Final list identifying all law schools on report VIII Judgment; or under review, and for each law (F) obtaining from all Section officers, school, identifying the areas of actual or Compliance Program all members of the Council, apparent non-compliance and the length The ABA is ordered to maintain an Accreditation committee and Standards of time the law school has been on antitrust compliance program which Review Committee, and the Consultant report or under review; shall include designating, within 30 and the Consultant’s staff an annual (J) require Council approval and days of the entry of this Final Judgment, written certification that they: (1) have Board receipt of annual and site an Antitrust Compliance Officer with read, understand, and agree to abide by inspection questionnaires before they responsibility for accomplishing the the terms of this Final Judgment; and (2) are sent to law schools; antitrust compliance program and with are not aware of any violation of this (K) publish annually in The ABA the purpose of achieving compliance Final Judgment that they have not Journal and the Section’s Review of with this Final Judgment. The Antitrust reported to the Antitrust Compliance Legal Education in the United States: Compliance Officer shall, on a Officer; and (1) all proposed Standards, continuing basis, supervise the review (G) obtaining from the Executive Interpretations, Rules, and Policies, and of the current and proposed activities of Director of The ABA, the Consultant the name(s) of the sponsors of each; and the ABA’s law school accrediting and the Consultant’s staff, an annual (2) the date, place, and names of the activities to ensure that they comply written certification that they have been evaluators for each law school and with this Final Judgment. The Antitrust advised and understand that their foreign program inspected; and Compliance Officer shall be responsible failure to comply with the Final (L) hire, by October 31, 1995, an for accomplishing the following Judgment may result in conviction for outside independent consultant who is activities: contempt of court. an expert on education and (A) reviewing the ABA’s Standards, IX accreditation and who is not a legal Interpretations, Rules, and practices, educator, to assist in validating all and identifying and recommending the Certification Standards and Interpretations, as elimination of any provisions or (A) Within 90 days after the entry of required by the Department of activities that violate or are inconsistent this Final Judgment, the ABA shall Education, and develop a plan for with Sections IV or VI above to the certify to the United States whether it validation by December 31, 1995. Board or to the ABA’s House of has designated an Antitrust Compliance Delegates within 90 days of entry of this VII Officer and has distributed the Final Final Judgment; Judgment in accordance with Section Special Commission (B) distributing a copy of this Final VIII above. Judgment within 30 days of entry to: The ABA shall: (B) For 10 years after the entry of this (1) all members of the Board and Final Judgment, on or before its (A) establish a Special Commission to officers of the ABA, the Section and the Review the Substance and Process of the anniversary date, the Antitrust Law Student Division; Compliance Officer shall certify ABA’s Accreditation of American Law (2) all members of the Council, annually to the Court and the United Schools to determine whether the Accreditation Committee and Standards States whether the ABA has complied Standards, Interpretations, and Rules, Review Committee; and their enforcement governing the (3) all university presidents with with the provisions of Section VIII. (C) At any time, if the Antitrust following subjects should be revised: ABA-approved law schools, the deans of Compliance Office learns of any past, (1) faculty teaching-hours; all ABA-approved law schools, the current or anticipated violation of (2) leaves of absence, compensated or Chief Justices or Judges of the highest Sections IV or VI of this Final Judgment, otherwise, for faculty and other staff; Courts of the States and other admitting the ABA shall, within 45 days after such (3) the calculation of the faculty jurisdictions, and to make a best effort knowledge is obtained, take action, or component of student-faculty ratios; to notify the deans of all state-accredited where appropriate initiate action, to (4) physical facilities; law schools; and (5) the allocation of resources to a law (4) all persons serving on site terminate or modify the activity so as to school by the law school or its parent inspection teams during the term of this comply with this Final Judgment. university; and Final Judgment; X (6) the treatment of bar preparation (C) causing this Final Judgment to be courses; published in the next issue of The ABA Plaintiff Access (B) require that the Special Journal and the Student Lawyer (A) To determine or secure Commission complete its review no following the entry of the Final compliance with this Final Judgment, later than February 29, 1996. The Judgment; duly authorized representatives of the 39424 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices United States shall, upon written Civil Action NO. 95–1211 (CR) by the United States Department of request of the Assistant Attorney Filed: June 27, 1995 Education as a law school accrediting General in charge of the Antitrust Competititve Impact Statement agency. Division, and on reasonable notice to In 1973, the ABA adopted its current the ABA, be permitted: Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, Standards for the Approval of Law (1) access during the ABA’s office Schools (‘‘Standards’’), setting forth the hours to inspect and copy all records 15 U.S.C. § 16(b), the United States minimum requirements for legal and documents in its possession or submits this Competitive Impact education that must be met to obtain control relating to any matters contained Statement relating to the proposed Final in this Final Judgment; and Judgment submitted for entry with the and maintain ABA approval. Law (2) to interview the ABA’s officers, consent of defendant American Bar schools were required to be in full employees, or agents,who may have Association (‘‘ABA’’) in this civil compliance with the Standards counsel present, regarding such matters. antitrust action. commencing with the 1975–76 The interviews shall be subject to the I academic year. The Standards and their ABA’s reasonable convenience and Interpretations covered many aspects of without restraint or interference by the Nature and Purpose of the Proceeding the operation of a law school, including ABA. A. The Complaint its salary structure, student-faculty ratios, faculty leave policies, faculty (B) Upon the written request of the On June 27, 1995, the United States workloads, and physical facilities. Assistant Attorney General in charge of filed a civil antitrust suit alleging that the Antitrust Division, the ABA shall the ABA violated Section 1 of the The Section of Legal Education is submit such written reports, under oath Sherman Act in its accreditation of law governed by its Council, which has if requested, relating to any of the schools. The Complaint alleges that the supervisory authority on all matters contained in this Final ABA restrained competition among accreditation matters. The Council has Judgment as may be requested. professional personnel at ABA- established a Standards Review (C) No information or documents approved law schools by fixing their Committee that reviews the Standards obtained by the means provided in this compensation levels and working and their ‘‘Interpretations’’ and Section X shall be divulged by the conditions, and by limiting competition recommends changes to the Council. United States to any person other than from non-ABA-approved schools. The The Council has also established an a duly-authorized representative of the Complaint also alleges that the ABA Accreditation Committee, which closely executive branch of the United States, allowed its law school accreditation oversees the inspection of new law except in the course of legal proceedings process to be captured by those with a to which the United States is a party, or schools and the sabbatical reinspections direct interest in its outcome. of previously approved law schools, and for the purpose of securing compliance Consequently, rather than setting with this Final Judgment, or as make the initial recommendations minimum standards for law school regarding ABA approval. otherwise required by law. quality and thus providing valuable The Accreditation Committee XI information to consumers, the legitimate purposes of accreditation, the ABA at enforces the Standards through Further Elements of Decree times acted as a guild that protected the extensive on-site inspections of law (A) This Final Judgment shall expire interests of professional law school schools. Provisionally approved law 10 years from the date of entry. personnel. schools are inspected every year until (B) Jurisdiction is retained by this The United States and the ABA have receiving full approval, and fully Court for the purpose of enabling either agreed that the proposed Final Judgment approved law schools are inspected of the parties to this Final Judgment to may be entered after compliance with every seven years, except for an initial apply to this Court at any time for the Antitrust Procedures and Penalties visit three years after first gaining full further orders and directions as may be Act. Entry of the Final Judgment will approval. Site inspection teams prepare necessary or appropriate to carry out or terminate this civil action, except that detailed reports for the Accreditation construe this Final Judgment, to modify the Court will retain jurisdiction for Committee. The Accreditation or terminate any of its provisions, to further proceedings that may be Committee may ‘‘continue’’ the enforce compliance, and to punish required to enforce or modify the accreditation of an approved law school, violations of its provisions. Judgment, or to punish violations of any require additional information from a (C) Entry of this Final Judgment is in of its provisions. law school in actual or apparent non- the public interest. B. Law School Accreditation compliance with the Standards or about lllllllllllllllll DATE: The Section of Legal Education and whom the Accreditation Committee has lllllllllllllllllllll Admissions to the Bar (‘‘Section of Legal ‘‘concerns,’’ or require a show cause UNITED STATES DISTRICT JUDGE Education’’) administers law school hearing for law schools in apparent non- compliance with the Standards or their Certificate of Service accreditation. It was created in 1883 as the first Section of the ABA and Interpretations. On June 27, 1995, I caused a copy of assumed the role of an accrediting The day-to-day operation of the the foregoing Proposed Final Judgment agency in 1921. ABA’s accreditation process is directed to be served by facsimile and first-class ABA approval is critical to the by the ABA’s Consultant on Legal mail upon: successful operation of a law school. Education. The Consultant prepares David T. Pritikin, The bar admission rules in over 40 ‘‘Action Letters’’ that inform the law Esqurie Sidley & Austin One First National States require graduation from an ABA- school deans and university presidents Plaza Chicago, Illinois 60603. approved law school in order to satisfy of the Accreditation Committee’s Jessica N. Cohen the legal education requirement for findings and conclusions. United States of America, Plaintiff, v. taking the bar examination. In addition, American Bar Association, Defendant. the ABA is the only agency recognized Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39425 II unaccredited law schools, but permitted university) who teach, adjunct a law school, under certain conditions, professors, clinical and other instructors Description of the Practices Involved in to allow credits for courses taken at a holding short-term contracts, and the Alleged Sherman Act Violation foreign law school (Standard 308 and its tenured faculty teaching part-time At trial, the United States would have Interpretation). The ABA also because of family responsibilities. proved the following: prohibited ABA-approved law schools Although part of the policy supporting A. Anticompetitive Standards And from matriculating graduates of state- reduced student-faculty ratios is the Practices accredited or unaccredited law schools, desirability of smaller classes and but permitted, under certain increased student-faculty contact, the 1. Capture Of The Accreditation circumstances, the matriculation of ABA did not measure actual class size Process. Legal educators, including graduates of foreign law schools or effectively measure actual student- current and former law school dean, (Interpretation 3 of Standard 307). The faculty contacts. The growth of full-time faculty, and librarians, control and ABA rejected a 1979 amendment that faculty at ABA-approved law schools dominate the ABA’s law school would have allowed law schools the substantially exceeded the growth of accreditation process. Approximately discretion to admit any bar members to student enrollment at such schools in 90% of the Section of Legal Education’s their graduate programs. In practice, the the past 10 years. members are legal educators. In ABA permits only the law school, and 5. Teaching Loads. Standard 404 sets substantial part, this is because of the not the affected individual, to apply for a maximum 8-hour-per-week teaching Section of Legal Education’s Faculty a waiver of the Interpretation, and such Group Membership Program, under load or, if a course is duplicated, a 10- applications have been denied. hour load. In practice, an hour was which ABA-approved law schools may Standard 202 prohibited the obtain a group discount on dues for defined as 50 minutes. accreditation of proprietary law schools. 6. Compensated Leaves Of Absence. their faculty. Many law schools pay The ABA has never approved a their faculty’s dues and the faculties of Standard 405(b) required that faculty proprietary law school and the members be afforded a ‘‘reasonable about 145 of the 1774 ABA-approved Accreditation Committee twice law schools hold ABA membership opportunity for leaves of absence and recommended against approval of one for scholarly research.’’ In some through the Faculty Group Membership proprietary law school. Program. instances, this Standard has been These Standards, Interpretations, and applied in practice to require paid All current members of the Standards their application have unreasonably Review Committee and a majority of the sabbaticals, summer stipends, and other restricted competition in the market for forms of research compensation. current members of the Accreditation the services of professional law school 7. Bar Preparation. While Standard Committee are legal educators. The personnel. The salary Standard and its 301 requires a law school to maintain an typical site inspection team has 5–7 application had the effect of ratcheting educational program designed to qualify members, all or nearly all of whom are up law school salaries. The Standard its students for admission to the bar, legal educators. The Consultant’s relating to proprietary law schools Standard 302(b) prohibits a law school position has traditionally been held by erected an unnecessary barrier to from offering a bar preparation course a legal educator. The incumbent has competition from these schools, which served as Consultant for over 20 years often provide their professional staff for credit or requiring one for and is a former dean and a current law with lower salaries and fewer amenities graduation, even for students identified school faculty member. than do ABA-approved schools. The as being at risk of failing the bar 2. Professional Staff Compensation. restrictions on enrolling graduates of examination. A bar preparation course ABA Accreditation Standard 405(a) non-ABA-approved schools, and on cannot be offered as a required course, required that faculty compensation be offering transfer credits for course work even when a law school meets the ABA comparable with that of other ABA- completed at those schools, were minimum credit requirements without approved schools. In practice, this unreasonable restraints of trade aimed at counting the bar preparation course. Standard was extended to cover deans’ deterring effective competition from law 8. Facilities. Standard 701 requires an and professional librarians’ salaries. The schools that are likely to pay less in ‘‘adequate’’ physical plant. Nearly all ABA collected extensive, detailed salary salaries and benefits to their ABA-approved law schools occupy new information, among other data collected, professional staffs. facilities or have made substantial in annual questionnaires that ABA- renovations to existing facilities since approved law schools were required to B. Other Accreditation Standards And the new Standards were adopted in complete. Often, the comparable schools Practices 1973. Despite this, over one-third of all consisted of a ‘‘peer group’’ of schools 4. Student-To-Faculty Ratios. In its ABA-approved schools were put on chosen by the professional staff of the Interpretations of Standards 201 and report for ‘‘inadequate facilities’’ by the inspected school. The ‘‘peer group’’ 401–405, the ABA declared that a Accreditation Committee in 1994, could be and at times was manipulated student-to-faculty ratio of 20:1 or less is including law schools of recognized to include higher-rated law schools or presumably in compliance with its distinction. law schools located in higher-cost areas. accreditation standards but that a 9. Resources. Standard 201 requires Law schools also at times were placed faculty ratio of 30:1 or more is not. that a law school have the necessary on report under Standard 405(a) by the While the Interpretation counts a part- resources to provide a sound legal Accreditation Committee because of time student as two-thirds the education, and Standard 209 requires unfavorable salary structure equivalent of a full-time student, the adequate resources to sustain a sound comparisons, not because of poor ABA has counted only full-time, tenure- educational program. These Standards faculty quality. track professors as ‘‘faculty,’’ thereby have been applied at times by the 3. Boycotts of non-ABA-approved excluding from the count administrators Accreditation Committee to place law schools. The ABA prohibited an ABA- who teach, emeritus or senior faculty schools on report for alleged approved school from granting any who teach, some visiting professors, shortcomings. In 1994, about 50 law transfer credits for courses successfully joint-appointed faculty (faculty holding schools, including many of recognized completed at state-accredited or appointments in two departments in a high quality, were on report for 39426 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices allocating inadequate resources to their of the accreditation Standards were in 7. The Council must approve, and the law school program. some cases more plainly Board review, all annual and site Some of the Standards, anticompetitive than the Standards inspection questionnaires sent to law Interpretations, and other factors themselves, yet their adoption was not schools. described in paragraphs 4 through 9 subject to the same public comment and 8. By October 31, 1995, the ABA will may reflect relevant considerations in hearings requirements as amendments hire an outside independent consultant, assessing the quality of a law school’s to the Standards. who is not a legal educator, to assist in educational program. At times, Accreditation matters for individual evaluating the ABA’s accreditation however, they too have been applied law schools often remained before the Standards and Interpretations and inappropriately to restrict competition Accreditation Committee because it develop a plan for their validation by in the law school labor market. required repeated reports from law December 31, 1995. Special Commission. The ABA has III schools under review, thereby lengthening the accreditation process. established a Special Commission To Explanation of the Proposed Final At one point in 1994, 56% of ABA- Review The Substance And Process Of Judgment approved law schools were under The ABA’s Accreditation Of American Prohibited Conduct. The proposed continuing Accreditation Committee Law Schools. A number of subjects of Final Judgment prohibits the recurrence review and 16% more were undergoing the accreditation process raise of conduct that is plainly sabbatical reinspections that school legitimate educational policy issues, but anticompetitive. Specifically, the Final year. were applied at times to achieve Judgment will eliminate the adoption or As remedies, the proposed Final anticompetitive, guild objectives, as enforcement of any Standard, Judgment provides: discussed in Section II above. These Interpretation or Rule, or the taking of 1. Proposed Interpretations will be subjects are: Faculty teaching-hour any action that imposes requirements as subject to the same public comment and requirements; compensated and other to the base salary, stipends, fringe hearings requirements as proposed required leaves of absence for faculty benefits, or other compensation paid to Standards. All proposed Interpretations, and other staff; the manner in which the law school faculty, administrators or Standards, Rules, and Policies must be ABA calculated the faculty component other law school employees. The Final published annually in the ABA Journal in calculating student-faculty ratios; Judgment also will eliminate the and the Review of Legal Education in physical facilities; the allocation of collection or dissemination of the United States. resources to the law school, and bar compensation data for deans, 2. Law schools may take immediate preparation courses. The Special administrators, faculty, librarians, or appeals to the Council from adverse Commission will review these subjects other employees, and the use of Accreditation Committee Action Letters. and report to the Board of Governors no compensation data in connection with The Accreditation Committee must also later than February 29, 1996. Upon the accreditation of any law school. In report to the Council following each completing its review, the Board will addition, the Final Judgment eliminates meeting all accreditation actions that it file its report with the United States and any Standard, Interpretation or Rule took during the meeting. the Court. The United States may prohibiting the enrollment of a member 3. Elections to the Council will be challenge any proposal in the report of a bar or a graduate of a state- subject to the Board of Governors’ within 90 days of the Commission’s accredited law school in a post-J.D. approval, no more than 50% of the report. Any such challenge will be program, or the acceptance of any Council membership may be law school decided by the Court applying an transfer credits from state-accredited deans or faculty, and members will be antitrust analysis. This is novel relief in law schools. The ABA is also prohibited subject to a two-term limit. Only 40% of a government antitrust case, resulting from accrediting only law schools the members of the Nominating from a recognition that some organized as not-for-profit institutions. Committee may be law school deans or accreditation practices implicate both Additional Relief. The proposed Final faculty. antitrust and educational policy Judgment also contains structural 4. Appointments to the Accreditation concerns. Since the ABA had initiated provisions to ensure that the law school Committee will be subject to Board the Special Commission in response to accreditation process is governed by approval. No more than 50% of the academic criticism of its accreditation persons other than those with a direct Accreditation Committee may be law process and its perception of possible economic interest in its outcome and school deans or faculty, and members antitrust problems, the United States that the process is brought more into will be subject to a two-term limit. The has agreed that the ABA may first public view. As the Complaint states, it same requirements apply to the attempt to reconcile antitrust and is the view of the United States that Standards Review Committee, except educational concerns through its during the past 20 years, the law school that its members are limited to one term. Special Commission. accreditation process has been captured 5. To the extent reasonably feasible, IV by legal educators who have a direct accreditation site inspection teams will interest in the outcome of the process. include at least one practicing lawyer, Remedies Available to Private Litigants Most of the process, as it applied to judge or public member, and one non- Section 4 of the Clayton Act, 15 individual law schools, was carried out law school university administrator. U.S.C. § 15, provides that any person by the Accreditation Committee and the The ABA will annually publish the who has been injured as a result of Consultant’s office and was kept from names of those who participated in conduct prohibited by the antitrust laws public view and the supervision of the domestic and foreign site inspections may bring suit in federal court to ABA’s Board of Governors and House of and the schools they inspected. recover three times the damages Delegates. In addition, the individuals 6. The Council must annual report to suffered, as well as costs and reasonable who serve on the Accreditation the Board on its accreditation activities, attorneys’ fees. Entry of the proposed Committee and in the Consultant’s including identifying all schools under Final Judgment will neither impair nor office had been in these positions for accreditation review and the reasons the assist the bringing of such actions. many years. Finally, the Interpretations law schools are under review. Under the provisions of Section 5(a) of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39427 the Clayton Act, 15 U.S.C. § 16(a), the as its investigation proceeded and as it A trial would involve substantial cost Judgment has no prima facie effect in learned more about the ABA’s practices both to the United States and to the any subsequent lawsuits that may be and their competitive effects. defendant, and is not warranted since brought against the defendant in this The United States eventually the Final Judgment provides all case. concluded, on the basis of the evidence substantial relief the Government would it had gathered, that mere amendment of likely obtain following a successful trial. V the ABA’s Standards and practices Dated: July 14, 1995. would not provide adequate or Procedures Available for Modification of Respectfully submitted, the Proposed Judgment permanent relief and that reform of the entire accreditation process was needed. D. Bruce Pearson As provided by the Antitrust While a prohibition of some of the rules James J. Tierney Procedures and Penalties Act, any was warranted, as is accomplished by Jessica N. Cohen person believing that the proposed Final the proposed Final Judgment, the larger Molly L. DeBusschere Judgment should be modified may and more fundamental problem of Attorneys, U.S. Department of Justice, submit written comments to John F. regulatory capture also had to be Antitrust Division, 555 4th Street, N.W., Room Greaney, Chief, Computers and Finance addressed. 9903, Washington, D.C. 20001, Tel: 202/307– Section, U.S. Department of Justice, Moreover, a number of the Standards, 0809, Fax: 202/616–8544. Antitrust Division, 555 4th Street, N.W., Interpretations and practices at issue, Certificate of Service Room 9903, Washington, D.C. 20001, although sometimes misapplied to within the 60-day period provided by further guild interests in the past, On July 14, 1995, I caused a copy of the Act. These comments, and the concern matters of legitimate the United States’ Competitive Impact Department’s responses, will be filed educational concern. The United States Statement to be served by facsimile and with the Court and published in the concluded that appraisal of whether the first-class mail upon: Federal Register. All comments will be provisions and practices listed in Ronald S. Flagg, Esquire, Sidley & given due consideration by the Section IV.D of the Complaint are Austin, 1722 Eye Street, N.W., Department of Justice, which remains anticompetitive or set a procompetitive Washington, D.C. 20006, fax: (202) free to withdraw its consent to the minimum educational standard for law 736–8711 proposed Final Judgment at any time school programs should be made in the prior to entry. The proposed Final David T. Pritikin, Esquire, Sidley & first instance by the ABA itself, subject Austin, One First National Plaza, Judgment provides that the Court retains to subsequent review. The United States jurisdiction over this action, and the Chicago, Illinois 60603, fax: 312/853– agreed to submit the first four of the 7036 parties may apply to the Court for any practices initially of most concern to it, order necessary or appropriate for along with others about which it had and modification, interpretation, or developed concern, to review by the Darryl L. DePriest, 541 N. Fairbanks enforcement of the Final Judgment. ABA’s Special Commission. (In the case Court, Chicago, Illinois 60611, fax: 312/988–5217. VI of first-year teaching requirements, on the basis of evidence it subsequently James J. Tierney Determinative Materials/Documents gathered the United States abandoned [FR Doc. 95–18946 Filed 8–1–95; 8:45 am] No materials or documents of the type its initial opposition). If the Special BILLING CODE 4410±01±M described in Section 2(b) of the Commission fails to consider adequately Antitrust Procedures and Penalties Act, the antitrust implications of continuing 15 U.S.C. § 16(b), were considered in the ABA’s past practices in these areas, Drug Enforcement Administration formulating the proposed Final the Final Judgment permits the United Judgment. States to challenge the Special Jonathan L. Wilson, D.V.M.; Denial of Commission’s proposals and seek Application VII further injunctive relief from the Court. The United States had also earlier On June 2, 1995, the Deputy Assistant Alternatives to the Proposed Final proposed that the ABA’s Special Administrator, Office of Diversion Judgment Commission be separately constituted as Control, Drug Enforcement The United States considered other an antitrust review committee whose Administration (DEA), issued an Order relief in addition to the remedies membership would be one-third to Show Cause to Jonathan L. Wilson, of contained in the proposed Final practitioners, judges, and public Kennett, Missouri (Respondent), Judgment. In particular, early in the members; one-third non-law school proposing to deny his application for a investigation, the United States university administrators; and one-third DEA Certificate of Registration as a proposed injunctive relief eliminating: law school administrators and faculty. practitioner. The statutory basis for the the ABA’s prohibition of credits for a Although the Government recognized Order to Show Cause was that bar review course: the ABA’s practice of that a number of members of the Special Respondent was not authorized to attributing no value to teachers other Commission had participated in the handle controlled substances in the than full-time tenure-track faculty in accreditation process in the past, it also State of Missouri. 21 U.S.C. 823(f). calculating student-faculty ratios; the considered that the Special Commission The Order to Show Cause was sent to maximum teaching hour limits; the was already constituted and had Respondent by certified mail, return faculty leave of absence requirements; progressed in its work, that ABA receipt requested. DEA received a and the requirement that substantially leadership was now familiar with and receipt, signed by ‘‘J.L. Wilson’’ and all first-year courses be taught by full- sensitive to antitrust concerns, and that dated June 8, 1995. Respondent did not time faculty. Later the United States the Commission report was subject to request a hearing on the matter, nor proposed other relief, all of which is challenge by the United States and forward any response to the Order to included in the proposed Final review by the Court. Show Cause to DEA, within the thirty Judgment. The United States made these Another alternative to the proposed days provided in 21 CFR 1301.54. proposals during the negotiating process Final Judgment is a full trial of the case. Pursuant to 21 CFR 1301.57, the Deputy 39428 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Administrator hereby enters his final 96–511). Copies may be obtained by Frequency: One-time survey. order based upon the investigative file. calling the Department of Labor Acting Affected Public: Individuals or By letter dated July 27, 1992, the Departmental Clearance Officer, Theresa households. Missouri Department of Health denied M. O’Malley ({202} 219–5095). Number of Respondents: 55,000. Respondent’s application for a Missouri Comments and questions about the ICRs Estimated Time Per Respondent: .15 Controlled Substances Registration listed below should be directed to Ms. hours. effective June 24, 1992. The Missouri O’Malley, Office of Information Total Burden Hours: 8,250. Department of Health’s decision was Resources Management Policy, U.S. Description: The information based on the following: (1) Respondent’s Department of Labor, 200 Constitution collected in this supplement will be inability to accept responsibility for Avenue NW., Room N–1301, used to determine the size and nature of diverting Demerol (a Schedule II Washington, DC 20210. Comments the population affected by job controlled substance) for personal use should also be sent to the Office of displacement and, hence, the needs and and abuse; and (2) Respondent’s having Information and Regulatory Affairs, scope of the Job Training Partnership provided false or misleading Attn: OMB Desk Officer for (BLS/DM/ Act Programs (or subsequent information on his application by failing ESA/ETA/OAW/MSHA/OSHA/PWBA/ consolidated programs serving adult to disclose the revocation of his VETS), Office of Management and displaced workers). The information Mississippi Veterinary License in Budget, Room 10325, Washington, DC collected also will be used to assess September of 1976. 20503 ({202} 395–7316). employment stability by determining The DEA has consistently held that it Individuals who use a the length of time workers have been does not have statutory authority under telecommunications device for the deaf with their current employer and the Controlled Substances Act to (TTY/TDD) may call {202} 219–4720 estimating the incidence of occupational register a practitioner unless that between 1:00 p.m. and 4:00 p.m. change over the course of a year. In practitioner is authorized to dispense Western time, Monday through Friday. addition, data on job tenure for all controlled substances by the state in Type of Review: Extension. workers are needed to calculate which he proposes to practice. See Agency: Mine Safety and Health displacement rates among various Lawrence R. Alexander, M.D., 57 FR Administration. worker groups so that comparison can 22256 (1992); Bobby Watts, M.D., 53 FR Title: Examinations and Tests of be made over time and among different 11919 (1988); Robert F. Witek, D.D.S., 52 Electrical Equipment. affected groups. Combining the FR 4770 (1987). Because Respondent is OMB Number: 1219–0067. questions on displacement, tenure, and not authorized to handle controlled Frequency: On occasion. occupational change will enable substances in the State of Missouri, the Affected Public: Business or other for- analysts to obtain a more complete Deputy Administrator cannot permit profit. picture of employment stability. him to obtain a DEA Certificate of Number of Respondents: 2,231,536. Theresa M. O’Malley, Registration in that state. Estimated Time Per Respondent: .77 Acting Departmental Clearance Officer. Accordingly, the Deputy hours. [FR Doc. 95–18979 Filed 8–1–95; 8:45 am] Administrator of the Drug Enforcement Total Burden Hours: 1,726,992. BILLING CODE 4510±43±M Administration, pursuant to 21 U.S.C. Description: Requires coal mine 823 and 824 and 28 CFR 0.100(b) and operators to frequently examine, test, 0.104, hereby orders that any pending and properly maintain all electric Mine Safety and Health Administration applications for a DEA Certificate of equipment and to keep records of the Registration as a practitioner on behalf results of the examinations and tests. Petitions for Modification of Jonathan L. Wilson, be, and they Type of Review: Extension. hereby are denied. This order is Agency: Mine Safety and Health This notice amends an affirmative effective September 1, 1995. Administration. decision issued by the Administrator of Metal and Nonmetal Mine Safety and Dated: July 27, 1995. Title: Approval Requirements for Electric Motor Assemblies. Health on a petition for modification of Stephen H. Greene, the application of a mandatory safety Deputy Administrator. OMB Number: 1219–0115. Frequency: On occasion. standard to correct the word ‘‘shop’’ in [FR Doc. 95–18978 Filed 8–1–95; 8:45 am] Affected Public: Business or other for- a document published in the Federal BILLING CODE 4410±09±M profit. Register on June 20, 1995 (60 FR 32180) Number of Respondents: 89. to read ‘‘shot’’. Estimated Time Per Respondent: Docket No.: M–94–38–M DEPARTMENT OF LABOR 3.0224 hours. FR Notice: 59 FR 50008 Total Burden Hours: 269. Petitioner: Independent Aggregates Office of the Secretary Description: Establishes specific Reg Affected: 30 CFR 56.6306(b) Summary of Findings: Petitioner’s Agency Recordkeeping/Reporting requirements for MSHA approval of proposal to continue drilling the shot Requirements Under Review by the certain explosion-proof electric motor pattern while loading is in progress by Office of Management and Budget assemblies intended for use in approved completing a drill hole and (OMB) equipment in underground mines. Type of Review: Revision. immediately loading the hole while July 27, 1995. Agency: Bureau of Labor Statistics/ continuing to drill a new hole The Department of Labor has Employment and Training considered acceptable alternative submitted the following public Administration. method. Granted with conditions. information collection requests (ICRs) to Title: February 1996 CPS Displaced The following parties have filed the Office of Management and Budget Worker, Job Tenure, and Occupational petitions to modify the application of (OMB) for review and clearance under Mobility Supplement. mandatory safety standards under the Paperwork Reduction Act (44 U.S.C. OMB Number: 1220–0104. section 101(c) of the Federal Mine Chapter 35) of 1980, as amended (P.L. Agency Number: CPS–1. Safety and Health Act of 1977. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39429 1. Consolidation Coal Company application of 30 CFR 75.1101–8 to its 6. Cyprus Empire Corporation [Docket No. M–95–92–C] 9AB - H4 Mine (I.D. No. 15–17667) [Docket No. M–95–97–C] Consolidation Coal Company, Consol located in Floyd County, Kentucky. The Cyprus Empire Corporation Plaza, 1800 Washington Road, petitioner requests a modification of the (previously Empire Energy Corporation), Pittsburgh, Pennsylvania 15241–1421 standard to permit the use of a single P.O. Box 68, Craig, Colorado 81626 has has filed a petition to modify the line of automatic sprinklers for its fire filed a petition to modify the application of 30 CFR 75.1002 to its protection system on main and application of 30 CFR 75.1002 to its Loveridge No. 22 Mine (I.D. No. 46– secondary belt conveyors. The Eagle No. 5 Mine (I.D. No. 05–01370) 01433) located in Marion County, West petitioner proposes to use a single located in Moffat County, Colorado. The Virginia. The petitioner proposes to use overhead pipe system with 1/2-inch petitioner requests that Item 10 of high-voltage (4,160 volts) cables inby orifice automatic sprinklers located on MSHA’s Proposed Decision and Order the last open crosscut to supply power 10-foot centers to cover 50 feet of fire- granting petition for modification, to longwall equipment. The petitioner resistant belt or 150 feet of nonfire- docket number M–84–263–C be asserts that the proposed alternative resistant belt with actuation amended. The petitioner states that it is method would provide at least the same temperatures between 200 and 230 imperative that as products meet flame measure of protection as would the degrees fahrenheit and with water resistance and other MSHA mandatory standard. pressure equal to or greater than 10 psi; specifications, they become available for use instead of obsolete products; and 2. Costain Coal, Inc. to have automatic sprinklers located not more than 10 feet apart in order for the that the request to amend the presently [Docket No. M–95–93–C] discharge of water to extend over the approved petition addresses this Costain Coal, Inc., P.O. Box 289, specific issue. belt drive, belt take-up, electrical Sturgis, Kentucky 42459–0289 has filed control, and gear reducing unit; and to 7. Mt. Top Coal Company a petition to modify the application of 30 CFR 75.364(b)(4) to its Wheatcroft conduct annual functional tests of each [Docket No. M–95–98–C] Mine (I.D. No. 15–13920) located in water sprinkler system. The petitioner Mt. Top Coal Company, 104 E. Grand Webster County, Kentucky. Due to asserts that the proposed alternative Avenue, Tower City, Pennsylvania deteriorating roof conditions in the method would provide at least the same 17980 has filed a petition to modify the Main North and 1st North Panel and the measure of protection as would the application of 30 CFR 75.335 to its Buck approaches to the No. 10 seals, traveling mandatory standard. Mt. Slope (I.D. No. 36–07359) located in the area would be unsafe. The petitioner 5. Cyprus Cumberland Resources Schuylkill County, Pennsylvania. The proposes to establish evaluation points petitioner requests a modification of the Corporation to determine the direction and quantity standard to permit alternative methods of air going into the affected area and to [Docket No. M–95–96–C] of seal construction using wooden examine these points on a weekly basis. materials of moderate size and weight Cyprus Cumberland Resources The petitioner states that application of due to difficulty in accessing previously Corporation, 9100 East Mineral Circle, the standard would result in a driven headings and breasts containing Englewood, Colorado 80112 has filed a diminution of safety to the persons inaccessible abandoned workings; to making weekly examinations. In petition to modify the application of 30 accept a design criterion in the 10 psi addition, the petitioner asserts that the CFR 75.507 to its Cumberland Mine (I.D. range; and to permit the water trap to be proposed alternative method would No. 36–05018) located in Green County, installed in the gangway seal and provide at least the same measure of Pennsylvania. The petitioner proposes sampling tube in the monkey seal for protection as would the mandatory to use nonpermissible submersible seals installed in pairs. The petitioner standard. pumps to dewater bleeder sumps or asserts that the proposed alternative bleeder entries in order to provide method would provide at least the same 3. Western Mingo Coal Company unrestricted airflow into the return air measure of protection as would the [Docket No. M–95–94–C] shaft or through the return entries. The mandatory standard. Western Mingo Coal Company, P.O. petitioner states that these pumps are 8. Key West Mining, Inc. Box 119, Naugatuck, West Virginia designed to cease operation when the 25685 has filed a petition to modify the water level is 3 feet above the level of [Docket No. M–95–99–C] application of 30 CFR 75.350 to its the pump motor and would operate on Key West Mining, Inc., P.O. Box 768, Northern Mingo No. 2 Mine (I.D. No. a 480-volt three-phase alternating Grundy, Virginia 24614 has filed a 46–08369) located in Mingo County, current electrical power circuit with a petition to modify the application of 30 West Virginia. The petitioner proposes resistor grounded wye transformer CFR 75.360 to its Mine No. 3 (I.D. No. to install a low-level carbon monoxide protected by a line power ground-fault, 44–03264) located in Buchanan County, detection system as an early warning pilot combination unit; that proposed Virginia. The petitioner requests relief fire detection system in all belt entries revisions for their training plan would from the standard requiring preshift used as intake air courses. The be implemented and given to the examinations of underground conveyor petitioner asserts that the proposed District Manager for the area in which belts in its entirety. The petitioner states that the area cannot be traveled safely alternative method would provide at the pump and pump electrical controls least the same measure of protection as due to deteriorating roof conditions in are located; and that the training plan would the mandatory standard. the No. 1 conveyor belt entry starting at would specify task training for all a location approximately 170 feet from 4. CONSOL of Kentucky, Inc. selected mine electricians who will the surface and extending for a distance [Docket No. M–95–95–C] perform electrical work on the pumps. of approximately 90 feet. As an CONSOL of Kentucky, Inc., Consol The petitioner asserts that the proposed alternative, the petitioner proposes to Plaza, 1800 Washington Road, alternative method would provide at visually examine the 90 feet area Pittsburgh, Pennsylvania 15241–1421 least the same measure of protection as affected from both the inby and outby has filed a petition to modify the would the mandatory standard. ends. The petitioner states that 39430 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices application of the standard would result of Standards, Regulations and accident previously evaluated; or (2) in a diminution of safety to the miners. Variances, Mine Safety and Health create the possibility of a new or In addition, the petitioner asserts that Administration, Room 627, 4015 Wilson different kind of accident from any the proposed alternative method would Boulevard, Arlington, Virginia 22203. accident previously evaluated; or (3) provide at least the same measure of All comments must be postmarked or involve a significant reduction in a protection as would the mandatory received in that office on or before margin of safety. The basis for this standard. September 1, 1995. Copies of these proposed determination for each petitions are available for inspection at amendment request is shown below. 9. Performance Coal Company that address. The Commission is seeking public [Docket No. M–95–100–C] Dated: July 25, 1995. comments on this proposed determination. Any comments received Performance Coal Company, P.O. Box Patricia W. Silvey, 69, Naoma, West Virginia 25140 has within 30 days after the date of Director, Office of Standards, Regulations and publication of this notice will be filed a petition to modify the Variances. application of 30 CFR 75.350 to its considered in making any final [FR Doc. 95–18947 Filed 8–1–95; 8:45 am] determination. Upper Big Branch South Mine (I.D. No. BILLING CODE 4510±43±P 46–08436) located in Raleigh County, Normally, the Commission will not West Virginia. The petitioner proposes issue the amendment until the to install a low-level carbon monoxide expiration of the 30-day notice period. NUCLEAR REGULATORY However, should circumstances change detection system as an early warning COMMISSION fire detection system in all belt entries during the notice period such that used as intake air courses. The failure to act in a timely way would Biweekly Notice result, for example, in derating or petitioner asserts that the proposed shutdown of the facility, the alternative method would provide at Applications and Amendments to Commission may issue the license least the same measure of protection as Facility Operating Licenses Involving amendment before the expiration of the would the mandatory standard. No Significant Hazards Considerations 30-day notice period, provided that its 10. Performance Coal Company I. Background final determination is that the Pursuant to Public Law 97-415, the [Docket No. M–95–101–C] amendment involves no significant U.S. Nuclear Regulatory Commission hazards consideration. The final Performance Coal Company, P.O. Box (the Commission or NRC staff) is determination will consider all public 69, Naoma, West Virginia 25140 has publishing this regular biweekly notice. and State comments received before filed a petition to modify the Public Law 97-415 revised section 189 action is taken. Should the Commission application of 30 CFR 75.1700 to its of the Atomic Energy Act of 1954, as take this action, it will publish in the Upper Big Branch South Mine (I.D. No. amended (the Act), to require the Federal Register a notice of issuance 46–08436) located in Raleigh County, Commission to publish notice of any and provide for opportunity for a West Virginia. The petitioner proposes amendments issued, or proposed to be hearing after issuance. The Commission to plug and mine through oil and gas issued, under a new provision of section expects that the need to take this action wells. The petitioner asserts that the 189 of the Act. This provision grants the will occur very infrequently. proposed alternative method would Commission the authority to issue and Written comments may be submitted provide at least the same measure of make immediately effective any by mail to the Rules Review and protection as would the mandatory amendment to an operating license Directives Branch, Division of Freedom standard. upon a determination by the of Information and Publications 11. C.L.D., Inc. Commission that such amendment Services, Office of Administration, U.S. involves no significant hazards Nuclear Regulatory Commission, [Docket No. M–95–10–M] consideration, notwithstanding the Washington, DC 20555, and should cite C.L.D., Inc., 2765 East 500 South, pendency before the Commission of a the publication date and page number of Vernal, Utah 84078 has filed a petition request for a hearing from any person. this Federal Register notice. Written to modify the application of 30 CFR This biweekly notice includes all comments may also be delivered to 57.4760(a) to its Cowboy No. 1 and 2 notices of amendments issued, or Room 6D22, Two White Flint North, Mine (I.D. No. 42–02096) located in proposed to be issued from July 7, 1995, 11545 Rockville Pike, Rockville, Uintah County, Utah. The petitioner through July 21, 1995. The last biweekly Maryland from 7:30 a.m. to 4:15 p.m. requests a variance from the mandatory notice was published on Wednesday, Federal workdays. Copies of written safety standard because the mining July 19, 1996 (60 FR 37084). comments received may be examined at methods used at its gilsonite mines do the NRC Public Document Room, the not provide a physical means to comply Notice Of Consideration Of Issuance Of Gelman Building, 2120 L Street, NW., with the standard. The petitioner states Amendments To Facility Operating Washington, DC. The filing of requests that a gilsonite mine uses an open- Licenses, Proposed No Significant for a hearing and petitions for leave to trench method of mining and that the Hazards Consideration Determination, intervene is discussed below. mines are connected to other mines and And Opportunity For A Hearing By September 1, 1995, the licensee are self-ventilating. The petitioner The Commission has made a may file a request for a hearing with asserts that the proposed alternative proposed determination that the respect to issuance of the amendment to method would provide at least the same following amendment requests involve the subject facility operating license and measure of protection as would the no significant hazards consideration. any person whose interest may be mandatory standard. Under the Commission’s regulations in affected by this proceeding and who 10 CFR 50.92, this means that operation wishes to participate as a party in the Request for Comments of the facility in accordance with the proceeding must file a written request Persons interested in these petitions proposed amendment would not (1) for a hearing and a petition for leave to may furnish written comments. These involve a significant increase in the intervene. Requests for a hearing and a comments must be filed with the Office probability or consequences of an petition for leave to intervene shall be Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39431 filed in accordance with the provide references to those specific should also be sent to the Office of the Commission’s ‘‘Rules of Practice for sources and documents of which the General Counsel, U.S. Nuclear Domestic Licensing Proceedings’’ in 10 petitioner is aware and on which the Regulatory Commission, Washington, CFR Part 2. Interested persons should petitioner intends to rely to establish DC 20555, and to the attorney for the consult a current copy of 10 CFR 2.714 those facts or expert opinion. Petitioner licensee. which is available at the Commission’s must provide sufficient information to Nontimely filings of petitions for Public Document Room, the Gelman show that a genuine dispute exists with leave to intervene, amended petitions, Building, 2120 L Street, NW., the applicant on a material issue of law supplemental petitions and/or requests Washington, DC and at the local public or fact. Contentions shall be limited to for a hearing will not be entertained document room for the particular matters within the scope of the absent a determination by the facility involved. If a request for a amendment under consideration. The Commission, the presiding officer or the hearing or petition for leave to intervene contention must be one which, if Atomic Safety and Licensing Board that is filed by the above date, the proven, would entitle the petitioner to the petition and/or request should be Commission or an Atomic Safety and relief. A petitioner who fails to file such granted based upon a balancing of Licensing Board, designated by the a supplement which satisfies these factors specified in 10 CFR Commission or by the Chairman of the requirements with respect to at least one 2.714(a)(1)(i)-(v) and 2.714(d). Atomic Safety and Licensing Board contention will not be permitted to For further details with respect to this Panel, will rule on the request and/or participate as a party. action, see the application for petition; and the Secretary or the Those permitted to intervene become amendment which is available for designated Atomic Safety and Licensing parties to the proceeding, subject to any public inspection at the Commission’s Board will issue a notice of a hearing or limitations in the order granting leave to Public Document Room, the Gelman an appropriate order. intervene, and have the opportunity to Building, 2120 L Street, NW., As required by 10 CFR 2.714, a participate fully in the conduct of the Washington, DC, and at the local public petition for leave to intervene shall set hearing, including the opportunity to document room for the particular forth with particularity the interest of present evidence and cross-examine facility involved. the petitioner in the proceeding, and witnesses. how that interest may be affected by the If a hearing is requested, the Arizona Public Service Company, et al., results of the proceeding. The petition Commission will make a final Docket Nos. STN 50-528, STN 50-529, should specifically explain the reasons determination on the issue of no and STN 50-530, Palo Verde Nuclear why intervention should be permitted significant hazards consideration. The Generating Station, Units Nos. 1, 2, and with particular reference to the final determination will serve to decide 3, Maricopa County, Arizona following factors: (1) the nature of the when the hearing is held. Date of amendments request: July 3, petitioner’s right under the Act to be If the final determination is that the 1995 made a party to the proceeding; (2) the amendment request involves no Description of amendments request: nature and extent of the petitioner’s significant hazards consideration, the The proposed Technical Specification property, financial, or other interest in Commission may issue the amendment (TS) amendment temporarily adds new the proceeding; and (3) the possible and make it immediately effective, ACTION Statements 3.8.1.1.f and effect of any order which may be notwithstanding the request for a 3.8.1.1.g to TS 3.8.1.1, ‘‘A.C. Sources - entered in the proceeding on the hearing. Any hearing held would take Operating,’’ to provide a method of petitioner’s interest. The petition should place after issuance of the amendment. responding to sustained degraded also identify the specific aspect(s) of the If the final determination is that the switchyard voltage. Bases 3/4.8.1, ‘‘A.C. subject matter of the proceeding as to amendment request involves a Sources,’’ 3/4.8.2, ‘‘D.C. Sources,’’ and which petitioner wishes to intervene. significant hazards consideration, any 3/4.8.3, ‘‘Onsite Distribution Systems,’’ Any person who has filed a petition for hearing held would take place before are also being revised to provide leave to intervene or who has been the issuance of any amendment. guidance on how and why degraded admitted as a party may amend the A request for a hearing or a petition offsite power voltage and the number of petition without requesting leave of the for leave to intervene must be filed with startup transformers in service affect Board up to 15 days prior to the first the Secretary of the Commission, U.S. compliance with GDC 17 and to give the prehearing conference scheduled in the Nuclear Regulatory Commission, basis for the additional ACTION proceeding, but such an amended Washington, DC 20555, Attention: statements. petition must satisfy the specificity Docketing and Services Branch, or may Basis for proposed no significant requirements described above. be delivered to the Commission’s Public hazards consideration determination:As Not later than 15 days prior to the first Document Room, the Gelman Building, required by 10 CFR 50.91(a), the prehearing conference scheduled in the 2120 L Street, NW., Washington DC, by licensee has provided its analysis of the proceeding, a petitioner shall file a the above date. Where petitions are filed issue of no significant hazards supplement to the petition to intervene during the last 10 days of the notice consideration, which is presented which must include a list of the period, it is requested that the petitioner below: contentions which are sought to be promptly so inform the Commission by 1. The proposed change does not involve litigated in the matter. Each contention a toll-free telephone call to Western a significant increase in the probability or must consist of a specific statement of Union at 1-(800) 248-5100 (in Missouri consequences of an accident previously the issue of law or fact to be raised or 1-(800) 342-6700). The Western Union evaluated. controverted. In addition, the petitioner operator should be given Datagram The proposed change does not significantly shall provide a brief explanation of the Identification Number N1023 and the increase the probability of an accident bases of the contention and a concise following message addressed to (Project previously evaluated in the Updated Final Safety Analysis Report (UFSAR). The safety statement of the alleged facts or expert Director): petitioner’s name and function of the Electrical Distribution System opinion which support the contention telephone number, date petition was (EDS) is to provide sufficient capacity and and on which the petitioner intends to mailed, plant name, and publication capability to assure that 1) specified rely in proving the contention at the date and page number of this Federal acceptable fuel design limits and design hearing. The petitioner must also Register notice. A copy of the petition conditions of the reactor coolant pressure 39432 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices boundary are not exceeded as a result of Given the current licensing basis, the safety. TS 3.8.1.1.a would not be required anticipated operational occurrences and 2) proposed temporary TS change does not with both trains of FBT blocked as all four the core is cooled and containment integrity create the possibility of an accident of a new AC power sources would then be and other vital functions are maintained in or different kind. The plant is currently OPERABLE. the event of postulated accidents. In licensed to have both trains of FBT blocked Regulatory Guide 1.93, ‘‘Availability of addition, it shall have sufficient when low switchyard voltages exist in order Electric Power Sources,’’ Revision 0, independence, redundancy, and testability to to prevent the loss of power generated by the December 1974 recognizes that under certain perform its safety function assuming a single nuclear power unit from causing the loss of conditions it may be safer to continue failure. The proposed ACTIONs will restore the preferred power circuits. The proposed operation at full or reduced power for a the EDS to conformance with General Design temporary TS ACTIONs 3.8.1.1.f and limited time than to effect an immediate Criterion (GDC) 17 of Appendix A to 10 CFR 3.8.1.1.g are being added as ACTIONs to shutdown based on the loss of some of the 50. Once in conformance with GDC 17, the prevent a double sequencing event from required electric power sources. In an effort system will be capable of performing its occurring. The train that is blocked is to minimize the risk to the health and safety safety function as analyzed in Chapters 6 and consistent with previous UFSAR Chapter 6 of the public, the proposed ACTIONs 15 of the UFSAR. The proposed temporary and Chapter 15 safety analyses since it will 3.8.1.1.f and 3.8.1.1.g balance the risk of a change has no effect on the probability of conform to GDC 17 prior to the onset of the forced shutdown against the risk of accident initiation, therefore, the probability accident. Under this condition it will be able remaining at power with a degraded of an accident previously evaluated has not to contribute to the mitigation of an accident switchyard voltage. been significantly increased. and withstand the effects of any single failure Probabilistic Risk Analysis (PRA) has The consequences of an accident equal to its ability when initially analyzed compared the probability of a core melt event previously evaluated in the UFSAR will not and licensed. The EDG which is loaded and for 1) blocking fast bus transfer in one train be significantly increased. Restoring one train isolated from offsite power also contributes after one hour for the next seventy-one hours, to OPERABLE, by blocking Fast Bus Transfer to GDC 17 compliance since the entire and in the second train after two hours for (FBT), within one hour is consistent with the system can withstand a Loss of Offsite Power the next seventy hours; 2) blocking fast bus response time of Technical Specification (TS) (LOP) and a single failure of an EDG. With transfer in one train after the first hour for ACTION 3.0.3. The second train will be both trains blocked, the EDS is in compliance the next seventy-one hours, and supplying restored to OPERABLE by having its with GDC 17 and is analyzed. power to the other train from the EDG after Emergency Diesel Generator (EDG) started, It is understood that an accident of a the second hour for seventy hours; and 3) a loaded, and separated from offsite power different kind will exist if a degraded voltage normal shutdown assuming the plant is in a within two hours or FBT will be blocked condition occurs coincident with an accident normal configuration and no other transients within two hours. Action within two hours (e.g., LOCA [versus the analyzed LOP + or accidents except an uncomplicated reactor trip occurs during the shutdown process. is consistent with the plant—s TS since TS LOCA]). Should such an accident occur, the Seventy-two hours was chosen for ACTION 3.8.2.1.a, ‘‘D. C. Sources - manual action described in the proposed comparison purposes as the proposed Operating,’’ would be the most limiting ACTION statements could not be credited to ACTIONs would allow operation for up to requirement with one train of inoperable protect the plant. However, the purpose of seventy-two hours with one offsite circuit electric power. In a degraded voltage event, proposed ACTIONs 3.8.1.1.f and 3.8.1.1.g is INOPERABLE. the ability of the Class 1E 125VDC battery to provide an appropriate response to The PRA has shown that the probability of chargers to perform their function is degraded voltage prior to an accident by a core melt event during power operation indeterminate, therefore, the Class 1E eliminating the malfunction of a different with FBT blocked in one train after one hour 125VDC batteries must be assumed to type (double sequencing) and an accident of for the next seventy-one hours, and in the provide the 125VDC control power to the a different type (e.g., degraded voltage + second train after two hours for the next Class 1E Engineered Safety Features (ESF) LOCA) for one train within one hour and for seventy hours is approximately 1.91E-6. The circuit breakers for both of their sequences. the second train within two hours. This probability of a core melt event during power The battery capacity calculations assume duration of response is consistent with the operation with FBT blocked in one train after only one sequence. Once one train is restored required responses currently in the TSs 3.0.3, one hour for the next seventy-one hours and to OPERABLE and the other train—s EDG 3.8.2.1.a, and 3.8.1.1.a. the EDG powering the opposite train after the demonstrated to be OPERABLE by loading 3. The proposed change does not involve second hour for the next seventy hours (the and separating from the grid, ACTION a significant reduction in a margin of safety. proposed configuration) is between 3.8.1.1.a, for one INOPERABLE offsite power The margin of safety has not been reduced approximately 1.91E-6 and 1.93E-6. A range supply, allows operation to continue for up in that the train which has FBT blocked prior is provided because the current PRA model to seventy-two hours. If both trains are to the onset of an accident will be in can only model blocking both trains or the blocked, then both trains are OPERABLE. conformance with GDC 17 (which is the basis EDGs supplying both trains. The risk lies The proposed change will ensure that the to TS 3/4.8.1). Since the blocked train is in somewhere between the two values. The train that blocks FBT will be in conformance conformance with GDC 17 prior to the onset probability of a core melt event due to a with GDC 17 should a subsequent accident of an accident, it will support the single normal shutdown assuming the plant is in a occur. As such, that train of ESF equipment failure analyses and the safety analyses to the normal configuration and no other transients will be supplied Class 1E preferred and extent previously analyzed and licensed. The or accidents except an uncomplicated reactor standby power in the manner assumed by train not blocked will have its EDG started, trip occurs during the shutdown process is Chapters 6 and 15 analyses. Starting, loading, loaded, and separated from offsite power 2.4E-6. The risk can not be calculated for a and separating the other train—s EDG from prior to the end of the second hour. Action forced shutdown with degraded switchyard offsite power ensures that the second train of within two hours is consistent with TS voltage present but it is expected to be ESF equipment is prepared to respond to any 3.8.2.1.a. The proposed action recovers one higher. Therefore, the analysis provided is subsequent accident. This configuration train of A.C. sources in one hour and places conservative. presents one OPERABLE offsite circuit and the plant in a configuration of one less power The NRC staff has reviewed the two OPERABLE EDGs to any subsequent source than is required by LCO 3.8.1.1 within licensee’s analysis and, based on that accident, and would be capable of two hours. Currently, TS ACTION 3.8.1.1.a review, it appears that the three withstanding the single failures in the (one power source inoperable) has a duration standards of 50.92(c) are satisfied. UFSAR Table 15.0-0, ‘‘Single Failures.’’ of seventy-two hours. The proposed ACTION Therefore, the NRC staff proposes to Optionally, with both trains blocked, both are requires responses within time frames determine that the amendments request OPERABLE and would be capable of consistent with TSs 3.0.3, 3.8.2.1.a, and withstanding the single failures in the 3.8.1.1.a, and therefore, does not reduce the involve no significant hazards UFSAR Table 15.0-0, ‘‘Single Failures.’’ margin of safety. Optionally, restoration of consideration. 2. The proposed change does not create the the second train by blocking FBT within two Local Public Document Room possibility of a new or different kind of hours is also consistent with response times location: Phoenix Public Library, 1221 accident from any accident previously required by TS 3.0.3 and 3.8.2.1.a and N. Central Avenue, Phoenix, Arizona evaluated. therefore, also does not reduce the margin of 85004 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39433 Attorney for licensee: Nancy C. Loftin, will not involve a significant reduction in a Nuclear Power Station and sister site Esq., Corporate Secretary and Counsel, margin of safety. The notch positions were Quad Cities Nuclear Power Station Arizona Public Service Company, P.O. chosen to coincide with the relative insertion needed attention focused on the existing Box 53999, Mail Station 9068, Phoenix, values specified in the Technical custom Technical Specifications (TS) Specifications. Use of the proposed used. Arizona 85072-3999 combination of notch positions and scram NRC Project Director: William H. insertion times will maintain the existing The licensee made the decision to Bateman margins of safety that 99.9 percent of all fuel initiate a Technical Specification rods will not experience transition boiling Upgrade Program (TSUP) for both Boston Edison Company, Docket No. Dresden and Quad Cities. The licensee 50-293, Pilgrim Nuclear Power Station, following a design basis transient. Section 4.11.C - Minimum Critical Power evaluated the current TS for both Plymouth County, Massachusetts Ratio (MCPR) Calculation Method Dresden and Quad Cities against the Date of amendment request: July 14, 1. The proposed change does not involve Standard Technical Specifications (STS) 1995 a significant increase in the probability or contained in NUREG-0123, ‘‘Standard Description of amendment request: consequences of an accident previously Technical Specifications General The proposed amendment would evaluated because the method used to Electric Plants BWR/4.’’ The licensee’s calculate the measured scram speed change the scram insertion times, evaluation identified numerous Section 3.3.C, Minimum Critical Power distribution is consistent with the PNPS [Pilgrim Nuclear Power Station] licensing potential improvements such as Ratio section, Section 4.11.C and the basis. clarifying requirements, changing TS to associated bases in Section 2.1.1 and 3/ 2. The operation of Pilgrim Station in make them more understandable and to 4.3. accordance with the proposed amendment eliminate interpretation, and deleting Basis for proposed no significant will not create the possibility of a new or requirements that are no longer hazards consideration determination:As different kind of accident from any accident considered current with industry required by 10 CFR 50.91(a), the previously evaluated because the proposed practice. As a result of the evaluation, licensee has provided its analysis of the change does not affect the function of any ComEd has elected to upgrade both the issue of no significant hazards structure, system or component. Dresden and Quad Cities TS to the STS 3. The operation of Pilgrim Station in consideration, which is presented contained in NUREG-0123. below: accordance with the proposed amendment will not involve a significant reduction in the The TSUP for Dresden and Quad Section 2.1 Bases - Safety Limits margin of safety because the proposed Cities is not a complete adaption of the 1. The proposed change does not involve changes provide equivalent fuel STS. The TSUP focuses on (1) a significant increase in the probability or integrating additional information such consequences of an accident previously cladding protection which ensures that evaluated because equivalent fuel cladding 99.9 percent of all fuel rods will not as equipment operability requirements protection (99.9 percent of all fuel rods do experience transition boiling following a during shutdown conditions, (2) not experience transition boiling following a design basis transient. clarifying requirements such as limiting design basis transient) is provided. The NRC staff has reviewed the conditions for operation and action 2. The operation of Pilgrim Station in licensee’s analysis and, based on this statements utilizing STS terminology, accordance with the proposed amendment review, it appears that the three (3) deleting superseded requirements will not create the possibility of a new or standards of 50.92(c) are satisfied. and modifications to the TS based on different kind of accident from any accident Therefore, the NRC staff proposes to the licensee’s responses to Generic previously evaluated because the proposed determine that the amendment request change does not affect the function of any Letters (GL), and (4) relocating specific structure, system or component. involves no significant hazards items to more appropriate TS locations. 3. The operation of Pilgrim Station in consideration. The September 17, 1993, and July 20, accordance with the proposed amendment Local Public Document Room 1995, applications proposed to upgrade will not involve a significant reduction in a location: Plymouth Public Library, 11 only Section 3/4.7 (Containment margin of safety because the utilization of North Street, Plymouth, Massachusetts Systems) of the Dresden and Quad current General Electric fuel designs provides 02360. Cities TS. an equivalent margin of safety. As stated Attorney for licensee: W. S. Stowe, Basis for proposed no significant previously, equivalent fuel cladding Esquire, Boston Edison Company, 800 protection is provided and ensures that 99.9 hazards consideration determination:As percent of all fuel rods will not experience Boylston Street, 36th Floor, Boston, required by 10 CFR 50.91(a), the transition boiling following a design basis Massachusetts 02199. licensee has provided its analysis of the transient. NRC Project Director: Ledyard B. issue of no significant hazards Section 3.3.C - Scram Insertion Times Marsh consideration, which is presented 1. The operation of Pilgrim Station in Commonwealth Edison Company, below: accordance with the proposed amendment The proposed changes do not involve a will not involve a significant increase in the Docket Nos. 50-237 and 50-249, significant increase in the probability or probability of consequences of an accident Dresden Nuclear Power Station, Units 2 consequences of an accident previously previously evaluated. The correlation of the and 3, Grundy County, Illinois Docket evaluated because: scram insertion times with the actual notch Nos. 50-254 and 50-265, Quad Cities In general, the proposed amendment position will simplify the surveillance Nuclear Power Station, Units 1 and 2, represents the conversion of current procedure while maintaining the accuracy of Rock Island County, Illinois requirements to a more generic format, or the the test. addition of requirements which are based on 2. The operation of Pilgrim Station in Date of application for amendment the current safety analysis. Implementation accordance with the proposed amendment requests: September 17, 1993, as of these changes will provide increased will not create the possibility of a new or supplemented July 20, 1995 reliability of equipment assumed to operate different kind of accident from any accident Description of amendment requests: in the current safety analysis, or provide previously evaluated because no physical As a result of findings by a Diagnostic continued assurance that specified modifications are associated with the Evaluation Team inspection performed parameters remain within their acceptance proposed change and it does not affect the limits, and as such, will not significantly function of any structure, system or by the NRC staff at the Dresden Nuclear increase the probability or consequences of a component. Power Station in 1987, Commonwealth previously evaluated accident. 3. The operation of Pilgrim Station in Edison Company (ComEd, the licensee) Some of the proposed changes represent accordance with the proposed amendment made a decision that both the Dresden minor curtailments of the current 39434 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices requirements which are based on generic a new or different kind of accident do not involve a significant reduction in the guidance or previously approved provisions previously evaluated for Dresden or Quad margin of safety. for other stations. The proposed amendment Cities Stations. No new modes of operation The proposed amendment for Dresden and for Dresden and Quad Cities Station’s are introduced by the proposed changes. Quad Cities Stations will not reduce the Technical Specification Section 3/4.7 is Surveillance requirements are changed to availability of systems associated with the based on STS guidelines or later operating reflect improvements in technique, frequency Containment Systems when required to BWR plants’ NRC accepted changes. Any of performance or operating experience at mitigate accident conditions; therefore, the deviations from STS requirements do not later plants. Proposed changes to action proposed changes do not involve a significantly increase the probability or statements in many places add requirements significant reduction in the margin of safety. consequences of any previously evaluated that are not in the present technical The NRC staff has reviewed the accidents for Dresden or Quad Cities specifications. The proposed changes licensee’s analysis and, based on this Stations. The proposed amendment is maintain at least the present level of review, it appears that the three consistent with the current safety analyses operability. Therefore, the proposed changes standards of 10 CFR 50.92(c) are and has been previously determined to do not create the possibility of a new or satisfied. Therefore, the NRC staff represent sufficient requirements for the different kind of accident from any assurance and reliability of equipment previously evaluated. proposes to determine that the assumed to operate in the safety analysis, or The associated systems that make up the amendment requests involve no provide continued assurance that specified Containment Systems are not assumed in any significant hazards consideration. parameters remain within their acceptance safety analysis to initiate any accident Local Public Document Room limits. As such, these changes will not sequence for Dresden or Quad Cities Stations. location: for Dresden, Morris Public significantly increase the probability or In addition, the proposed surveillance Library, 604 Liberty Street, Morris, consequences of a previously evaluated requirements for affected systems associated Illinois 60450; for Quad Cities, Dixon accident. with the Containment Systems are generally Public Library, 221 Hennepin Avenue, The associated systems that make up the more prescriptive than the current Dixon, Illinois 61021 Containment Systems are not assumed in any requirements specified within the Technical Attorney for licensee: Michael I. safety analysis to initiate any accident Specifications; therefore, the proposed sequence for Dresden or Quad Cities Stations; changes do not create the possibility of a new Miller, Esquire; Sidley and Austin, One therefore, the probability of any accident or different kind of accident from any First National Plaza, Chicago, Illinois previously evaluated is not increased by the previously evaluated. 60690 proposed amendment. In addition, the Involve a significant reduction in the NRC Project Director: Robert A. Capra proposed surveillance requirements for the margin of safety because: Connecticut Yankee Atomic Power proposed amendments to these systems are In general, the proposed amendment generally more prescriptive than the current represents the conversion of current Company, and Northeast Nuclear requirements specified within the Technical requirements to a more generic format, or the Energy Company, et al., Docket Nos.50- Specifications. The additional surveillance addition of requirements which are based on 213, 50-245, 50-336, and 50-423 requirements improve the reliability and the current safety analysis. Other changes Haddam Neck Plant, and Millstone availability of all affected systems and, represent minor curtailments of the current Nuclear Power Station, Units 1,2, and therefore, reduce the consequences of any requirements which are based on generic 3, Middlesex County and New London accident previously evaluated, as the guidance or previously approved provisions County, Connecticut probability of the systems outlined within for other stations. Some of the later Section 3/4.7 of the proposed Technical individual items may introduce minor Date of amendment request: June 6, Specifications performing their intended reductions in the margin of safety when 1995 function is increased by the additional compared to the current requirements. Description of amendment request: surveillances. However, other individual changes are the The proposed amendment will modify Create the possibility of a new or different adoption of new requirements which will the size of the Plant Operations Review kind of accident from any previously provide significant enhancement of the Committee (PORC) which will evaluated because: reliability of the equipment assumed to collectively have the experience and In general, the proposed amendment operate in the safety analysis, or provide expertise in various areas of plant represents the conversion of current enhanced assurance that specified operation, and will clarify the requirements to a more generic format, or the parameters remain with their acceptance addition of requirements which are based on limits. These enhancements compensate for composition of the Site Operations the current safety analysis. Other changes the individual minor reductions, such that Review Committee (SORC). represent minor curtailments of the current taken together, the proposed changes will not Basis for proposed no significant requirements which are based on generic significantly reduce the margin of safety. hazards consideration determination:As guidance or previously approved provisions The proposed amendment to Technical required by 10 CFR 50.91(a), the for other stations. These changes do not Specification Section 3/4.7 implements licensee has provided its analysis of the involve revisions to the design of the station. present requirements, or the intent of present issue of no significant hazards Some of the changes may involve revision in requirements in accordance with the consideration (SHC), which is presented the operation of the station; however, these guidelines set forth in the STS. Any below: provide additional restrictions which are in deviations from STS requirements do not These proposed changes do not involve an accordance with the current safety analysis, significantly reduce the margin of safety for SHC because the changes do not: or are to provide for additional testing or Dresden or Quad Cities Stations. The 1. Involve a significant increase in the surveillances which will not introduce new proposed changes are intended to improve probability or consequences of an accident failure mechanisms beyond those already readability, usability, and the understanding previously evaluated. considered in the current safety analyses. of technical specification requirements while The PORC is an oversight group and helps The proposed amendment for Dresden and maintaining acceptable levels of safe to ensure that the units are operated in a safe Quad Cities Station’s Technical Specification operation. The proposed changes have been manner. To accomplish this the PORCs Section 3/4.7 is based on STS guidelines or evaluated and found to be acceptable for use provide their recommendations on the safety later operating BWR plants’ NRC accepted at Dresden or Quad Cities based on system related activities to the Vice President - changes. The proposed amendment has been design, safety analysis requirements and Haddam Neck Plant for Haddam Neck and to reviewed for acceptability at the Dresden or operational performance. Since the proposed the respective Nuclear Unit Directors for Quad Cities Nuclear Power Stations changes are based on NRC accepted Millstone. Each Millstone considering similarity of system or provisions at other operating plants that are Unit has its own PORC. It is proposed that component design versus the STS or later applicable at Dresden or Quad Cities and the members of the operating BWRs. Any deviations from STS maintain necessary levels of system or PORC be selected by the respective Nuclear requirements do not create the possibility of component reliability, the proposed changes Unit Director based on their knowledge and Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39435 expertise in specific key plant functions. The The proposed modification does not A. Involve a significant increase in the Millstone Station has one SORC. The SORC impact any initiating events, and, therefore, probability or consequences of an accident is also an oversight group whose charter is cannot create the possibility of any new or previously evaluated. to advise the Senior Vice President - different kind of accident from any accident This change does not affect the probability Millstone Station on all matters related to previously evaluated. or consequences of an accident. The changes nuclear safety at the Millstone site. The 3. Involve a significant reduction in a are administrative, deleting an unnecessary Haddam Neck Plant, being a single unit site, margin of safety. specification on staff training requirements, has one PORC, which advises the Vice These proposed administrative changes eliminating the specific references to the President - Haddam Neck Plant. The will not impact the margin of safety provided Nuclear Engineering and Construction members of the Haddam Neck Plant PORC by PORC and SORC. The PORC and SORC Organization (NECO) staff, and requiring that will be selected by the Vice President - will continue to be staffed by qualified the Plant Review Committee (PRC) chairman, Haddam Neck Plant based on their individuals experienced in the operation of alternate chairman, and members be knowledge and expertise in specific key the plants. These administrative changes will designated in administrative procedures by plant functions. The PORC and SORC add to modify how the composition of the PORC the Plant General Manager. Further the defense-in-depth concept provided by the and SORC members are presented in the administrative changes clarify the function of design, operation, maintenance, and quality technical specifications, but will not the Plant Safety and Licensing organization oversight by promoting excellence through adversely impact their ability to review and and eliminate the numerical requirement for the conduct of their affairs and by comment on operations at the units. five staff members to fulfill the organization maintaining a diligent watch over their These changes do not impact any function. responsibilities. protective boundaries nor do they impact the The removal of an obsolete staff training requirement does not diminish the regulatory These administrative changes will revise safety limits for the protective boundaries. requirement to have an adequately trained the composition section of the technical These proposed changes are administrative staff. The accredited training programs for specifications for the PORC members. in nature. Therefore, there is no reduction in the plant staff ensure an appropriate level of Millstone Unit individuals will be appointed the margin of safety. training is conducted to maintain an by the Nuclear Unit Directors if the The NRC staff has reviewed the individual meets one or more of the appropriate skill and knowledge base for the licensee’s analysis and, based on this staff. The requirements of 10CFR55 provide following areas of expertise: Plant review, it appears that the three Operations, Engineering, Reactor the necessary rules for operator licenses. Engineering, Maintenance, Instrumentation standards of 10 CFR 50.92(c) are Since a trained staff will be maintained, there and Controls, Health Physics, Chemistry, satisfied. Therefore, the NRC staff will [be] no increase in the probability or consequences of an accident as a result of Work Planning and Control, and Quality proposes to determine that the this change. Services. The Haddam Neck Plant, due to its amendment request involves no The composition of the PRC will not be broader scope of review also include[s] an significant hazards consideration. affected by this change as it will, at a individual experienced in Security and Local Public Document Room minimum, be comprised of personnel from specific experience in Electrical Maintenance location: Russell Library, 123 Broad the operations, engineering, radiological and Mechanical Maintenance. The Street Middletown, Copnnecticut 06457, services and maintenance departments as individuals who will serve on PORC shall for the Haddam Neck Plant, and the required by the Technical Specifications. The continue to meet the criteria of ANSI N18.1- composition of the Plant Safety and 1971. This approach is consistent with the Learning Resources Center, Three Rivers Community-Technical College, 574 New Licensing organization as a whole may standard technical specifications and NUREG change. The function of the organization as 0800, Section 13.4. For SORC at the London Turnpike, Norwich, CT 06360, for Millstone 1, 2, and 3. it relates to these Technical Specifications, Millstone Station, the method of identifying however, will not be affected. These changes who shall serve as Vice Chairperson has been Attorney for licensee: Ms. L. M. have no affect on the plant accident analyses. modified for clarity. The Site Services Cuoco, Senior Nuclear Counsel, Qualified personnel will continue to conduct Director position is proposed to be Northeast Utilities Service Company, the PRC and Plant Safety and Licensing eliminated since this position no longer Post Office Box 270, Hartford, CT reviews. Therefore, the changes do not exists. The functions previously performed 06141-0270. increase the probability or consequences of by this individual have been assumed by NRC Project Director: Phillip F. an accident. those individuals who currently serve on McKee B. Create the possibility of a new or SORC. Finally, [the TS relating to] the different kind of accident from any individual who shall represent Quality and Consumers Power Company, Docket previously evaluated. Assessment Services shall be modified to No. 50-255, Palisades Plant, Van Buren The proposed changes are administrative allow a qualified member of Quality and County, Michigan and do not create the possibility of a new or Assessment Services to serve on SORC. different kind of accident. Staff training will The remaining portions of the technical Date of amendment request: July 5, continue to meet the accreditation specifications related to PORC and SORC are 1995 requirements of the National Academy for not being revised. Description of amendment request: Nuclear Training Accreditation Board and These modifications broaden the unit The proposed amendment would the requirements for the Systematic committee participation and reflect current change the Administrative Controls Approach to Training. Operators’ license organizational positions and will not increase section of the Palisades Technical training will continue to meet the regulatory the probability of occurrence or the Specifications. The changes involve requirements of 10CFR55. Activities consequences of an accident previously conducted by the Plant Review Committee evaluated. deleting training requirements in the and the Plant Safety and Licensing staff will 2. Create the possibility of a new or Administrative Controls section, continue to be accomplished by a staff which different kind of accident from any accident revising the Plant Review Committee meets the qualification requirements of the previously evaluated. composition, and revising the function Technical Specifications. These The proposed administrative and composition of the plant safety and administrative changes will not affect the enhancements to the composition of the licensing staff review requirements. operation of the plant or the safety function PORC and Millstone Station SORC will not Basis for proposed no significant of plant equipment nor will it affect the affect the way in which the units are hazards consideration determination:As quality of the review activities. Therefore, physically operated. These administrative required by 10 CFR 50.91(a), the there will be no possibility that a new or changes to PORC and SORC continue to meet different kind of accident will be created. the guidelines of ANSI N18.7-1976. The licensee has provided its analysis of the C. Involve a significant reduction in a modifications to PORC and SORC continue to issue of no significant hazards margin of safety. allow these groups to provide a thorough consideration, which is presented The changes do not affect installed plant review of activities at the units. below: equipment nor do they affect plant 39436 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices operations. These administrative changes related requirements to improve the Positive and High Negative Rate functions. have not affected the probability or understanding and consistency by generally The new action is modified by Note (3) to consequences of a previously analyzed incorporating the Improved Standard allow bypassing the inoperable channel for accident or created the possibility of a new Technical Specification (ISTS) requirements surveillance testing and setpoint adjustment or different kind [of] accident from any of NUREG-1431. and by Note (4) that only requires performing previously evaluated. Therefore, they do not Editorial changes have been incorporated SR 4.2.4 when the power range high neutron involve any reduction in the margin of safety. throughout the proposed specifications to flux channel input to QPTR is inoperable. The NRC staff has reviewed the address ISTS or plant specific convention The new action does not require reducing the licensee’s analysis and, based on this and do not affect the accident analyses. The power range neutron flux setpoint like the review, it appears that the three QPTR definition has been modified to reflect current action since the proposed action is to the ISTS wording and eliminate the perform the QPTR surveillance or shutdown standards of 10 CFR 50.92(c) are inconsistency with SR 4.2.4.c. This change which is more conservative than the current satisfied. Therefore, the NRC staff does not reduce the QPTR testing action requirement, otherwise, the new proposes to determine that the requirements or affect the accident analyses action requires essentially the same steps to amendment request involves no assumptions. The current action statements be performed as the current action. significant hazards consideration. require power reduction along with a Therefore, the proposed action will not affect Local Public Document Room reduction in power range high neutron flux the accident analyses or involve a significant location: Van Wylen Library, Hope trip setpoints when the QPTR exceeds the increase in the probability or consequences College, Holland, Michigan 49423. limit. This ensures the core conditions are of an accident previously evaluated. Attorney for licensee: Judd L. Bacon, consistent with the accident analyses These changes are proposed to allow assumptions. With the modified action flexibility in plant operations by modifying Esquire, Consumers Power Company, statements and the QPTR exceeding the limit, the QPTR action and surveillance 212 West Michigan Avenue, Jackson, power reduction is also required along with requirements to allow separation of a power Michigan 49201 performing a flux map to verify the peaking range channel into the NIS portion and the NRC Project Director: John N. Hannon factors are within the accident analyses excore detector portion. The modified action assumptions. In addition, the safety analyses and surveillance requirements continue to Duquesne Light Company, et al., Docket must be re-evaluated to confirm the results provide monitoring of those parameters No. 50-334, Beaver Valley Power remain valid prior to increasing power with required to ensure the core is operating Station, Unit No. 1, Shippingport, an indicated tilt condition. The new action safely. Since these changes are not Pennsylvania statements provide methods different from significantly different from the current Date of amendment request: October the current requirements. However, they requirements and no change is being satisfy the same objective, to ensure the introduced that would affect the accident 11, 1994, as supplemented June 23, conditions assumed in the accident analyses analyses assumptions, we have concluded 1995. are maintained. Therefore, these changes will that the proposed change does not involve a Description of amendment request: not involve significant increase in the significant increase in the probability or The proposed amendments would probability or consequences of an accident consequences of an accident previously revise Beaver Valley Power Station, Unit previously evaluated. evaluated. Nos. 1 and 2 (BVPS-1 and BVPS-2) The current surveillance requirements 2. Does the change create the possibility of Technical Specifications (TSs) 1.18, define the methods and frequencies for a new or different kind of accident from any ‘‘Quadrant Power Tilt Ratio,’’ 3/4.2.4, verifying the QPTR is within the limit accident previously evaluated? ‘‘Quadrant Power Tilt Ratio,’’ the Table specified in the limiting condition for The proposed changes incorporate operation. The proposed SRs include modifications generally consistent with the Notation of TS Table 3.3.-1, ‘‘Reactor associated notes that allow separation of a ISTS QPTR requirements to ensure the core Trip System Instrumentation,’’ and power range channel into two portions made- power distribution is adequately monitored. associated Bases to incorporate the up of the Nuclear Instrumentation System The revised action statements provide for guidance provided in the NRC’s (NIS) and the excore detector portion. If an peaking factor verification as a logical Improved Standard Technical excore detector portion of a power range compensatory measure to ensure the core is Specifications (NUREG-1431) applicable channel is inoperable, then the power range operating within required limits. This is to these TSs. The proposed amendments channel is inoperable since the detector more conservative than the current would clarify the requirements of the provides input to the NIS which inputs to the requirements and provides additional subject TSs with regard to the use of solid state protection system. However, if the assurance that Specification 3.2.4 will excore detector is operable and the NIS is continue to govern the QPTR limitations in excore power range neutron flux inoperable, then the power range channel is a manner consistent with the accident detectors to monitor quadrant power tilt inoperable but the ability to monitor the analyses assumptions. The revised SR ratio when an excore power range QPTR is unaffected. When the NIS portion of provides clear and understandable testing neutron flux instrument is inoperable. a channel is inoperable, appropriate actions requirements to reduce confusion concerning The proposed change would also make are applied in accordance with Specification how the QPTR is to be monitored based on several minor editorial changes in the 3.3.1. The new SRs continue to require the plant conditions. The proposed change does subject TSs. same testing and frequencies as the current not introduce any new mode of plant Basis for proposed no significant SRs along with reducing the need to interpret operation or require any physical hazards consideration determination:As the requirements when special conditions modification to the plant, therefore, this exist. Therefore, the proposed SRs will not change will not create the possibility of a required by 10 CFR 50.91(a), the affect the accident analyses or significantly new or different kind of accident from any licensee has provided its analysis of the increase the probability or consequences of accident previously evaluated. issue of no significant hazards an accident previously evaluated. 3. Does the change involve a significant consideration, which is presented Table 3.3-1 Action 2 applies when a power reduction in a margin of safety? below: range channel is inoperable. This action has The QPTR limit ensures that the gross 1. Does the change involve a significant been reformatted to incorporate changes radial power distribution is maintained increase in the probability or consequences similar to those adopted in the QTPR SR within the assumptions used in the safety of an accident previously evaluated? which allow separation of a power range analyses. The QPTR is one of the variables The existing quadrant power tilt ratio channel into the NIS portion and the excore that is monitored to ensure the core operates (QPTR) definition and Surveillance detector portion. Proposed Action 2.a applies within the bounds used in the safety Requirement (SR) 4.2.4.c are inconsistent to an inoperable power range high neutron analyses. When the QPTR is maintained concerning reactor power limitations when flux channel and Action 2.b applies to ‘‘all below 1.02 it provides an indication that the performing QPTR surveillance requirements. other channels’’ which includes the Low peaking factors are within the limiting values The proposed change modifies these and Setpoint function along with the High by preventing and undetected change in the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39437 gross radial power distribution. The containment building. Extending the Attorney for licensee: Nicholas S. proposed changes ensure the required minimum decay time actually decreases the Reynolds, Esquire, Winston and Strawn, parameters are verified during the applicable consequences of a fuel handling accident by 1400 L Street, N.W., Washington, DC conditions and on a consistent basis, reducing the radioactive inventory of the irradiated fuel which could possibly be 20005-3502 therefore, these changes will not reduce the NRC Project Director: William D. margin of safety. released during a fuel handling accident. The BecknerEntergy Operations, Inc., Docket The NRC staff has reviewed the revised fuel handling accident analysis No. 50-368, Arkansas Nuclear One, Unit licensee’s analysis and, based on this results in maximum offsite doses of 43.4 Rem and 41.8 Rem to the thyroid and 0.616 Rem No. 2, Pope County, Arkansas review, it appears that the three and 0.598 Rem to the whole body for ANO- Date of amendment request: March standards of 10 CFR 50.92(c) are 1 and ANO-2, respectively. The calculated 17, 1995 satisfied. Therefore, the NRC staff offsite doses are well within the limits of Description of amendment request: proposes to determine that the 10CFR Part 100. Also, the calculated doses The proposed amendment revises amendment request involves no are larger than the actual doses which would requirements associated with channel significant hazards consideration. be expected during a fuel handling accident because the calculation does not incorporate functional tests of the core protection Local Public Document Room calculator following a high temperature location: B. F. Jones Memorial Library, the closing of at least one of the personnel airlock doors following evacuation of alarm. 663 Franklin Avenue, Aliquippa, containment. The proposed change would Basis for proposed no significant Pennsylvania 15001 significantly reduce the dose to workers in hazards consideration determination:As Attorney for licensee: Jay E. Silberg, the containment in the event of a fuel required by 10 CFR 50.91(a), the Esquire, Shaw, Pittman, Potts & handling accident by expediting the licensee has provided its analysis of the Trowbridge, 2300 N Street, NW., containment evacuation process. issue of no significant hazards Therefore, this change does not involve a Washington, DC 20037 consideration, which is presented NRC Project Director: John F. Stolz significant increase in the probability or consequences of any accident previously below: Entergy Operations, Inc., Docket Nos. evaluated. Criterion 1 - Does Not Involve a Significant 50-313 and 50-368, Arkansas Nuclear Criterion 2 - Does Not Create the Possibility Increase in the Probability or Consequences of a New or Different Kind of Accident from of an Accident Previously Evaluated. One, Unit Nos. 1 and 2 (ANO-1&2), The core protection calculators (CPCs) are Pope County, Arkansas any Previously Evaluated. The proposed change does not involve the not accident initiators, therefore this change Date of amendment request: May 19, addition or modification of any plant does not increase the probability of an 1995 equipment. Also, the proposed change would accident previously evaluated. Description of amendment request: not alter the design, configuration, or method The core protection calculators (CPCs) are dedicated minicomputers that receive key The proposed amendments revise the of operation of the plant. Therefore, this change does not create the parameters necessary to calculate the specifications to permit the reactor possibility of a new or different kind of departure from nucleate boiling ratio (DNBR) building personnel airlock doors to accident from any previously evaluated. and local power density (LPD) and issue a remain open during fuel handling. Criterion 3 - Does Not Involve a Significant reactor trip command prior to reaching plant Basis for proposed no significant Reduction in the Margin of Safety. conditions that may damage the fuel in the hazards consideration determination:As This proposed change has the potential for reactor. Subjecting a computer to elevated required by 10 CFR 50.91(a), the an increased dose at the site boundary due temperatures may affect the reliability of the licensee has provided its analysis of the to a fuel handling accident; however, the computer calculations. This change in the dose remains within acceptable limits. The Arkansas Nuclear One-Unit 2 (ANO-2) issue of no significant hazards margin of safety as defined by 10CFR Part Technical Specifications (TS) will require a consideration, which is presented 100 has not been significantly reduced. There verification of the CPC operability, by the below: is an increase in the calculated offsite dose performance of a channel functional test, in Criterion 1 - Does Not Involve a Significant resulting from a fuel handling accident; the event a cabinet high temperature switch Increase in the Probability or Consequences however, the increase is not significant and is actuated. This is a more accurate of an Accident Previously Evaluated. is well within the limits specified in 10 CFR indication of the operating environment of The proposed change would allow the Part 100. The overall significance will be the CPCs than the current requirement to containment personnel airlock doors to offset by the increased minimum decay time, perform the test based upon room remain open during fuel movement and core the decreased potential radiation dose to temperature. The ability of the CPCs to alterations. These doors are normally closed workers, and the increased availability of the monitor DNBR and LPD and issue a trip during this time period in order to prevent personnel airlock door in the event of a fuel command when appropriate will not be the escape of radioactive material in the handling accident. Closing at least one of the affected in any way by this change, therefore event of a fuel handling accident. These personnel airlock doors following an the consequences of an accident previously doors are not initiators of any accident. The evacuation of containment, further reduces evaluated are not increased. probability of a fuel handling accident is the offsite doses in the event of a fuel Therefore, this change does not involve a unaffected by the position of the containment handling accident which partially significant increase in the probability or personnel airlock doors. compensates for the higher offsite doses consequences of any accident previously The proposed change alters assumptions calculated as a result of this proposed evaluated. made in evaluating the radiological change. Criterion 2 - Does Not Create the Possibility consequences of a fuel handling accident Therefore, this change does not involve a of a New or Different Kind of Accident from inside the reactor containment building. significant reduction in the margin of safety. any Previously Evaluated. Allowing the containment personnel airlock The NRC staff has reviewed the Because the proposed changes do not alter doors to remain open during fuel movement licensee’s analysis and, based on this the design, configuration, or method of and core alterations does increase, however review, it appears that the three operation of the plant, they do not create the not significantly, the consequences of a fuel standards of 10 CFR 50.92(c) are possibility of a new or different kind of handling accident inside containment. satisfied. Therefore, the NRC staff accident from any previously evaluated. Previously, the fuel handling accident inside Criterion 3 - Does Not Involve a Significant containment was bounded by the fuel proposes to determine that the Reduction in the Margin of Safety. handling accident analysis in the spent fuel amendment request involves no These proposed changes do not alter the pool area of the auxiliary building. Part of the significant hazards consideration. acceptance criteria of any surveillance dose increase has been offset by the increase Local Public Document Room requirements. The changes do not alter any in the minimum decay time before irradiated location: Tomlinson Library, Arkansas assumptions used in accident analysis, fuel may be moved inside the reactor Tech University, Russellville, AR 72801 change any actuation setpoints, nor allow 39438 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices operations in any configuration not required for a containment air lock door to Criterion 2 - Does Not Create the Possibility previously analyzed. This change will trigger be open for ingress or egress does not exceed of a New or Different Kind of Accident from a verification of affected CPC operability two to three minutes. The amendment any Previously Evaluated. based on cabinet temperature instead of room provision to allow unlocking and opening an Because the proposed changes do not temperature, which is a more accurate operable air lock door for ingress and egress change the design, configuration, or method indication of the operating environment of to facilitate air lock maintenance necessary to of operation of the plant, they do not create the CPC computer. Therefore, this change restore operability does not increase the the possibility of a new or different kind of does not involve a significant reduction in consequences of any previously evaluated accident from any previously evaluated. the margin of safety. accident since the time necessary for the door Criterion 3 - Does Not Involve a Significant The NRC staff has reviewed the to be open is bounded by the existing one Reduction in the Margin of Safety. licensee’s analysis and, based on this hour time allowance for an actual breech of The proposed changes to ANO-2 TS containment integrity (TS 3.6.1.1.) review, it appears that the three involve allowing brief breaches in The containment air lock interlock containment integrity for the purpose of standards of 10 CFR 50.92(c) are functions to prevent simultaneous opening of repairing inoperable air lock components or satisfied. Therefore, the NRC staff both air lock doors thereby creating a breech performing surveillances required by 10 CFR proposes to determine that the in containment integrity. A dedicated 50, Appendix J. These cases are adequately amendment request involves no individual stationed at the air lock to bounded by the one hour allowable outage significant hazards consideration. administratively control door operations, or time afforded by TS 3.6.1.1. Local Public Document Room locking closed an operable door will The addition of a specific action statement location: Tomlinson Library, Arkansas adequately assure containment integrity. The addressing an inoperable air lock interlock addition of this technical specification action provides those actions necessary to assure Tech University, Russellville, AR 72801 statement, therefore, does not increase the Attorney for licensee: Nicholas S. the maintenance of containment integrity. consequences of any previously evaluated This is achieved by locking an operable door Reynolds, Esquire, Winston and Strawn, accident. in the affected air lock when not in use and 1400 L Street, N.W., Washington, DC Performance of the overall air lock leakage stationing a dedicated individual at the air 20005-3502 test requires opening the outer air lock door lock, during periods of ingress and egress, NRC Project Director: William D. for installation of the mechanical dogging whose sole responsibility is to insure only Beckner devices on the inner door. The current one air lock door is opened at a time thereby technical specifications make no provisions duplicating the function of the mechanical Entergy Operations, Inc., Docket No. for this entry and thus would require a plant interlock. 50-368, Arkansas Nuclear One, Unit shutdown if the inner door was inoperable in The proposed changes also consist of No. 2, Pope County, Arkansas an air lock. The proposed amendment administrative changes removing an outdated removes the requirement to shut down when Date of amendment request: April 4, exemption to 10 CFR 50, Appendix J and the barrel leak rate is due. The time required removing specific surveillance requirements 1995 for the containment air lock doors to be from the specifications, instead referring to Description of amendment request: opened for dog installation would be the the controlling requirements of 10 CFR 50, same as for ingress and egress as discussed The proposed amendment revises Appendix J. This is consistent with the above, therefore this change does not operating criteria and requirements provisions of NUREG 1432 ‘‘Revised increase the consequences of any previously associated with containment personnel Standard Technical Specifications for evaluated accident. Combustion Engineering Plants,’’ Rev. 0. air locks. 10 CFR 50, Appendix J contains None of the proposed changes increase the Basis for proposed no significant containment leakage testing requirements, allowable overall air lock leakage rate, nor hazards consideration determination:As including specific requirements for affect the acceptance criteria of the overall required by 10 CFR 50.91(a), the containment building air locks. Changing the integrated containment leakage rate. All of licensee has provided its analysis of the TS surveillance requirements to refer to 10 the changes are bounded by existing analyses issue of no significant hazards CFR 50, Appendix J for these test requirements will not degrade these tests, for all evaluated accidents and do not create consideration, which is presented any situations that alter the assumptions below: therefore this change does not increase the consequences of any previously evaluated used in these analyses. Therefore, this change Criterion 1 - Does Not Involve a Significant does not involve a significant reduction in Increase in the accident. The air lock door seal pressure test is the margin of safety. performed any time the air lock is used for The NRC staff has reviewed the Probability or Consequences of an containment access during modes of licensee’s analysis and, based on this Accident Previously Evaluated. operation when containment integrity is review, it appears that the three The containment air locks are passive required. The door seal test is intended to be standards of 10 CFR 50.92(c) are components integral to the containment a gross test to verify that the door seals were satisfied. Therefore, the NRC staff structure and are not evaluated to be accident not damaged during the opening and closing proposes to determine that the initiators, therefore, the proposed cycle(s). This test does not replace the amendment does not involve an increase in amendment request involves no required overall barrel leakage test. Based on significant hazards consideration. the probability of an accident previously information provided by the air lock vendor, evaluated. a test pressure of 10 psig is sufficient to Local Public Document Room Each air lock door is rated for and tested perform this gross seal verification. A change location: Tomlinson Library, Arkansas to full design pressure of the containment in the allowable leakage rate is requested to Tech University, Russellville, Arkansas building. If one door were inoperable in each remove a specific numerical value from the 72801 air lock, the remaining door, since required TS surveillance requirements section and Attorney for licensee: Nicholas S. to remain closed and locked, would provide replace it with a fraction of LaG. This new Reynolds, Esquire, Winston and Strawn, the necessary fission product barrier to acceptable leakage rate remains relatively 1400 L Street, N.W., Washington, D.C. prevent an uncontrolled release, therefore the insignificant and is bounded by the overall 20005-3502 amendment allowance for an inoperable air air lock leakage rate. Based on these facts this NRC Project Director: William D. lock door in each air lock does not increase change in test pressure and associated Beckner the consequences of any previously acceptance criteria does not increase the evaluated accident. consequences of any previously evaluated Entergy Operations, Inc., Docket No. During a situation where one containment accident. 50-368, Arkansas Nuclear One, Unit air lock door is inoperable and the operable Therefore, this change does not involve a No. 2, Pope County, Arkansas door is opened, a breech in containment significant increase in the probability or integrity would essentially exist while the consequences of any accident previously Date of amendment request: May 19, operable door remains open. The time evaluated. 1995 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39439 Description of amendment request: been conducted in the past at ANO-2. The the event of a loss of offsite power. EDGs are The proposed amendment adds criteria method of inspection, pushing or pulling a not an accident initiator in any accident to address optional inspections of steam probe through the steam generator tubes from previously evaluated. Therefore, this change generator tubes. the primary side, is the same method does not involve an increase in the Basis for proposed no significant employed for the current technical probability of an accident previously specification required inspections. Inspection evaluated. hazards consideration determination:As methodology is not being changed by The EDGs provide backup power to required by 10 CFR 50.91(a), the incorporation of these special interest groups components that mitigate the consequences licensee has provided its analysis of the into the technical specifications. No design of accidents. The proposed changes to issue of no significant hazards or operational characteristics of the plant are allowed outage times (AOTs) do not affect consideration, which is presented changed by the proposed amendment. any of the assumptions used in deterministic below: Therefore, this change does not create the safety analysis. Criterion 1 - Does Not Involve a Significant possibility of a new or different kind of In order to fully evaluate the EDG AOT Increase in the Probability or Consequences accident from any previously evaluated. extension, probabilistic safety analysis of an Accident Previously Evaluated. Criterion 3 - Does Not Involve a Significant methods were utilized. The results of these Steam generator tubes are inspected on a Reduction in the Margin of Safety. analyses indicate no significant increase in periodic basis to reduce the probability of a The proposed amendment adds special the consequences of an accident previously steam generator tube rupture or tube leakage. interest groups for optional inspection into evaluated. These analyses are detailed in CE Five special interest groups are being added the technical specifications. These NPSD-996, Combustion Engineering Owners for optional inspections in addition to the inspections concentrate on areas of interest Group ‘‘Joint Applications Report for general tube inspections currently required using inspection methodology that is Emergency Diesel Generators AOT by the technical specifications. These special equivalent or better at finding specific types Extension.’’ interest groups define areas of tubes where of flaws than the methodology used for the Therefore, this change does not involve a known or potential degradation mechanisms currently required general tube inspections. significant increase in the probability or may exist for which additional inspection, If the special interest groups are not consequences of any accident previously above that currently required in the technical inspected, the existing technical specification evaluated. specifications, may be beneficial. Inspection requirements for inspection still apply. Criterion 2 - Does Not Create the Possibility of these special interest groups may utilize Therefore, this change does not involve a of a New or Different Kind of Accident from probes which more readily detect indications significant reduction in the margin of safety. any Previously Evaluated. which may be found in the special interest The NRC staff has reviewed the This proposed change does not alter the areas. The increased detection capability will licensee’s analysis and, based on this design, configuration, or method of operation reduce the probability that a structurally of the plant. Therefore, this change does not review, it appears that the three create the possibility of a new or different significant flaw will go undetected during an standards of 10 CFR 50.92(c) are inspection. The minimum sample size and kind of accident from any previously expansion criteria (should a flaw be found) satisfied. Therefore, the NRC staff evaluated. for inspections of special interest groups are proposes to determine that the Criterion 3 - Does Not Involve a Significant based on percentages of tubes potentially amendment request involves no Reduction in the Margin of Safety. affected by the specific degradation significant hazards consideration. The proposed changes do not affect the mechanisms for which the special inspection Local Public Document Room technical specification limiting conditions is being performed. The percentages used are location: Tomlinson Library, Arkansas for operation or their bases which support the same as used for the current general tube the deterministic analyses used to establish Tech University, Russellville, AR 72801 the margin of safety. Evaluations used to inspections. The expansion criteria allow Attorney for licensee: Nicholas S. expansion within the area of interest without support the requested technical specification affecting the expansions of any general tube Reynolds, Esquire, Winston and Strawn, changes have been demonstrated to be either inspection. By expanding within the area of 1400 L Street, N.W., Washington, DC risk neutral or risk beneficial. These interest, a more complete inspection for the 20005-3502 evaluations are detailed in CE NPSD-996. defects caused by a specific degradation NRC Project Director: William D. Therefore, this change does not involve a mechanism can be performed than if the Beckner significant reduction in the margin of safety. expansion were conducted in tubes not The NRC staff has reviewed the necessarily affected by the degradation Entergy Operations, Inc., Docket No. licensee’s analysis and, based on this mechanism, which is possible with the 50-368, Arkansas Nuclear One, Unit review, it appears that the three current technical specifications. Therefore, No. 2, Pope County, Arkansas standards of 10 CFR 50.92(c) are this change does not involve a significant Date of amendment request: May 19, satisfied. Therefore, the NRC staff increase in the probability of an accident 1995 proposes to determine that the previously considered. amendment request involves no The proposed change does not increase the Description of amendment request: amount of radioactive material available for The proposed amendment increases the significant hazards consideration. release or modify any systems used for allowed outage time for an emergency Local Public Document Room mitigation of such releases during accident diesel generator from 72 hours to seven location: Tomlinson Library, Arkansas conditions. The steam generator tubing will days. Additionally, the amendment Tech University, Russellville, AR 72801 continue to be examined on the frequency authorizes one, ten-day diesel generator Attorney for licensee: Nicholas S. currently specified in the technical maintenance outage every fuel cycle. Reynolds, Esquire, Winston and Strawn, specifications. This change will allow steam Basis for proposed no significant 1400 L Street, N.W., Washington, DC generator examinations to focus on known hazards consideration determination:As 20005-3502 areas of interest without requiring required by 10 CFR 50.91(a), the NRC Project Director: William D. unnecessary expansion. The integrity of the Beckner steam generators will continue to be assured licensee has provided its analysis of the at an equivalent level. Therefore, the change issue of no significant hazards Entergy Operations, Inc., Docket No. does not involve a significant increase in the consideration, which is presented 50-368, Arkansas Nuclear One, Unit consequences of any accident previously below: No. 2, Pope County, Arkansas evaluated. Criterion 1 - Does Not Involve a Significant Criterion 2 - Does Not Create the Possibility Increase in the Probability or Consequences Date of amendment request: May 19, of a New or Different Kind of Accident from of an Accident Previously Evaluated. 1995 any Previously Evaluated. The emergency diesel generators (EDGs) Description of amendment request: Special inspections such as the ones being are backup alternating current power sources The proposed amendment increases the added to the technical specifications have designed to power essential safety systems in allowed outage time for an inoperable 39440 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Safety Injection Tank (SIT) from one The NRC staff has reviewed the Criterion 3 - Does Not Involve a Significant hour to 24 hours. Additionally, the licensee’s analysis and, based on this Reduction in the Margin of Safety. amendment limits power operation to review, it appears that the three The proposed changes do not affect the 72 hours when certain SIT related standards of 10 CFR 50.92(c) are technical specification limiting conditions for operation or their bases which support instrument functions are inoperable. satisfied. Therefore, the NRC staff the deterministic analyses used to establish Basis for proposed no significant proposes to determine that the the margin of safety. Probabilistic evaluations hazards consideration determination:As amendment request involves no used to support the requested technical required by 10 CFR 50.91(a), the significant hazards consideration. specification changes have been licensee has provided its analysis of the Local Public Document Room demonstrated to be either risk neutral or risk issue of no significant hazards location: Tomlinson Library, Arkansas beneficial. These evaluations are detailed in CE NPSD-995. consideration, which is presented Tech University, Russellville, AR 72801 Attorney for licensee: Nicholas S. Therefore, this change does not involve a below: significant reduction in the margin of safety. Criterion 1 - Does Not Involve a Significant Reynolds, Esquire, Winston and Strawn, 1400 L Street, N.W., Washington, D.C. The NRC staff has reviewed the Increase in the Probability or Consequences licensee’s analysis and, based on this of an Accident Previously Evaluated. 20005-3502 The Safety Injection Tanks (SITs) are NRC Project Director: William D. review, it appears that the three passive components in the Emergency Core Beckner standards of 10 CFR 50.92(c) are Cooling System. The SITs are not accident Entergy Operations, Inc., Docket No. 50- satisfied. Therefore, the NRC staff initiators in any accident previously 368, Arkansas Nuclear One, Unit No. 2, Pope proposes to determine that the evaluated. Therefore, this change does not County, Arkansas amendment request involves no involve an increase in the probability of an Date of amendment request: May 19, significant hazards consideration. accident previously evaluated. 1995 Local Public Document Room SITs were designed to mitigate the Description of amendment request: location: Tomlinson Library, Arkansas consequences of Loss of Coolant Accidents The proposed amendment increases the Tech University, Russellville, AR 72801 (LOCA). These proposed changes do not allowed outage time for one train of low Attorney for licensee: Nicholas S. affect any of the assumptions used in pressure safety injection from 72 hours deterministic LOCA analysis. Therefore, the Reynolds, Esquire, Winston and Strawn, to seven days. 1400 L Street, N.W., Washington, D.C. consequences of accidents previously Basis for proposed no significant evaluated do not change. 20005-3502 In order to fully evaluate the effect of the hazards consideration determination:As NRC Project Director: William D. SIT Allowable Outage Time (AOT) extension, required by 10 CFR 50.91(a), the Beckner probabilistic safety analysis (PSA) methods licensee has provided its analysis of the were utilized. The results of these analyses issue of no significant hazards GPU Nuclear Corporation, et al., show no significant increase in the core consideration, which is presented Docket No. 50-219, Oyster Creek damage frequency. As a result, there would below: Nuclear Generating Station, Ocean be no significant increase in the Criterion 1 - Does Not Involve a Significant County, New Jersey consequences of an accident previously Increase in the Probability or Consequences Date of amendment request: June 26, evaluated. These analyses are detailed in CE of an Accident Previously Evaluated. NPSD-994, Combustion Engineering Owners The low pressure safety injection system 1995 Group ‘‘Joint Applications Report for Safety (LPSI) is part of the Emergency Core Cooling Description of amendment request: Injection Tank AOT/STI Extension.’’ System subsystem. Inoperable LPSI The amendment revises the snubber The change pertaining to SIT inoperability components are not considered to be visual inspection intervals to match the based solely on instrumentation malfunction accident initiators. Therefore, this change schedule developed by the NRC staff for does not involve a significant increase in the does not involve an increase in the use with a 24 month refueling interval. consequences of an accident as evaluated and probability of an accident previously This schedule was documented in endorsed by the NRC in NUREG-1366, evaluated. Generic Letter 90-09. The licensee has ‘‘Improvements to Technical Specifications The LPSI system was designed to mitigate made wording changes not contained in Surveillance Requirements.’’ the consequences of a large loss of coolant Therefore, this change does not involve an accident (LOCA). These proposed changes do Generic Letter 90-09. These changes are increase in the probability or a significant not affect any of the assumptions used in as follows: increase in the consequences of any accident deterministic LOCA analysis. a) Section 4.5.Q.1 - GL 90-09 wording previously evaluated. In order to fully evaluate the LPSI AOT ’’...performance of the following Criterion 2 - Does Not Create the Possibility extension, probabilistic safety analysis augmented inservice inspection of a New or Different Kind of Accident from methods were utilized. The results of these program in addition to the requirements any Previously Evaluated. analyses indicate no significant increase in of Section 4.0.5.’’ This proposed change does not change the the consequences of an accident previously Proposed Technical Specification design, configuration, or method of operation evaluated. These analyses are detailed in CE wording ’’...performance of the of the plant. Therefore, this change does not NPSD-995, Combustion Engineering Owners following inspection program.’’ create the possibility of a new or different Group ‘‘Joint Applications Report for Low kind of accident from any previously Pressure Safety Injection System AOT b) Section 4.5.Q.1.a - GL 90-09 evaluated. Extension.’’ wording ’’...based on the criteria of Criterion 3 - Does Not Involve a Significant Therefore, this change does not involve a Table 4.7.2 and the first inspection Reduction in the Margin of Safety. significant increase in the probability or interval determined using the criteria The proposed changes do not affect the consequences of any accident previously shall be based upon the previous limiting conditions for operation or their evaluated. inspection interval established by the bases that are used in the deterministic Criterion 2 - Does Not Create the Possibility requirements in effect before analyses to establish the margin of safety. of a New or Different Kind of Accident from Amendment (*). ‘‘Proposed Technical PSA evaluations were used to evaluate these any Previously Evaluated. Specification wording ’’...based on the changes. These evaluations demonstrated This proposed change does not change the that the changes are either risk neutral or risk design, configuration, or method of operation criteria provided in Table 4.5.1.’’ beneficial. These evaluations are detailed in of the plant. Therefore, this change does not c) Section 4.5.Q.1.b - GL 90-09 CE NPSD-994. create the possibility of a new or different wording ’’...All snubbers found Therefore, this change does not involve a kind of accident from any previously connected to an inoperable common significant reduction in the margin of safety. evaluated. hydraulic fluid reservoir shall be Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39441 counted as unacceptable for Houston Lighting & Power Company, administrative nature in that the subject determining the next inspection City Public Service Board of San Technical Specifications and Bases will be interval.’’ Antonio, Central Power and Light relocated in their entirety to the Technical Company, City of Austin, Texas, Docket Requirements Manual. Future changes to the Proposed Technical Specification relocated requirements will be in accordance deletes this sentence. Nos. 50-498 and 50-499, South Texas with 10CFR 50.59 and approved station Project, Units 1 and 2, Matagorda procedures. Whether the listed Technical Basis for proposed no significant County, Texas hazards consideration determination:As Specifications and Bases are located in Technical Specifications or the Technical required by 10 CFR 50.91(a), the Date of amendment request: May 31, 1995 Requirements Manual has no effect on any licensee has provided its analysis of the previously evaluated accident. It does not issue of no significant hazards Description of amendment request: The proposed amendment would represent a change in the configuration or consideration, which is presented operation of the plant and, therefore, does below: modify (by relocation to the Technical not create the possibility of a new or different Requirements Manual) Technical The proposed amendment would type of accident from any accident Specification (TS) 3/4.1.2.1, Boration previously evaluated. revise the basis for the snubber visual Systems/Flow Paths - Shutdown, TS 3/ 3. Does the proposed change involve a inspection to be consistent with the 4.1.2.2, Boration Systems/Flow Paths - significant reduction in the margin of safety? bases described in Generic Letter 90-09. Operating, TS 3/4.1.2.3, Charging The proposed change to the subject 1. Involve a significant increase in the Pumps - Shutdown, TS 3/4.1.2.4, Technical Specifications is of an probability or consequences of an accident Charging Pumps - Operating, TS 3/ administrative nature in that the subject previously evaluated. 4.1.2.5, Borated Water Sources - Technical Specifications and Bases will be relocated in their entirety to the Technical The proposed change does not affect the Shutdown, TS 3/4.1.2.6, Borated Water probability of occurrence nor does it affect Requirements Manual. Future changes to the Sources - Operating, TS 3/4.4.2.1, Safety relocated requirements will be in accordance the consequences of an accident previously Valves - Shutdown, and the associated evaluated as the requested visual inspection with 10CFR50.59 and approved station Bases. procedures. The margin of safety is not interval has been determined generically to Basis for proposed no significant reduced when the requirements are relocated be a safe and acceptable alternative to the hazards consideration determination:As to a Licensee-controlled document because existing visual inspection requirements as required by 10 CFR 50.91(a), the the requirements to change a License Basis documented by the NRC in Generic Letter 90- licensee has provided its analysis of the Document via the 10CFR50.59 process ensure 09. With the completion of over 25 years of the same questions concerning the margin of operating experience and only detecting one issue of no significant hazards consideration, which is presented safety required for license amendments are visual inspection failure, GPU Nuclear agrees asked. Therefore, this proposed change does that the existing intervals are overly below: not significantly reduce the margin of safety. 1. Does the proposed change involve a conservative and can be extended to those The NRC staff has reviewed the significant increase in the probability or described in the generic letter. consequences of an accident previously licensee’s analysis and, based on this 2. Create the possibility of a new or evaluated? review, it appears that the standards of different kind of accident from any accident The proposed change to the subject 10 CFR 50.92(c) are satisfied. Therefore, previously evaluated. Technical Specifications is of an the NRC staff proposes to determine that As the requested change deals only with administrative nature in that the subject the request for amendments involves no the frequency of visual inspection and not Technical Specifications and Bases will be significant hazards consideration. with the content, scope, or acceptance relocated in their entirety to the Technical Local Public Document Room Requirements Manual. Future changes to the criteria of the inspection, no new or different location: Wharton County Junior type of accident has been created. relocated requirements will be in accordance with 10CFR50.59 and approved station College, J. M. Hodges, Learning Center, 3. Involve a significant reduction in the procedures. 911 Boling Highway, Wharton, Texas margin of safety. Whether the listed Technical 77488 The margin of safety as defined in the Specifications and Bases are located in Attorney for licensee: Jack R. bases of the Technical Specifications is not Technical Specifications or the Technical Newman, Esq., Newman & Holtzinger, reduced as the requested requirements Requirements Manual has no effect on the P.C., 1615 L Street, N.W., Washington, provide the same degree of confidence in probability or consequences of an accident D.C. 20036 previously evaluated. snubber operability at the existing NRC Project Director: William D. requirements. The proposed change does not alter the assumptions previously made in the listed Beckner The NRC staff has reviewed the Technical Specifications. The proposed Nebraska Public Power District, Docket licensee’s analysis and, based on this change allows the Commission and the South review, it appears that the three Texas Project more effective use of personnel No. 50-298, Cooper Nuclear Station, standards of 10 CFR 50.92(c) are resources to control requirements that meet Nemaha County, Nebraska satisfied. Therefore, the NRC staff the four Criteria in the Final Policy Date of amendment request: June 28, proposes to determine that the Statement. The proposed change will not 1995 amendment request involves no change the dose to workers. Description of amendment request: Since the probability of an accident is significant hazards consideration. unaffected by administratively relocating the The proposed amendment would revise Local Public Document Room subject Technical Specification, and the technical specifications related to the location: Ocean County Library, doses are not affected and do not exceed standby liquid control (SLC) system. Reference Department, 101 Washington acceptance limits, the proposed change does The proposed changes include not involve a significant increase in the Street, Toms River, NJ 08753 increasing the required reactor pressure probability or consequences of an accident vessel boron concentration and Attorney for licensee: Ernest L. Blake, previously evaluated. modifying the SLC pump operability Jr., Esquire. Shaw, Pittman, Potts & 2. Does the proposed change create the possibility of a new or different kind of testing surveillance frequency from Trowbridge, 2300 N Street, NW., monthly to quarterly. Washington, DC 20037. accident from any accident previously evaluated? Basis for proposed no significant NRC Project Director: Phillip F. The proposed change to the subject hazards consideration determination:As McKee Technical Specifications is of an required by 10 CFR 50.91(a), the 39442 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices licensee has provided its analysis of the agreement with the ASME Code. The system, or component important to issue of no significant hazards relaxation in the testing interval for the SLC safety. consideration, which is presented pumps decreases pump degradation, and B. The changes do not create the below: eliminates an unnecessary burden on possibility of a new or different kind of personnel resources without compromising 1. The proposed change does not involve accident from any accident previously a significant increase in the probability or plant safety. In fact, it increases SLC system availability. In addition, the administrative evaluated (10 CFR 50.92(c)(2)) because consequences of an accident previously they do not affect the manner by which evaluated. The current analysis requires the changes only correct typographical and SLC system to be capable of bringing the editorial errors. Therefore, it is concluded the facility is operated and do not reactor 3% delta - k subcritical assuming a that the requested changes do not create a involve a change to any structure, cold xenon free condition. The increase in significant reduction in the existing margin system, or component important to SLC storage tank boron concentration limits of safety as defined in the Technical safety. The proposed changes merely will ensure this capability is maintained for Specifications. assure that station will be operated future reload cores using the same 3% delta The NRC staff has reviewed the within original design limits. - k shutdown reactivity margin without licensee’s analysis and, based on this C. The changes do not involve a imposing restrictions in cycle exposure for review, it appears that the three significant reduction in a margin of current and future anticipated core standards of 10 CFR 50.92(c) are configurations. The change in the safety (10 CFR 50.92(c)(3)) because the satisfied. Therefore, the NRC staff proposed changes merely assure that the surveillance frequency for SLC pump proposes to determine that the operability testing to once each three months station will continue to be operated is in agreement with the ASME Code. The amendment request involves no within the original design limits. relaxation of the testing interval for the SLC significant hazards consideration. Therefore, the acceptance criteria for pumps decreases pump degradation, and Local Public Document Room previously evaluated accidents will eliminates an unnecessary burden on location: Auburn Public Library, 118 continue to be met. personnel resources without compromising 15th Street, Auburn, Nebraska 68305 Based on this review, it appears that plant safety. In addition, the administrative Attorney for licensee: Mr. John R. the three standards of 10 CFR 50.92(c) changes only correct typographical and McPhail, Nebraska Public Power editorial errors. are satisfied. Therefore, the NRC staff Since these proposed changes do not affect District, Post Office Box 499, Columbus, proposes to determine that the precursors for any accident or transient Nebraska 68602-0499 amendment request involves no analyzed in Chapter 14 of the USAR, there NRC Project Director: William D. significant hazards consideration. is no increase in the probability of any Beckner North Atlantic Energy Service Local Public Document Room accident previously evaluated. Furthermore, Corporation, Docket No. 50-443, location: Exeter Public Library, since these changes will ensure the ability of Seabrook Station, Unit No. 1, Founders Park, Exeter, NH 03833. the SLC system to mitigate the consequences Rockingham County, New Hampshire of an accident for future anticipated core Attorney for licensee: Thomas Dignan, designs, they do not involve a significant Date of amendment request: June 16, Esquire, Ropes & Gray, One increase in the consequences of any accident 1995 International Place, Boston MA 02110- previously evaluated. Description of amendment request: 2624. 2. The proposed changes will not create the The proposed amendment would NRC Project Director: Phillip F. possibility of a new or different kind of change the minimum boron McKee accident from any accident previously concentration specified for the refueling evaluated. The change in the SLC storage water storage tank (RWST) in Limiting Northeast Nuclear Energy Company tank boron concentration limits will ensure Condition for Operation (LCO) in (NNECO), Docket No. 50-245, Millstone that a cold xenon-free reload core can be Nuclear Power Station, Unit 1, New brought to a subcritical condition as Technical Specification (TS) 3.1.2.5 and previously analyzed. The change in the would replace the minimum specified London County, Connecticut concentration for boron with an frequency of the SLC pump operability Date of amendment request: July 11, testing to once each three months is in acceptable range of boron concentration 1995 agreement with the ASME Code. The for the RWST and the accumulators in Description of amendment request: relaxation in the testing interval for the SLC the LCOs for TS 3.1.2.6, 3.5.1.1, and The proposed amendment modifies pumps decreases pump degradation, and 3.5.4. eliminates an unnecessary burden on Technical Specification 3.5.F.7 to also personnel resources without compromising Basis for proposed no significant allow the use of pull-to-lock switches to plant safety. In addition, the administrative hazards consideration determination:As defeat the automatic initiation of the changes only correct typographical and required by 10 CFR 50.91(a), the emergency core cooling system (ECCS) editorial errors. licensee has provided its analysis of the while in the refuel condition. The These proposed changes do not affect the issue of no significant hazards proposed amendment also makes design, function, or operation of the SLC or consideration. The NRC staff has any other system. Also, these changes do not administrative changes and makes reviewed the licensee’s analysis against changes to the associated Bases section. introduce any new modes of operation or the standards of 10 CFR 50.92(c). The modify existing equipment design. Therefore, Basis for proposed no significant NRC staff’s review is presented below. they do not create the possibility of a new or hazards consideration determination:As different kind of accident from any accident A. The changes do not involve a required by 10 CFR 50.91(a), the previously evaluated. significant increase in the probability or licensee has provided its analysis of the 3. The proposed changes will not create a consequences of an accident previously issue of no significant hazards significant reduction in the margin of safety. evaluated (10 CFR 50.92(c)(1)) because The proposed increase in the required boron consideration, which is presented the changes are proposed to assure that below: concentration in the reactor pressure vessel the post-event shutdown margin will ensure the SLC system will be capable required by the Technical Specifications NNECO has reviewed the proposed change of bringing a cold xenon-free reload core in accordance with 10 CFR 50.92 and subcritical while maintaining the 3% delta - will continue to be met and the concluded that the change does not involve k shutdown reactivity margin as specified in consequences of a boron dilution event a significant hazards consideration (SHC). the previous operating cycle. The change in will remain as previously evaluated. The basis for this conclusion is that the three the frequency of SLC pump operability The changes do not affect the design or criteria of 10 CFR 50.92(c) are not testing to once each three months is in manner of operation of any structure, compromised. The proposed change does not Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39443 involve an SHC because the changes would NRC Project Director: Phillip F. to once per operating cycle will not not: McKee significantly affect reliability. Ensuring the 1. Involve a significant increase in the operability of installed instrumentation does probability or consequences of an accident Northeast Nuclear Energy Company not add new or different kinds of accidents. previously analyzed. (NNECO), Docket No. 50-245, Millstone Therefore, the new LCO and surveillance This change to LCO [Limiting Condition Nuclear Power Station, Unit 1, New requirements do not create the possibility of for Operation] 3.5.F.7(e) will allow an London County, Connecticut a new or different kind of accident. alternative means of de-energizing power to 3. Involve a significant reduction in the the selected ECCS pump motors during Date of amendment request: July 18, margin of safety. refueling. The current 1995 The surveillance requirements being added technical specification already allows these Description of amendment request: in this change are consistent with current motors to be de-energized. Use of the pull- The proposed amendment request will surveillances being performed for this to-lock switches provides a safer method of add operability and surveillance instrumentation, with the exception that the achieving this condition. The pull-to-lock requirements for reactor pressure vessel LITS are currently calibrated on an annual condition of the switches is annunciated in (RPV) overfill protection rather than operating cycle basis. These the control room. Therefore, the switches instrumentation. The proposed surveillance and shutdown requirements will not be inadvertently left in the pull-to- ensure that protection from RPV overfill is lock position. amendment will also add the associated maintained as assumed in the safety Deletion of the statement that the 4160 volt Bases. analyses. supply breakers are racked in does not affect Basis for proposed no significant Therefore, there is no impact on the margin the requirement of LCO 3.5.F.7 to ensure the hazards consideration determination:As of safety. specified ECCS subsystems are OPERABLE. required by 10 CFR 50.91(a), the The NRC staff has reviewed the Therefore, there is no change in the licensee has provided its analysis of the licensee’s analysis and, based on this probability or consequences of an accident issue of no significant hazards review, it appears that the three previously analyzed due to this change. consideration, which is presented standards of 10 CFR 50.92(c) are 2. Create the possibility of a new or below: different kind of accident from any satisfied. Therefore, the NRC staff previously analyzed. NNECO has reviewed the proposed change proposes to determine that the The use of an alternative means of de- in accordance with 10 CFR 50.92 and amendment request involves no energizing power from the selected ECCS concluded that the change does not involve significant hazards consideration. pump motors does not create a possibility of a significant hazards consideration (SHC). Local Public Document Room a new or different kind of accident. Using the The basis for this conclusion is that the three location: Learning Resources Center, control room pull-to-lock switch to disable criteria of 10 CFR 50.92(c) are not compromised. The proposed change does not Three Rivers Community-Technical the pump motor circuit breaker has the same College, 574 New London Turnpike, effect on the ECCS pump as the removal of involve an SHC because the change would the circuit breaker from the switchgear. not: Norwich, CT 06360. Deletion of the statement that the 4160 volt 1. Involve a significant increase in the Attorney for licensee: Ms. L. M. supply breakers are racked in does not affect probability or consequences of an accident Cuoco, Senior Nuclear Counsel, the requirement of LCO 3.5.F.7 to ensure the previously analyzed. Northeast Utilities Service Company, specified ECCS subsystems are OPERABLE. The new LCO [Limiting Condition for Post Office Box 270, Hartford, CT 3. Involve a significant reduction in the Operation] and surveillance requirements 06141-0270. margin of safety. ensure that the reactor high water level feedwater pump trip instrumentation is NRC Project Director: Phillip F. The proposed change to the Millstone Unit McKee No. 1 Technical Specifications does not available. This technical specification change reduce the margin of safety. By using the does not involve the addition of new Northeast Nuclear Energy Company, et control room pull-to-lock switches to disable equipment or logic. This change does not add al., Docket No. 50-336, Millstone the ECCS pump motors, instead of racking new surveillance requirements for the instrumentation. This change simply Nuclear Power Station, Unit No. 2, New out the pump motor circuit breakers, it is London County, Connecticut possible to reenergize the ECCS pumps more establishes requirements for the operation quickly in an emergency, should one occur. and surveillance of Date of amendment request: July 7, The time savings can be translated into reactor high water level feedwater pump 1995 added safety margin from a shutdown risk trip instrumentation in the technical specifications. The implementation of this Description of amendment request: perspective. The ability to disable and enable The proposed change to technical the pumps from the control room, instead of technical specification change will decrease the switchgear area, also contributes to this the likelihood of an RPV overfill. No other specification 3/4.7.6 is being made to: 1) added safety margin. postulated event is affected by the addition increase the allowable control room air The NRC staff has reviewed the of this instrumentation to the technical conditioning (CRAC) system in-leakage licensee’s analysis and, based on this specifications. from 100 cubic feet per minute (cfm) to review, it appears that the three Thus, adding the proposed requirements to 130 cfm; 2) provide a more conservative the technical specifications will not increase standards of 10 CFR 50.92(c) are value for the maximum differential the probability or consequences of any pressure across the high efficiency satisfied. Therefore, the NRC staff previously evaluated transients or accidents. proposes to determine that the 2. Create the possibility of a new or particulate air (HEPA) filters and amendment request involves no different kind of accident from any charcoal adsorbers; 3) clarify that when significant hazards consideration. previously analyzed. the CRAC system is shifted to Local Public Document Room No new failure modes are introduced by ‘‘recirculation,’’ this will be performed location: Learning Resources Center, the addition of the reactor high water level from the normal mode; and 4) modify Three Rivers Community-Technical feedwater pump trip instrumentation LCO the corresponding basis to reflect the College, 574 New London Turnpike, and surveillance requirements. Modifying the above changes and to note that there are Norwich, CT 06360. technical specifications to formally add certain infrequent situations during surveillance requirements already being which the control room emergency Attorney for licensee: Ms. L. M. performed in accordance with plant Cuoco, Senior Nuclear Counsel, procedures will not modify plant response to ventilation system (CREVS) will not Northeast Utilities Service Company, any operational or transient event. Increasing automatically operate. Post Office Box 270, Hartford, CT the surveillance interval of the LITS [level Basis for proposed no significant haz- 06141-0270. indicating transmitter switches] from annual ards consideration determination: As 39444 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices required by 10 CFR 50.91(a), the allowable control room in-leakage value from conductors for these circuits are licensee has provided its analysis of the it[s] current level of 100 cfm to its new value protected by primary and backup issue of no significant hazards of 130 cfm also does not create the possibility penetration circuit breakers which are consideration (SHC), which is presented of a new or different kind of accident. The demonstrated to be operable by periodic CRAC system is used to mitigate the below: consequences of an accident. surveillance testing. ...The proposed changes do not involve an 3.Involve a significant reduction in the Basis for proposed no significant SHC because the changes will not: margin of safety. hazards consideration determination:As 1. Involve a significant increase in the The proposed modifications do not required by 10 CFR 50.91(a), the probability or consequences of an accident decrease the margin of safety provided. Using licensee has provided its analysis of the previously analyzed. the new accident assumptions, the limiting The CRAC system in the recirculation issue of no significant hazards accidents were re-calculated to determine the mode is used to mitigate the effects of an consideration (SHC), which is presented impact on the Millstone Unit No. 2 control accident. Surveillance Requirement below: room. These values are similar to the values 4.7.6.1.e.2 has been modified to clarify that The proposed changes do not involve an found in the Millstone Unit No. 2 Final the system will automatically switch from SHC because the changes would not: Safety Analysis Report and the Millstone the normal mode into a recirculation mode. 1. Involve a significant increase in the This change and the proposed modifications Unit No. 2 Safety Evaluation Report and are probability or consequences of an accident to the acceptance criterion for the differential within the regulatory limits established for previously evaluated. pressure across the HEPA filters and charcoal the control room operators. Since the re- The revised Technical Specification adsorbers and the increase in the control calculated doses have been shown to be Section 3.5.1 requirements will provide room in-leakage have no [e]ffect on the within limits, it has been concluded that guidance to ensure that power to the probability of an accident previously there is no reduction in the margin of safety. accumulator isolation valves is removed evaluated. The consequences of the accidents The NRC staff has reviewed the when the accumulators are required to be that have been previously evaluated have licensee’s analysis and, based on this operable and will clarify these requirements. been reviewed to determine the impact of review, it appears that the three Removal of the electrical penetration these proposed modifications. The increase standards of 10 CFR 50.92(c) are protection requirements of Section 3/4.8.4.3 in the in-leakage will affect the results of satisfied. Therefore, the NRC staff is justified since Section 3/4.8.4.1 previously generated accident analysis. The proposes to determine that the (Containment Penetration Conductor accidents evaluated, namely the Millstone Overcurrent Protective Devices) will provide amendment request involves no guidance to ensure that two breakers in series Unit No. 1 MSLB [main steam line break] and significant hazards consideration. LOCA [loss-of-coolant accident], Millstone protect the electrical penetrations and Unit No. 2 LOCA, both high and low wind Local Public Document Room penetration conductors against an speed case, and Millstone Unit No. 3 LOCA location: Learning Resource Center, overcurrent condition and the single failure have been reviewed. The Millstone Unit No. Three Rivers Community-Technical of a circuit breaker. The two breakers in 1 LOCA doses to the Millstone Unit No. 2 College, Thames Valley Campus, 574 series also protect the Class 1E buses against control room were qualitatively determined New London Turnpike, Norwich, CT a variety of overcurrent conditions including to be bounded by the Millstone Unit No. 2 06360. electrical faults which may be introduced LOCA cases. Therefore the Millstone Unit Attorney for licensee: Ms. L. M. due to the possible submergence of the No. 1 LOCA was not performed. The accumulator isolation valves during a LOCA Cuoco, Senior Nuclear Counsel, [loss-of-coolant accident]. remaining accidents were performed. The Northeast Utilities Service Company, resultant doses are nearly identical to the Therefore, the proposed amendment will existing doses found in the Millstone Unit Post Office Box 270, Hartford, CT not involve a significant increase in the No. 2 Final Safety Analysis Report and are 06141-0270. probability or consequences of an accident all within the regulatory limits. To perform NRC Project Director: Phillip F. previously evaluated. these revised control room dose calculations, McKee 2. Create the possibility of a new or NNECO used certain new assumptions which different kind of accident from any accident NNECO believes better model the control Northeast Nuclear Energy Company, et previously evaluated. room and the effects the accident will have al., Docket No. 50-423, Millstone The amended Technical Specification on the control room. The most significant Nuclear Power Station, Unit No. 3, New Section 3.5.1 requirements will provide change with the assumptions is the use of London County, Connecticut guidance to ensure that the accumulator ICRP 30 in lieu of Regulatory Guide 1.109, isolation valves are deenergized when the Date of amendment request: June 8, accumulators are required to be operable. Revision 1 for iodine dose conversion factors. 1995 The NRC has used ICRP 30 over the past 5 Deletion of the Technical Specifications years for other applications and its use in this Description of amendment request: Section 3.5.1 requires that electrical power to instance is appropriate. The Millstone Unit No. 3 Technical the safety injection accumulator isolation The change in the acceptance criterion for Specification Section 3/4.8.4.3 requires valves (3SIL*MV8808A, B, C, D) be removed the differential pressure across the HEPA removal of electrical power to the safety for the accumulators to be operable. This filter and charcoal adsorbers is a conservative injection accumulator isolation valves requirement prevents the inadvertent closure modification in that the value given is a plant in Modes 1, 2, 3, and 4 in order to of these isolation valves which would block specific value and will be more indicative of protect the containment electrical the safety function of the accumulators. Section 4.5.1.c requires demonstrating blocked or clogged filters in actual plant penetrations and penetration conditions. These proposed changes do not accumulator operability by ‘‘At least once per have any negative impact on the conductors. Bases Section 3/4.8.4 states 31 days when the RCS [reactor coolant consequences of any accident previously that containment electrical penetrations system] pressure is above 1000 psig by evaluated. and penetration conductors are verifying that power to the isolation valve 2. Create the possibility of a new or protected by either deenergizing circuits operator is disconnected by removal of the different kind of accident from any not required during normal plant breaker from the circuit.’’ The surveillance previously analyzed. operation (Modes 1 through 4) or by requirements for verifying removal of power The proposed modifications to demonstrating the operability of to the accumulator isolation valves for Surveillance Requirement 4.7.6.1 will clarify primary and backup overcurrent Section 4.5.1.c will be changed to ‘‘At least once per 31 days when the RCS pressure is a portion of a surveillance requirement and protection circuit breakers during will modify the differential pressure across above 1000 psig by verifying that the the HEPA filters and the charcoal adsorbers. performance of periodic surveillances. It associated circuit breakers are locked in a These changes will not create the possibility is proposed that Section 3/4.8.4.3 will deenergized position or removed.’’ of a new or different kind of accident from be deleted since the containment The proposed change will clarify any previously evaluated. The increase in the electrical penetration and penetration requirements for securing these breakers in Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39445 the off (tripped) position in the applicable Description of amendment request: The proposed changes do not make any modes. In addition, index page xi has been The proposed amendment relocates physical or operational changes to existing revised to reflect the deletion of Section 3/ Surveillance Requirement 4.6.6.1.d.3 for plant structures, systems, or components. 4.8.4.3. Attachments 1 and 2 provide the attaining a negative pressure in the The proposed changes do not introduce any mark-up and retyped pages of the Millstone new failure modes. The proposed changes Unit No. 3 Technical Specifications, secondary containment to Specification simply resolve a conflict which currently respectively and reflect the currently issued 3.6.6.2, Secondary Containment. The exists between Specifications 3.6.6.1 and version of the pages. Action Statement of Section 3.6.6.1 is 3.6.6.2. Thus, the proposed changes do not Millstone Unit No. 3 Technical revised to decouple Sections 3.6.6.1 and create the possibility of a new or different Specifications Section 3/4.8.4.3 will not 3.6.6.2. In addition, Definition 1.12, kind of accident from any accident create the possibility of a new or different ‘‘Secondary Containment Boundary’’ is previously evaluated. kind of accident from any accident deleted and included in the Bases 3. Involve a significant reduction in a previously evaluated since two breakers in margin of safety. series protect against an overcurrent Section 3/4.6.6, Secondary Containment. Bases Section 3/4.6.6.2, The proposed changes do not have any condition and a single failure of a circuit adverse impact on the accident analyses. breaker. The proposed amendment will not Secondary Containment is expanded Also, the proposed changes resolve a conflict result in physical plant changes and there are using the guidance of the improved which currently exists between no new credible failure modes. Therefore, the standard technical specifications (STS) Specifications 3.6.6.1 and 3.6.6.2. The proposed amendment will not create the for Westinghouse plants (NUREG-1431). structures, systems, or components covered possibility of a new or different kind of Basis for proposed no significant under Specifications 3.6.6.1 and 3.6.6.2 will accident from any accident previously hazards consideration determination:As performed [sic] their intended safety function evaluated. required by 10 CFR 50.91(a), the when called upon. 3. Involve a significant reduction in a Based on the above, there is no significant margin of safety. licensee has provided its analysis of the issue of no significant hazards reduction in the margin of safety. The revised Technical Specification The NRC staff has reviewed the Section 3.5.1 will require that the consideration (SHC), which is presented accumulator isolation valves have their below: licensee’s analysis and, based on this power deenergized when the accumulators The proposed changes do not involve an review, it appears that the three are required to be operable. This requirement SHC because the changes would not: standards of 10 CFR 50.92(c) are will maintain accumulator operability by 1. Involve a significant increase in the satisfied. Therefore, the NRC staff assuring the accumulator isolation valves probability or consequences of an accident proposes to determine that the remain open. previously evaluated. amendment request involves no The removal of the Millstone Unit No. 3 The proposed changes to LCO [limiting significant hazards consideration. Technical Specification Section 3/4.8.4.3 is condition for operation] 3.6.1.2, LCO 3.6.6.1 Local Public Document Room safe since redundant circuit breakers in series and LCO 3.6.6.2 Action Statements, for the accumulator isolation valves will relocation of Surveillance Requirement location: Learning Resources Center, provide assurance that the electrical 4.6.6.1.d.3 to Specification 3.6.6.2, changes to Three Rivers Community-Technical penetration and penetration conductors are Bases Section 3/4.6.6.1, 3/4.6.6.2, and 3/ College, 574 New London Turnpike, protected against overcurrent conditions. 4.6.6.3, and deletion of Definition 1.12 will Norwich, CT 06360. This will provide assurance that the resolve the conflict that currently exists Attorney for licensee: Ms. L. M. containment boundary is intact. between Specifications 3.6.6.1 and 3.6.6.2. Cuoco, Senior Nuclear Counsel, The proposed amendment will not Specifically, the requirement to establish and Northeast Utilities Service Company, adversely impact the physical protective maintain a negative pressure in the Post Office Box 270, Hartford, CT secondary containment boundary included in boundaries (fuel matrix/cladding, RCS 06141-0270. pressure boundary and containment) and Specification 3.6.6.1 belongs to Specification therefore will not involve a significant 3.6.6.2. In the event Secondary Containment NRC Project Director: Phillip F. reduction in a margin of safety. operability is not maintained, the Action McKee The NRC staff has reviewed the Statement for LCO 3.6.6.2 requires that Secondary Containment operability must be Northeast Nuclear Energy Company, et licensee’s analysis and, based on this al., Docket No. 50-423, Millstone review, it appears that the three restored within 24 hours. Twenty-four hours is a reasonable completion time considering Nuclear Power Station, Unit No. 3, New standards of 10 CFR 50.92(c) are the limited leakage design of containment London County, Connecticut satisfied. Therefore, the NRC staff and the low probability of a DBA [design Date of amendment request: June 20, proposes to determine that the basis accident] occurring during this time amendment request involves no period. Therefore, it is considered that there 1995 significant hazards consideration. exists no loss of safety function. The Description of amendment request: Local Public Document Room proposed changes do not modify the LCO or The proposed amendment relocates the location: Learning Resources Center, surveillance acceptance criterion, nor do they applicable requirements of Specification Three Rivers Community-Technical change the frequency of the surveillances. 3.6.3 for the main steam line isolation The proposed changes do not involve any College, 574 New London Turnpike, valves (MSIVs) to Specification 3.7.1.5, physical changes to the plant, do not alter the ‘‘Main Steam Line Isolation Valves.’’ In Norwich, CT 06360. way any structure, system, or component Attorney for licensee: Ms. L. M. addition, the Applicability section of functions. Therefore, the structures, systems, Specification 3.7.1.5 is revised to Cuoco, Senior Nuclear Counsel, or components will perform their intended Northeast Utilities Service Company, function when called upon. The proposed indicate that Specification 3.7.1.5 is Post Office Box 270, Hartford, CT changes do not affect the probability of any applicable in Mode 1 and in Modes 2, 06141-0270. previously evaluated accident. Additionally, 3 and 4, except where all MSIVs are NRC Project Director: Phillip F. the proposed changes are consistent with the closed and deactivated (i.e., in Modes 2, McKee new, improved STS for Westinghouse plants 3, and 4, Specification 3.7.1.5 is (NUREG-1431). applicable only if the MSIVs are open). Northeast Nuclear Energy Company, et Based on the above, the proposed changes Also, the Action Statement for the al., Docket No. 50-423, Millstone do not involve a significant increase in the Limiting Condition for Operation (LCO) probability or consequences of an accident Nuclear Power Station, Unit No. 3, New 3.7.1.5 has been revised using the London County, Connecticut previously evaluated. 2. Create the possibility of a new or guidance of the improved standard Date of amendment request: June 9, different kind of accident from any accident technical specifications (STS) for 1995 previously evaluated. Westinghouse plants (NUREG-1431). 39446 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Basis for proposed no significant satisfied. Therefore, the NRC staff The CEOG report reviewed the risk factors hazards consideration determination:As proposes to determine that the that are impacted by extending the AOT for required by 10 CFR 50.91(a), the amendment request involves no a single LPSI pump from 24 hours to seven (7) days, and demonstrates that the increase licensee has provided its analysis of the significant hazards consideration. in risk is negligible. In order to perform a issue of no significant hazards Local Public Document Room more complete assessment of the overall consideration (SHC), which is presented location: Learning Resources Center, change in risk, an accounting for avoided below: Three Rivers Community-Technical risks associated with reducing power and The proposed changes do not involve an College, 574 New London Turnpike, going to hot or cold shutdown was also SHC because the changes would not: Norwich, CT 06360. considered. This ‘‘transition risk’’ is 1. Involve a significant increase in the Attorney for licensee: Ms. L. M. important in understanding the trade-off probability or consequences of an accident between the risk of shutting down the plant previously evaluated. Cuoco, Senior Nuclear Counsel, compared with restoring a LPSI pump to The proposed changes to the Applicability Northeast Utilities Service Company, operability while at power. section, Action Statements, and Surveillance Post Office Box 270, Hartford, CT In assessing overall plant risk, the risk Requirements of Specification 3.7.1.5 and the 06141-0270. avoided based on LPSI system maintenance proposed changes to Specification 3.6.3 NRC Project Director: Phillip F. while in cold shutdown must also be preserve the assumptions in the existing McKee considered. Every time the plant is placed in safety analysis. The proposed changes to the cold shutdown, the LPSI system is required Applicability Section of Specification 3.7.1.5 Omaha Public Power District, Docket for decay heat removal when in the will require the MSIVs to be operable in No. 50-285, Fort Calhoun Station,Unit shutdown cooling mode of operation. Mode 1 and in Modes 2, 3, and 4, except No. 1, Washington County, Nebraska Maintenance performed on the LPSI system when closed and deactivated. The closure of during shutdown cooling operations may add the MSIVs in Modes 2, 3, or 4 is acceptable Date of amendment request: June 26, to the risk of a loss of shutdown cooling because when they are closed, they are 1995 event. Therefore, performing LPSI system already performing their safety function. Description of amendment request: maintenance with the unit on-line, when the Since the MSIV closure time has not been This proposed amendment would revise LPSI system is not normally in demand, changed, there is no adverse impact on the represents a decrease in shutdown risk. Technical Specification 2.3 to extend The CE study concluded that the change in accidents previously evaluated. the allowed outage time (AOT) from 24 The proposed changes do not involve any core damage frequency due to increasing the physical changes to the plant, and do not hours to 7 days for an inoperable low- LPSI AOT from 24 hours to seven (7) days alter the way any structure, system, or pressure safety injection pump. This is insignificant. Additionally, when the component functions. Therefore, the amendment request is a collaborative reduction in transition and shutdown risks proposed changes do not affect the effort of participating Combustion are considered, it can be shown that there is probability of any previously evaluated Engineering Owners Group members an overall reduction in plant risk. Thus, it is accident. Additionally, the proposed changes and is based on an integrated the conclusion of the study that the overall are consistent with the new, improved STS plant impact will either be risk beneficial or assessment of plant operations and risk neutral. for Westinghouse plants (NUREG-1431). deterministic and probabilistic analyses. Based on the above, the proposed changes Therefore, the proposed changes would not do not involve a significant increase in the Basis for proposed no significant increase the probability or consequences of probability or consequences of an accident hazards consideration determination:As an accident previously evaluated. previously evaluated. required by 10 CFR 50.91(a), the 2. The proposed change does not create the 2. Create the possibility of a new or licensee has provided its analysis of the possibility of a new or different kind of different kind of accident from any accident issue of no significant hazards accident from any accident previously previously evaluated. evaluated. consideration, which is presented There will be no physical alterations to the The proposed changes do not make any below: physical changes to existing plant structures, plant configuration, changes to setpoint 1. The proposed change does not involve values, or changes to the implementation of systems, or components. When the MSIVs are a significant increase in the probability or closed and deactivated, they are already in setpoints or limits as a result of the proposed consequences of an accident previously changes. Therefore, the proposed changes do the safe position; therefore, the proposed evaluated. changes do not introduce a new failure mode. not create the possibility of a new or different The low pressure safety injection (LPSI) kind of accident from any previously Additionally, the MSIV closure time (i.e., system is part of the emergency core cooling surveillance acceptance criterion) is not evaluated. system. Inoperable LPSI components are not 3. The proposed change does not involve changed. The purpose of the surveillance is accident initiators in any accident previously a significant reduction in a margin of safety. to ensure that the MSIVs can perform their evaluated. Therefore, these changes do not These proposed changes do not affect the safety function, and this requirement is involve an increase in the probability of an limiting conditions for operation or their preserved. accident previously evaluated. bases used in the deterministic analyses to Thus, the proposed changes do not create The LPSI system is primarily designed to establish the margin of safety. PSA the possibility of a new or different kind of mitigate the consequences of a large loss of evaluations were used to evaluate this accident from any accident previously coolant accident (LOCA). These proposed change. These evaluations demonstrate that evaluated. changes do not affect any of the assumptions the changes are either risk neutral or risk 3. Involve a significant reduction in a in the deterministic LOCA analysis. Hence beneficial. These evaluations are detailed in margin of safety. the consequences of accidents previously CE NPSD-995. Therefore, the proposed The proposed changes do not revise the evaluated do not change. changes do not involve a significant closure time of the MSIVs. This provides In order to fully evaluate the LPSI allowed reduction in the margin of safety. assurance that the MSIVs will perform their outage time (AOT) extension, probabilistic The NRC staff has reviewed the design safety function to mitigate the safety analysis (PSA) methods were utilized. licensee’s analysis and, based on this consequences of an accident. In addition, The results of these analyses show no when they are closed in Modes 2, 3, and 4, review, it appears that the three significant increase in the core damage standards of 10 CFR 50.92(c) are they are already performing their safety frequency. As a result, there would be no function. Therefore, there is no significant significant increase in the consequences of an satisfied. Therefore, the NRC staff reduction in the margin of safety. accident previously evaluated. These proposes to determine that the The NRC staff has reviewed the analyses are detailed in CE NPSD-995, amendment request involves no licensee’s analysis and, based on this ‘‘Combustion Engineering Owners Group significant hazards consideration. review, it appears that the three Joint Applications Report for Low Pressure Local Public Document Room standards of 10 CFR 50.92(c) are Safety Injection System AOT Extension.’’ location: W. Dale Clark Library, 215 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39447 South 15th Street, Omaha, Nebraska Additionally, level instrumentation on the standards of 10 CFR 50.92(c) are 68102 boric acid storage tanks does not meet any of satisfied. Therefore, the NRC staff Attorney for licensee: James R. the four criteria for inclusion into Technical proposes to determine that the Curtiss, Winston & Strawn, 1400 L Specifications as presented in the Final amendment request involves no Street, N.W., Washington, DC 20005- Policy Statement on Technical Specifications Improvements. This instrumentation is not significant hazards consideration. 3502 installed instrumentation used to detect a Local Public Document Room NRC Project Director: William H. significant degradation of the RCS boundary, location: W. Dale Clark Library, 215 Bateman a design feature or operating restriction that South 15th Street, Omaha, Nebraska Omaha Public Power District, Docket is an initial condition of a Design Basis 68102 Accident, a component that is part of the Attorney for licensee: James R. No. 50-285, Fort Calhoun Station,Unit primary success path or actuates to mitigate Curtiss, Winston & Strawn, 1400 L No. 1, Washington County, Nebraska a DBA, nor is it a component that has been Street, N.W., Washington, DC 20005- Date of amendment request: June 27, shown to be significant to public health and 3502 1995 safety. Therefore, testing and maintenance of NRC Project Director: William H. the level instrumentation will be controlled Description of amendment request: Bateman This proposed amendment would revise outside of the TS. TS 2.2(3) specifies the Modifications of Omaha Public Power District, Docket Technical Specification 2.2 on the Minimum Requirements that are allowed chemical and volume control system to No. 50-285, Fort Calhoun Station,Unit during Power Operation. This specification is No. 1, Washington County, Nebraska reformat, clarify the requirements, and inconsistent with TS 2.2(2) which states the be more consistent with Combustion minimum requirements and is incomplete as Date of amendment request: July 11, Engineering Standard Technical it does not address components during 1995 Specifications (STS) as presented in Modes 3, 4, and 5. The proposed changes Description of amendment request: NUREG-0212, Revision 2. incorporates consistent allowed outage times The proposed amendment would allow Basis for proposed no significant for the various components, and additional up to 24 hours to restore Safety Injection hazards consideration determination:As required actions for component inoperability Tank (SIT) operability if the SIT is during Modes 4 and 5 when fuel is in the required by 10 CFR 50.91(a), the reactor. inoperable due to level and/or pressure licensee has provided its analysis of the The proposed changes incorporate outside prescribed limits or if the issue of no significant hazards additional operability requirements for the associated isolation valve is in other consideration, which is presented CVCS and required actions to be taken for than the full open position. The below: CVCS component inoperability during Modes proposed change would also allow up to 1. The proposed change does not involve 4 and 5 when fuel is in the reactor. The 72 hours to restore SIT operability if the a significant increase in the probability or proposed changes delete inconsistencies and SIT is inoperable due to boron consequences of an accident previously clarify operability requirements for the CVCS concentration outside prescribed limits. evaluated. whenever the reactor coolant temperature Basis for proposed no significant (Tcold) is greater than or equal to 210 degrees The proposed changes do not involve a hazards consideration determination:As significant increase in the probability or F, and ensures that operation of the system consequences of an accident previously is consistent with its design bases. The required by 10 CFR 50.91(a), the evaluated. The proposed changes incorporate proposed changes also revise the allowed licensee has provided its analysis of the required actions, restrictions, and outage time for CVCS components from 24 issue of no significant hazards surveillance requirements for the Chemical hours to 72 hours based on Standard consideration, which is presented and Volume Control System (CVCS) similar Technical Specifications. This change is below: to Combustion Engineering Standard insignificant based on the FCS plant specific 1. The proposed change does not involve Technical Specifications (NUREG-0212 probabilistic risk assessment. Therefore, the a significant increase in the probability or Revision 2). proposed changes do not involve a consequences of an accident previously Technical Specification (TS) 2.2(1) significant increase in the probability or evaluated. specifies the requirements for borated water consequences of an accident previously The safety injection tanks (SITs) are sources and flow paths when the reactor is evaluated. passive components in the emergency core subcritical and fuel is in the reactor. In order 2. The proposed change does not create the cooling system. The SITs are not an accident for a flow path to be operable, a charging or possibility of a new or different kind of initiator in any accident previously high pressure safety injection pump is accident from any accident previously evaluated. Therefore, this change does not required to be operable to inject the boric evaluated. involve an increase in the probability of an acid solution into the Reactor Coolant There will be no physical alterations to the accident previously evaluated. System. Currently this specification does not plant configuration, changes to setpoint SITs were designed to mitigate the state any operability requirements for boric values, or changes to the implementation of consequences of a loss of coolant accident acid transfer pumps, charging pumps or high setpoints or limits as a result of this proposed (LOCA). These proposed changes do not pressure safety injection pumps. In addition, change. No new modes of operation are affect any of the assumptions used in this specification does not state any required proposed. Therefore, the proposed change deterministic LOCA analysis. Hence the actions to be taken if the borated water does not create the possibility of a new or consequences of accidents previously source or flow path is not operable. different kind of accident from any evaluated do not change. Therefore, the proposed changes previously analyzed. In order to fully evaluate the affect of the incorporate requirements for the CVCS 3. The proposed change does not involve SIT allowable outage time (AOT) extension, during shutdown into separate Limiting a significant reduction in a margin of safety. probabilistic safety analysis (PSA) methods Conditions for Operations (LCOs) that will The proposed changes incorporate were utilized. The results of these analyses address the requirements for borated water additional operability requirements, delete show no significant increase in the core sources, boric acid flow paths, charging inconsistencies, and clarify operability damage frequency. As a result, there would pumps, and boric acid transfer pumps. requirements for the CVCS to ensure that be no significant increase in the The proposed changes delete operability operation of the system is consistent with its consequences of an accident previously and surveillance requirements for level design bases. Therefore, the proposed evaluated. These analyses are detailed in CE instrumentation on the boric acid storage changes do not involve a significant NPSD-994, ‘‘Combustion Engineering Owners tanks. Level instrumentation by itself does reduction in a margin of safety. Group Joint Applications Report for Safety not fulfill a safety function. The proposed The NRC staff has reviewed the Injection Tank AOT/STI Extension.’’ changes will still require verification of tank licensee’s analysis and, based on this The AOT extension based upon boron level. review, it appears that the three concentration outside the prescribed limits 39448 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices does not involve a significant increase in the extended from 3 and 7 days to 14 days AOTs and extending the assumptions consequences of an accident as evaluated and during the Limerick Generating Station concerning the combinations of events and approved by the NRC in NUREG-1432, (LGS), Unit 1, sixth refueling outage single failures for the longer duration of each ‘‘Standard Technical Specifications for scheduled to begin January, 1996. This extended AOT, we conclude, based on the Combustion Engineering Plants.’’ This evaluations above, that at least the minimum proposed change is applicable to FCS. proposed extended AOT will allow equipment required to mitigate the Therefore, the proposed changes would not adequate time to install isolation valves consequences of an accident and/or safely increase the probability or consequences of and cross-ties on the ESW and RHRSW shutdown the plant will still be operable any accident previously evaluated. Systems to facilitate future inspections during the extended AOT. Therefore, the 2. The proposed change does not create the or maintenance. consequences of an accident previously possibility of a new or different kind of Basis for proposed no significant evaluated in the SAR will not be increased. accident from any accident previously hazards consideration determination:As Therefore, these proposed one-time TS evaluated. required by 10 CFR 50.91(a), the changes will not result in a significant increase in the probability or consequences There will be no physical alterations to the licensee has provided its analysis of the plant configuration, changes to setpoint of an accident previously evaluated. values, or changes to the implementation of issue of no significant hazards 2. The proposed TS changes do not create setpoints or limits as a result of these consideration, which is presented the possibility of a new or different kind of proposed changes. Therefore, the proposed below: accident from any accident previously changes do not create the possibility of a new 1. The proposed Technical Specifications evaluated. or different kind of accident from any changes do not involve a significant increase The proposed one-time TS changes will previously evaluated. in the probability or consequences of an not create the possibility of a different type 3. The proposed change does not involve accident previously evaluated. of accident since it will only extend the time a significant reduction in a margin of safety. The proposed one-time TS changes will period that the ’A’ ESW and RHRSW loops The proposed changes do not affect the not increase the probability of an accident and the affected equipment can be out-of- limiting conditions for operation or their since it will only extend the time period that service. The extension of the time duration bases that are used in the deterministic the ’A’ ESW and RHRSW loops and the that certain equipment is out-of-service has analyses to establish the margin of safety. affected equipment can be out-of-service. The no direct physical impact on the plant and PSA evaluations were used to evaluate these extension of the time duration that certain does not create any new accident initiators. changes. These evaluations demonstrated equipment is out-of-service has no direct The systems involved are either accident that the changes are either risk neutral or risk physical impact on the plant. The proposed mitigation systems, safe shutdown systems or beneficial. These evaluations are detailed in inoperable systems are normally in a standby systems that support plant operation. All of CE NPSD-994. Therefore, the proposed mode while the unit is in OPCON 1 or 2 and the possible impacts that the inoperable changes do not involve a significant are not directly supporting plant operation. equipment may have on its supported reduction in the margin of safety. Therefore, they can have no impact on the systems were previously analyzed in the SAR The NRC staff has reviewed the plant that would make an accident more and are the basis for the present TS ACTION licensee’s analysis and, based on this likely to occur due to their inoperability. statements and AOTs. The impact of review, it appears that the three During transients or events which require inoperable support systems for a given time these systems to be operating, there is duration was previously evaluated and any standards of 10 CFR 50.92(c) are sufficient capacity in the operable loops to accident initiators created by the inoperable satisfied. Therefore, the NRC staff support plant operation or shutdown, in-so- systems was evaluated. The lengthening of proposes to determine that the much that failures that are accident initiators the time duration does not create any amendment request involves no will not occur more frequently than additional accident initiators for the plant. significant hazards consideration. previously postulated. Therefore, the proposed one-time TS Local Public Document Room In addition, the consequences of an changes will not create the possibility of a location: W. Dale Clark Library, 215 accident previously evaluated in the SAR new or different type of accident from any South 15th Street, Omaha, Nebraska [Safety Analysis Report] will not be accident previously evaluated. 68102 increased. With the ’A’ loops of ESW and 3. The proposed TS changes do not involve Attorney for licensee: James R. RHRSW inoperable, a known quantity of a significant reduction in a margin of safety. equipment is either inoperable or the The ESW and RHRSW systems and their Curtiss, Winston & Strawn, 1400 L equipment is not fully capable of fulfilling its supported systems are designed with Street, N.W., Washington, DC 20005- design function under all design conditions sufficient independence and redundancy 3502 due to certain support systems not being such that the removal from service of a NRC Project Director: William H. operable. Based on the support functions of component/subsystem will not prevent the Bateman the ESW and RHRSW systems, a review of systems from performing their required safety the plant was performed to determine the functions. Since removal of an ESW and a Philadelphia Electric Company, Docket impacts that the inoperable ESW and RHRSW loop from service with one unit in No. 50-353, Limerick Generating RHRSW ’A’ loops would have on other operation and the other unit in a refueling Station, Unit 2, Montgomery County, systems. The impacts were identified for outage is allowed by the current Technical Pennsylvania each system, as discussed in the preceding Specifications, then the concern is the Date of amendment request: June 23, Safety Assessment, and it was determined reduced margin of safety incurred by whether there were any adverse affects on the extending the affected AOTs. 1995 systems. It was then determined how the The present ESW and RHRSW AOT limits Description of amendment request: adverse affects would impact each system’s were set to ensure that sufficient safety- This Technical Specifications (TS) design basis and overall plant safety. The related equipment is available for response to Change Request involves a one-time consequences of any postulated accidents all accident conditions and that sufficient (i.e., temporary) change affecting the occurring on Unit 2 during this AOT decay heat removal capability is available for Allowed Outage Time (AOT) for the extension was found to be bounded by the a LOCA/LOOP [Loss-of-Coolant Accident/ Emergency Service Water (ESW) previous analyses as described in the SAR. Loss-of-Offsite Power] on one unit and System; Residual Heat Removal Service The existing AOTs limit the amount of simultaneous safe shutdown of the other Water (RHRSW) System; the time that the plant can operate with certain unit. A slight reduction in the margin of equipment inoperable, where single failure safety is incurred during the proposed Suppression Pool Cooling, the criteria is still met. The minimum equipment extended AOT due to the increased risk that Suppression Pool Spray, and Low required to mitigate the consequences of an an event could occur in a fourteen day period Pressure Coolant Injection (LPCI) modes accident and/or safely shutdown the plant versus a three or seven day period. This of the Residual Heat Removal (RHR) will be operable or the plant will be increased risk is judged to be minimal due System; and Core Spray System to be shutdown. Therefore, by extending certain to the low probability of an event occurring Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39449 during the extended AOT and based on the RHRSW loop being out-of-service for 14 days operation of any systems or components, and following discussion of minimum ECCS on an operating unit. The Core Damage no changes to existing structures. Neither the [Emergency Core Cooling System]/decay heat Frequency (CDF) increased by 3.14x10-6, relocation of the seismic/meteorological removal requirements. from 5.11x10-6 /reactor-year to 8.25x10-6/ specifications to the UFSAR nor the The reduction in the margin of safety is not reactor-year. In absolute terms, this is not a elimination of the Special Report significant since the remaining operable significant increase in risk. In addition, the requirements represent changes that affect ECCS equipment is adequate to mitigate the modifications to be installed during this plant safety or alter existing accident consequences of any accident. This proposed extended AOT will allow for future analyses. conclusion is based on the information maintenance and inspections to be performed 2. Will not create the possibility of a new contained in the UFSAR [Updated Final on the ESW and RHRSW loops without or different kind of accident from any SAR] reference documents NEDO-24708A removing an entire loop from service, which previously evaluated. and NEDC-30936-A. These documents will reduce risk in the future. For example, The proposed changes are procedural in describe the minimum requirements to if the ESW loop unavailability, due to testing nature concerning the operability and successfully terminate a transient or LOCA or maintenance, is reduced by half, the CDF surveillance of instrumentation that are not initiating event (with scram), assuming will decrease by more than four percent. It safety related and will not impact the multiple failures with realistic conditions will also minimize the potential need for operation of any plant safety related were used to justify certain TS AOTs per future AOT extensions on these systems. component or equipment. Therefore, these UFSAR sections 6.3.1.1.2.o and 6.3.3.1. The Therefore, the implementation of the changes will not create a new or unevaluated minimum requirements for short term proposed one-time TS changes will not accident or operating condition. response to an accident would be either one involve a significant reduction in the margin 3. Will not involve a significant reduction LPCI pump or one Core Spray loop in of safety. in a margin of safety. conjunction with ADS [Automatic In accordance with the guidance provided Depressurization System], which would be The NRC staff has reviewed the by the NRC regarding the improvement of adequate to re-flood the vessel and maintain licensee’s analysis and, based on this Technical Specifications, SECY-93-067, the core cooling sufficient to preclude fuel review, it appears that the three proposed changes relocate the seismic and damage. For long term response, the standards of 10 CFR 50.92(c) are meteorological instrumentation portions of minimum requirements would be one loop of satisfied. Therefore, the NRC staff RHR for decay heat removal, along with the Technical Specifications, with the proposes to determine that the exception of the Special Report requirements, another low pressure ECCS loop. These amendment request involves no minimum requirements will be met since to the UFSAR. These instruments are not implementation of the proposed TS changes significant hazards consideration. safety related and do not have any associated will require the operability of HPCI [High Local Public Document Room safety margins which could be affected by Pressure Coolant Injection], ADS, two LPCI location: Pottstown Public Library, 500 this change. subsystems (or one LPCI subsystem and one High Street, Pottstown, Pennsylvania The NRC staff has reviewed the RHR subsystem during decay heat removal) 19464. licensee’s analysis and, based on this and one Core Spray subsystem be maintained Attorney for licensee: J. W Durham, review, it appears that the three during the 14 day period. A Special Sr., Esquire, Sr. V. P. and General standards of 10 CFR 50.92(c) are Procedure will be written to ensure the Counsel, Philadelphia Electric satisfied. Therefore, the NRC staff operability of specified components and that Company, 2301 Market Street, other appropriate compensatory measures are proposes to determine that the implemented. Philadelphia, Pennsylvania 19101 amendment request involves no Compensatory measures will be taken prior NRC Project Director: John F Stolz significant hazards consideration. to or during the proposed extended AOT for Public Service Electric & Gas Company, Local Public Document Room those fire regions that rely on one or more location: Pennsville Public Library, 190 safe shutdown methods which would all be Docket No. 50-354, Hope Creek Generating Station, Salem County, New S. Broadway, Pennsville, New Jersey unable to safely shutdown the plant with 08070 inoperable loops of the ESW and RHRSW Jersey systems or the inoperable systems that ESW Attorney for licensee: M. J. Date of amendment request: Wetterhahn, Esquire, Winston and or RHRSW support. These compensatory September 29, 1994 measures will offset the increased risk of a Strawn, 1400 L Street, NW., fire event occurring in the vulnerable areas, Description of amendment request: Washington, DC 20005-3502 during the fourteen day versus three day The proposed Technical Specification NRC Project Director: John F. Stolz AOT period. Therefore, the proposed changes represent revisions to Sections extended AOT does not adversely affect the 3/4.3.7.2 ‘‘Seismic Monitoring Public Service Electric & Gas Company, approved level of fire protection as described Instrumentation’’ and 3/4.3.7.3 Docket No. 50-354, Hope Creek in UFSAR Appendix 9A (Fire Protection ‘‘Meteorological Instrumentation.’’ The Generating Station, Salem County, New Evaluation Report). proposed revisions remove the Jersey A Special Procedure will be written to requirements from the Technical administratively control the requirement to Date of amendment request: maintain the operability of specified Specifications and relocates the November 23, 1994 appropriate descriptive information and components and implementation of any Description of amendment request: testing requirements to the Hope Creek appropriate compensatory measures which The proposed changes to the Technical Updated Final Safety Analysis Report are deemed necessary during the proposed Specifications (TSs) would revise TS AOT. In addition, operations personnel are (UFSAR). 4.8.2.1, ‘‘Electrical Power Systems D. C. fully qualified by normal periodic training to Basis for proposed no significant Sources, Surveillance Requirements,’’ respond to and mitigate a Design Basis hazards consideration determination:As and associated Bases Section B 3/4.8.2. Accident, including the actions needed to required by 10 CFR 50.91(a), the ensure decay heat removal while LGS Unit 1 The proposed changes would (1) licensee has provided its analysis of the and Unit 2 are in the operational increase the terminal voltage acceptance issue of no significant hazards configurations described within this criteria for the battery discharge test consideration, which is presented submittal. Accordingly, procedures are from 106 to 108 VDC, (2) delete a ‘‘one below: already in place that cover safe plant time only’’ test that is no longer shutdown and decay heat removal for 1. Will not involve a significant increase in situations applicable to those in the proposed the probability or consequences of an applicable, (3) delete the battery load AOTs. accident previously evaluated. profile from the TS, and (4) revise TS A Probabilistic Safety Assessment (PSA) The proposed changes involve no Table 4.8.2.1-1, ‘‘Battery Surveillance Study was performed for an ESW and hardware changes, no changes to the Requirements,’’ to agree more closely 39450 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices with the BWR4 Standard Technical review, it appears that the three induced vibration, and reactor internal Specification format. standards of 10 CFR 50.92(c) are pressure difference. Impact of ELLLA Basis for proposed no significant satisfied. Therefore, the NRC staff operation on anticipated transients without hazards consideration determination:As proposes to determine that the scram is evaluated in Section 7.6.1.7.2 of the required by 10 CFR 50.91(a), the UFSAR. Application of ELLLA region amendment request involves no extension to Reload 5/Cycle 6 has been licensee has provided its analysis of the significant hazards consideration. confirmed in GE Document No. 23A7219. issue of no significant hazards Local Public Document Room Because operation with the APRM flow- consideration, which is presented location: Pennsville Public Library, 190 biased scram/control rod block setpoints and below: S. Broadway, Pennsville, New Jersey allowable values is within the bases reviewed ....will not involve a significant increase in 08070 and approved by the NRC in the UFSAR the probability or consequences of an Attorney for licensee: M. J. [Updated Final Safety Analysis Report], this accident previously evaluated. Wetterhahn, Esquire, Winston and change does not significantly increase the The proposed changes restore the Strawn, 1400 L Street, NW., possibility or consequences of an accident conservatism to the battery voltage previously evaluated. requirements by raising the minimum Washington, DC 20005-3502 B. Transfer of RBM Setpoint Control to the acceptable terminal voltage for the 125 VDC NRC Project Director: John F. Stolz COLR system in order to support proper operation Public Service Electric & Gas Company, The proposed changes would transfer of the connected loads. This change will Docket No. 50-354, Hope Creek control of the setpoint and allowable value cause no change in the probability of any Generating Station, Salem County, New for the rod block monitor (RBM) - Upscale accident and will, by providing increased rod block to the Core Operating Limits Report support for connected loads, provide Jersey (COLR). Technical Specification 6.9.1.9, assurance [that] the consequences of Date of amendment request: ‘‘Core Operating Limits Report,’’ requires that previously evaluated accidents remain November 28, 1994 the analytical methods used to determine within limits. Removal of the load profile Description of amendment request: core operating limits be those previously table does not affect the surveillance test The proposed Technical Specification reviewed and approved by the NRC and that loading which is contained in the station (TS) revisions provide as follows: (1) the core operating limits be determined such procedures. The (*) footnote deletion is that all applicable limits of the safety purely editorial and has no safety bearing. The setpoints and allowable values for analysis are met. Table changes agree with the format and the Average Power Range Monitor The setpoint and allowable value wording of the improved BWR4 Standard (APRM) flow-biased upscale scram/ incorporate a controlling value which will be Technical Specifications. control rod block would be modified to specified in the COLR and noted as such by 2....will not create the possibility of a new improve operating margin in the reference in the Technical Specifications. or different kind of accident from any Extended Load Line Limit Analysis Therefore, the setpoint and allowable value previously evaluated. (ELLLA) region; (2) The proposed would continue to be controlled in a manner The revision of the battery sizing changes to the Rod Block Monitor that would ensure that safety analysis limits calculations did not change the design base are met and implementation of the proposed requirement to supply the designed load for (RBM) trip function would transfer changes would not reduce the level of a duty cycle of 4-hours. The proposed change control of the setpoint and allowable assurance provided by the existing Technical to the minimum acceptable battery terminal value for the RBM - upscale rod block Specifications. Based upon the above voltage for the 125 VDC system ensures to the Core Operating Limits Report information, we conclude that proper voltages at the battery loads. No other (COLR); (3) For the Reactor Coolant implementation of the proposed change changes to the physical plant or to the System (RCS) recirculation flow upscale would not significantly increase the manner in which it is operated are caused by trip function, the proposed changes probability or consequences of an accident the proposed amendment; therefore, there is would revise the trip setpoint and previously evaluated. C. RCS Recirculation Flow Revisions no new or different kind of accident created allowable value to reflect 105% of rated by this change. The original analysis used to support 3....will not involve a significant reduction core flow. operation up to 105% of rated core flow is in a margin of safety. Basis for proposed no significant contained in NEDC-31487. NEDC-31487 The revision of the battery sizing hazards consideration determination:As addresses the full range of transient and calculations did not change the design base required by 10 CFR 50.91(a), the accident events associated with operation up requirement to supply the designed load for licensee has provided its analysis of the to 105% of rated core flow. The affects of a duty cycle of 4-hours; however, battery issue of no significant hazards operation with the revised RCS recirculation capacity sizing parameter of end cell voltage consideration, which is presented flow upscale trip setpoint and allowable was changed to a more conservative value to below: value are bounded by the analysis presented account for minimum load voltage 1. Would not involve a significant increase in NEDC-31487. requirements. Load profiles for these in the probability or consequences of an In addition, cycle specific analysis batteries were slightly modified to accident previously evaluated. performed for Reload 5/Cycle 6, have incorporate more precise yet conservative A. Changes to APRM Flow-Biased Scram/ incorporated the assumption of operation up load current values. These batteries were Control Rod Block to 105% of rated core flow and have evaluated using a 25% additional capacity The proposed changes to the Average confirmed that operation is within allowable margin for aging as required by IEEE-450. In Power Range Monitor (APRM) flow-biased design limits. addition, the batteries have a design margin scram/control rod block setpoints and Based on the above information, we of 5 to 10% for load growth and/or less than allowable values were evaluated using NRC conclude that the proposed change would optimum operating condition of the battery; approved procedures and methods. The not significantly increase the probability or thereby, maintaining safety margins. results of this evaluation are demonstrated in consequences of an accident previously Additionally, changes are comparable to the NEDC-31487. Application of this change in evaluated. format and ACTIONS of the improved BWR4 APRM flow-biased scram/control rod block 2. Would not create the possibility of STS. Permitting 31 days to restore a battery setpoints and allowable values to Reload 5/ a new or different kind of accident from to within CATEGORY A and/or B limits per Cycle 6 is confirmed in General Electric any accident previously evaluated. the improved BWR4 STS does not involve a Document No. 23A7219. A. Changes to APRM Flow-Biased Scram/ reduction in any margin of safety since the Analysis presented in NEDC-31487 Control Rod Block battery, in Category C, remains operable, as demonstrate that performance in the ELLLA The proposed changes to the APRM flow- discussed in the BASES. region is within design limits for biased scram/control rod block setpoints and The NRC staff has reviewed the overpressure protection, stability, loss-of- allowable values would not alter the function licensee’s analysis and, based on this coolant, containment, reactor internals, flow- of the APRM system nor involve any type of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39451 plant modification. In addition, operation B. Transfer of RBM Setpoint Control to the Limiting Conditions for Operation with the revised APRM flow-biased scram/ COLR (LCOs) would be eliminated. control rod block setpoints and allowable The proposed transfer of control of the Basis for proposed no significant values would not create any new operating RBM setpoint and allowable value to the hazards consideration determination:As COLR would not affect the methodology for modes, accident scenarios, equipment failure required by 10 CFR 50.91(a), the modes, or fission product release paths. establishing the core operating limits. The Based upon the above information, we setpoint and allowable value are modified to licensee has provided its analysis of the conclude that the proposed changes would incorporate a controlling value which will be issue of no significant hazards not create the possibility of a new or different included in the COLR and indicated as such consideration, which is presented kind of accident from any accident by reference in the Technical Specifications. below: previously evaluated. Therefore, the setpoint and allowable value 1. Will not involve a significant increase in would continue to be controlled in a manner the probability or consequences of an that would ensure that safety analysis limits accident previously evaluated. B. Transfer of RBM Setpoint Control to the are met. We conclude that implementation of The proposed changes involve no COLR the proposed changes would not significantly hardware changes, no changes to existing The proposed transfer of control of the reduce a margin of safety. structures, and no changes to the operation RBM setpoint and allowable value to the C. RCS Recirculation Flow Revisions of any systems or components. Specifically, COLR would not alter the function of the The HCGS was licensed to operate up to the deletion of the LCO’s by this submittal RBM system nor involve any type of plant 105% of rated core flow as part of will not alter established turbine overspeed modification. In addition, operation with the Amendment 15. The analysis used to justify protection system operation. Procedural revised setpoint and allowable value would operation up to 105% of rated core flow is guidance will be provided in the event of an not create any new operating modes, accident contained in NEDC-31487. NEDC-31487 inoperable control, stop, or intermediate scenarios, equipment failure modes, or addresses the full range of transient and valve to place the system in a safe condition. fission product release paths. Based upon the accident events associated with operation up The relocation of this specification to the above information, we conclude that the to 105% of rated core flow. The affects of UFSAR and surveillance procedures will proposed changes would not create the operation with the revised RCS recirculation continue to ensure that the probability of possibility of a new or different kind of flow upscale trip setpoint and allowable unacceptable damage to safety-related accident from any accident previously value are bounded by the analysis presented structures, systems, and components from evaluated. in NEDC-31487. turbine missiles remains acceptably low. C. RCS Recirculation Flow Revisions In addition, cycle specific analysis Relocation of this specification’s Bases and The proposed changes would not alter the performed for Reload 5/Cycle 6, have Surveillance Requirements to the UFSAR and function of the RCS recirculation flow incorporated the assumptions of operation up surveillance procedures, respectively, and upscale trip function nor involve any type of to 105% of rated core flow and have the deletion of the LCO’s represents changes plant modification. In addition, operation confirmed that operation is within allowable that do not affect plant safety and do not alter with the revised RCS recirculation flow design limits. existing accident analyses. upscale trip setpoint and allowable value Based on the above information, we 2. Will not create the possibility of a new would not create any new operating modes, conclude that the proposed changes would or different kind of accident from any accident scenarios, equipment failure modes, not significantly reduce a margin of safety. previously evaluated. or fission product release paths. Based upon The NRC staff has reviewed the The proposed changes are procedural in the above information, we conclude that the licensee’s analysis and, based on this nature concerning the location of the proposed changes would not create the review, it appears that the three descriptive information and surveillance possibility of a new or different kind of standards of 10 CFR 50.92(c) are requirements for the turbine overspeed accident from any accident previously satisfied. Therefore, the NRC staff protection system. Removing these evaluated. proposes to determine that the specifications from the Technical Specifications and placing them in the 3. Would not involve a significant amendment request involves no reduction in a margin of safety. UFSAR and surveillance procedures will not A. Changes to APRM Flow-Biased Scram/ significant hazards consideration. alter the operation of the turbine overspeed Control Rod Block Local Public Document Room protection system or its ability to perform its The Bases for Hope Creek Technical location: Pennsville Public Library,190 intended function. Procedural guidance will Specification 2.2.1 state that the APRM S. Broadway, Pennsville, New Jersey be provided to assist in placing the system setpoints were selected to provide adequate 08070 in a safe condition while maintenance and margin for the safety limits while allowing Attorney for licensee: M. J. testing of this system will continue in operating margins that reduce the possibility Wetterhahn, Esquire, Winston and accordance with the turbine manufacturers of unnecessary shutdowns. Strawn, 1400 L Street, NW., recommendations taking into consideration The proposed changes would ensure that Washington, DC 20005-3502 plant operating experience and ASME these objectives are met. The Minimum NRC Project Director: John F. Stolz guidance. Therefore, these changes will not Critical Power Ratio (MCPR) operating limit create a new or unevaluated accident or specified in the Hope Creek COLR was Public Service Electric & Gas Company, operating condition. determined using the APRM flow-biased Docket No. 50-354, Hope Creek 3. Will not involve a significant reduction scram/control rod block setpoints and Generating Station, Salem County, New in a margin of safety. allowable values proposed in this Jersey The proposed changes relocate the Turbine amendment application and has been chosen Overspeed Protection System portion of the to ensure that the cladding safety limit would Date of amendment request: January Technical Specifications to the UFSAR and not be violated during normal plant 11, 1995 surveillance procedures in accordance with operations and anticipated transients. Since Description of amendment request: guidance provided by the NRC Final Policy the operating limit MCPR is chosen such that The proposed Technical Specification Statement regarding the improvement of the cladding safety limit is maintained, (TS) revision provides changes to TS Technical Specifications. The requirements adequate margins for the safety limits are Section 3/4.3.8 ‘‘Turbine Overspeed that will reside in the UFSAR for the turbine ensured. The proposed changes would also Protection System.’’ The proposed overspeed protection system will ensure that the system remains capable of protecting serve to ensure that the objective of avoiding revision removes these requirements unnecessary shutdowns is met by furnishing against excessive turbine overspeed. greater margin between the operating from the TS and relocates the Bases to Therefore, the proposed changes will not envelope and the setpoint at lower flows. the Hope Creek Updated Final Safety involve a significant reduction in any Based on the above information, we Analysis Report (UFSAR) and the margins of safety. conclude that the proposed changes would Surveillance Requirements to the The NRC staff has reviewed the not significantly reduce a margin of safety. applicable surveillance procedures. The licensee’s analysis and, based on this 39452 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices review, it appears that the three descriptive information and surveillance 1. Will not involve a significant increase in standards of 10 CFR 50.92(c) are requirements for the explosive gas mixture the probability or consequences of an satisfied. Therefore, the NRC staff monitoring instrumentation. Removing these accident previously evaluated. proposes to determine that the specifications from the Technical The proposed change involves no Specifications and placing them in the hardware changes, no changes to the amendment request involves no UFSAR and surveillance procedures will not operation of any systems or components, and significant hazards consideration. alter the operation of the explosive gas no changes to existing structures. The Local Public Document Room monitors or their ability to perform intended revision of the control rod movement test location: Pennsville Public Library, 190 functions. Maintenance and testing of these frequency represents a change that does not S. Broadway, Pennsville, New Jersey monitors will continue based upon the affect plant safety and does not alter existing 08070 manufacturers’ recommendations taking into accident analyses. Attorney for licensee: M. J. consideration plant operating experience. 2. Will not create the possibility of a new Wetterhahn, Esquire, Winston and Therefore, these changes will not create a or different kind of accident from any Strawn, 1400 L Street, NW., new or unevaluated accident or operating previously evaluated. Washington, DC 20005-3502 condition. The proposed change is procedural in 3. Will not involve a significant reduction NRC Project Director: John F. Stolz nature concerning the frequency of control in a margin of safety. rod movement tests for all withdrawn control Public Service Electric & Gas Company, The proposed changes relocate the rods after a control rod has been determined Docket No. 50-354, Hope Creek Explosive Gas Mixture specifications from to be immovable due to excessive friction or Generating Station, Salem County, New the Technical Specifications to the UFSAR mechanical interference. The methodology and surveillance procedures in accordance Jersey for determining additional immovable with guidance provided by the NRC Final control rods remain unchanged. The Date of amendment request: January Policy Statement regarding the improvement proposed change while slightly increasing 20, 1995 of Technical Specifications. The the possibility of an undetected immovable Description of amendment request: requirements that will reside in the UFSAR control rod will not create a new or The proposed Technical Specification and surveillance procedures for the explosive unevaluated accident or operating condition. (TS) revision represents changes to TS gas mixture monitoring instrumentation will 3. Will not involve a significant reduction Section 3/4.11.2.6 ‘‘Explosive Gas ensure that the ability to determine main in a margin of safety. condenser hydrogen concentrations is Mixture,’’ TS Table 3.3.7.11-1 The proposed change is in accordance with properly maintained. Therefore, the proposed recommendations provided by the NRC ‘‘Radioactive Gaseous Effluent changes will not involve a significant regarding the improvement of Technical Monitoring Instrumentation,’’ and TS reduction in any margins of safety. Specifications. This change will result in the Table 4.3.7.11-1 ‘‘Radioactive Gaseous The NRC staff has reviewed the perpetuation of current safety margins while Effluent Monitoring Instrumentation licensee’s analysis and, based on this reducing regulatory burden and decreasing Surveillance Requirements.’’ The review, it appears that the three equipment degradation. proposed revision would remove these standards of 10 CFR 50.92(c) are The NRC staff has reviewed the TS from the Technical Specifications satisfied. Therefore, the NRC staff licensee’s analysis and, based on this and relocate the Bases to the Hope Creek proposes to determine that the review, it appears that the three Updated Final Safety Analysis Report amendment request involves no standards of 10 CFR 50.92(c) are (UFSAR) and the Surveillance significant hazards consideration. satisfied. Therefore, the NRC staff Requirements to the applicable Local Public Document Room proposes to determine that the surveillance procedures. The Limiting location: Pennsville Public Library, 190 amendment request involves no Conditions for Operation (LCOs) would S. Broadway, Pennsville, New Jersey significant hazards consideration. be eliminated. 08070. Local Public Document Room Basis for proposed no significant location: Pennsville Public Library, 190 Public Service Electric & Gas Company, hazards consideration determination:As S. Broadway, Pennsville, New Jersey Docket No. 50-354, Hope Creek required by 10 CFR 50.91(a), the 08070 Generating Station, Salem County, New licensee has provided its analysis of the Attorney for licensee: M. J. Jersey issue of no significant hazards Wetterhahn, Esquire, Winston and consideration, which is presented Date of amendment request: January Strawn, 1400 L Street, NW., below: 20, 1995 Washington, DC 20005-3502 1. Will not involve a significant increase in Description of amendment request: NRC Project Director: John F. Stolz the probability or consequences of an The proposed change to the Technical accident previously evaluated. Specifications (TS) would revise TS The Cleveland Electric Illuminating The proposed changes involve no 4.1.3.1.2.b, ‘‘Control Rods - Surveillance Company, Centerior Service Company, hardware changes, no changes to the Requirement’’ to change the required Duquesne Light Company, Ohio Edison operation of any systems or components, and action to be taken when a control rod Company, Pennsylvania Power no changes to existing structures. The becomes immovable due to excessive Company, Toledo Edison Company, relocation of this specification to the UFSAR Docket No. 50-440, Perry Nuclear and surveillance procedures will continue to friction or mechanical interference from ‘‘at least once per’’ 24 hours to ‘‘within’’ Power Plant, Unit No. 1, Lake County, ensure that the entrainment of hydrogen in Ohio the main condenser is monitored and 24 hours. The other control rods would controlled. Relocation of this specification’s be tested within 24 hours and every 7 Date of amendment request: June 1, Bases and Surveillance Requirements to the days thereafter, as opposed to the 1995 UFSAR and surveillance procedures, current requirement of testing every 24 Description of amendment request: respectively, and the deletion of the LCO’s hours. The proposed change would revise the represent changes that do not affect plant Basis for proposed no significant Technical Specifications to make them safety and do not alter existing accident hazards consideration determination:As more restrictive regarding control rod analyses. 2. Will not create the possibility of a new required by 10 CFR 50.91(a), the drive (CRD) scram time testing. CRD or different kind of accident from any licensee has provided its analysis of the scram time testing would be required previously evaluated. issue of no significant hazards following maintenance prior to The proposed changes are procedural in consideration, which is presented considering the CRD operable, and nature concerning the location of the below: could be performed at any reactor Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39453 pressure. Additional testing would be Toledo Edison Company, Centerior or different types of failures or accident required when reactor coolant pressure Service Company, and The Cleveland initiators are introduced by the proposed is greater than or equal to 950 psig and Electric Illuminating Company, Docket changes. prior to 40 percent rated thermal power. No. 50-346, Davis-Besse Nuclear Power 3. Not involve a significant reduction in a margin of safety because the proposed Basis for proposed no significant Station, Unit No. 1, Ottawa County, changes are clarifications and the hazards consideration determination:As Ohio incorporations of the guidance provided by required by 10 CFR 50.91(a), the Date of amendment request: April 10, NUREG-1430, and continue to ensure the licensee has provided its analysis of the 1995 availability and capability of the Auxiliary issue of no significant hazards Description of amendment request: Feedwater System, Service Water System and consideration which is presented below: The proposed amendment would revise the Motor Driven Feedwater Pump System when called upon to perform their functions. 1. Does the change involve a significant the following Technical Specifications increase in the probability or consequences The proposed changes will not adversely (TS) and their associated Bases: TS 3/ impact any safety analysis assumptions. of an accident previously evaluated? 4.7.1.2, ‘‘Auxiliary Feedwater System,’’ The proposed change provides more The NRC staff has reviewed the to clarify Action ‘‘a’’ by inserting ‘‘or licensee’s analysis and, based on this stringent requirements for operation of the ≥ facility. These more stringent requirements both’’ steam generator s’’ and to remove review, it appears that the three do not result in operation that will increase references to pressure indicators and standards of 10 CFR 50.92(c) are the probability of initiating an analyzed event specific pressure readings and adding satisfied. Therefore, the NRC staff and do not alter assumptions relative to performance based requirements; TS 3/ proposes to determine that the mitigation of an accident or transient event. 4.7.1.3, ‘‘Condensate Storage Tanks,’’ to amendment request involves no The more restrictive requirements continue modify the Limiting Condition for significant hazards consideration. to ensure process variables, structures, Operation (LCO) to more closely Local Public Document Room systems and components are maintained conform to standard TS; and TS 3/ consistent with the safety analysis and location: University of Toledo Library, licensing basis. Therefore, this change does 4.7.1.7, ‘‘Motor Driven Feedwater Pump Documents Department, 2801 Bancroft not involve a significant increase in the System,’’ to consolidate the Avenue, Toledo, Ohio 43606. probability or consequences of an accident requirements of 2 current surveillance Attorney for licensee: Jay E. Silberg, previously evaluated. requirements and clarify the operability Esquire, Shaw, Pittman, Potts and 2. Does the change create the possibility of requirements when local manual valves Trowbridge, 2300 N Street, NW., a new or different kind of accident from any are realigned for testing purposes. Washington, DC 20037. accident previously evaluated? Basis for proposed no significant NRC Project Director: Gail H. Marcus The proposed change does not involve a hazards consideration determination:As physical alteration of the plant (no new or required by 10 CFR 50.91(a), the Toledo Edison Company, Centerior different type of equipment will be installed) licensee has provided its analysis of the Service Company, and The Cleveland or changes in the methods governing normal issue of no significant hazards Electric Illuminating Company, Docket plant operation. The proposed change does No. 50-346, Davis-Besse Nuclear Power impose different requirements. However, consideration, which is presented below: Station, Unit No. 1, Ottawa County, these changes are consistent with Ohio assumptions made in the safety analysis and Toledo Edison has reviewed the proposed licensing basis. Thus, this change does not changes and determined that asignificant Date of amendment request: June 1, create the possibility of a new or different hazards consideration does not exist because 1995 kind of accident from any accident operation of the Davis-besse Nuclear Power Description of amendment request: previously evaluated. Station, Unit Number 1, in accordance with The proposed amendment would these changes would: 3. Does this change involve a significant change the allowed outage time from 72 reduction in a margin of safety? a. Not involve a significant increase in the probability of an accident previously hours to 7 days for one unavailable The imposition of more restrictive emergency diesel generator (EDG) as requirements either has no impact on or evaluated because no change is being made increase in the margin of plant safety. As to any accident initiator. No previous detailed in Technical Specification provided in the discussion of the change, analyzed accident scenario is changed, and 3.8.1.1, ‘‘AC Power Sources, Operating,’’ each change in this category is by definition initiating conditions and assumptions remain and its associated Bases 3.0.5. providing additional restrictions to enhance as previously analyzed. The proposed Basis for proposed no significant plant safety. The change maintains changes are clarifications and the hazards consideration determination:As requirements within safety analyses and incorporations of the guidance provided by required by 10 CFR 50.91(a), the licensing bases. Therefore, this change does NUREG-1430. Therefore, it can be concluded that the proposed changes do not involve a licensee has provided its analysis of the not involve a significant reduction in a issue of no significant hazards margin of safety. significant increase in the probability of an accident previously evaluated. consideration, which is presented The NRC staff has reviewed the b. Not involve a significant increase in the below: licensee’s analysis and, based on this consequences of an accident previously Toledo Edison has reviewed the proposed review, it appears that the three evaluated because the proposed changes do change and determined that a significant standards of 10 CFR 50.92(c) are not affect accident conditions or assumptions hazards consideration does not exist because satisfied. Therefore, the NRC staff used in evaluating the radiological operation of the Davis-Besse Nuclear Power proposes to determine that the consequences of an accident. The proposed Station (DBNPS), Unit No. 1, in accordance amendment request involves no changes do not alter the source term, with this change would: containment isolation or allowable 1a. Not involve a significant increase in the significant hazards consideration. radiological releases. probability of an accident previously Local Public Document Room 2. Not create the possibility of a new or evaluated because the proposed change to location: Perry Public Library, 3753 different kind of accident from any accident increase the allowed outage time for one Main Street, Perry, Ohio 44081 previously evaluated because the proposed emergency diesel generator from three (3) Attorney for licensee: Jay Silberg, Esq., changes do not change the way the plant is days to seven (7) days does not make a Shaw, Pittman, Potts & Trowbridge, operated and, no new or different failure change to any accident initiator, initiating modes have been defined for any plant condition or assumption. The accident 2300 N Street, NW., Washington, DC system or component important to safety, nor previously evaluated in the DBNPS Updated 20037 has any limiting single failure been identified Safety Analysis Report (USAR) Section NRC Project Director: Gail H. Marcus as a result of the proposed changes. No new 15.2.9, Loss of All AC Power to the Station 39454 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Auxiliaries (Station Blackout), is not affected Toledo Edison Company, Centerior and have no bearing on the probability of an by this proposed change. The proposed Service Company, and The Cleveland accident previously evaluated. change does not involve a significant change Electric Illuminating Company, Docket 1b. Not involve a significant increase in the to the plant design or operation, only to the No. 50-346, Davis-Besse Nuclear Power consequences of an accident previously allowed outage time, and based on a review evaluated because the proposed changes do Station, Unit No. 1, Ottawa County, not invalidate accident conditions or of the available alternate A.C. power sources, Ohio assumptions used in evaluating the the effect on probabilistic risk at power, the Date of amendment request: June 7, radiological consequences of any accident. effect on shutdown risk, and maintenance he analysis results for a fuel handling planning and scheduling, this change has 1995 Description of amendment request: accident inside containment, as presented in been determined to be acceptable. The proposed amendment would revise Section 15.4.7.3 of the DBNPS USAR, are 1b. Not involve a significant increase in the well within the 10 CFR 100 guideline values. Technical Specification 3/4.9.4, consequences of an accident previously Since the analysis does not take credit for evaluated because the proposed change does Refueling Operations - Containment containment isolation, the status of the not invalidate assumptions used in Penetrations, and associated Bases 3/ personnel air lock has no impact on the evaluating the radiological consequences of 4.9.4, Containment Penetrations. The acceptability of the results. In the event of a fuel handling accident, release of radioactive an accident, does not alter the source term or proposed changes include revising the Limiting Condition for Operation (LCO) material will continue to be minimized since containment isolation and does not provide the air lock door will remain capable of being a new radiation release path or alter potential 3.9.4.b to allow both doors of the containment personnel airlock to be closed. Further, the proposed change could radiological releases. significantly reduce the dose to workers in 2. Not create the possibility of a new or open during core alterations or the containment in the event of a fuel different kind of accident from any movement of irradiated fuel within the handling accident by speeding the previously evaluated because the proposed containment, provided that certain containment evacuation process. change does not introduce a new or different specified conditions are meet. Since an engineering evaluation described accident initiator or introduce a new or Additional changes are proposed to in proposed Bases 3/4.9.4 will ensure that a different equipment failure mode or revise or clarify TS LCO 3.9.4.c, TS particular containment penetration closure mechanism. Action 3.9.4.a, and TS Surveillance technique is capable of restricting the release of radioactive material from a fuel handling 3. Not involve a significant reduction in Requirement 4.9.4, and modify the accident, the proposed change to TS LCO the margin of safety because the proposed Bases to reflect the requested changes. Basis for proposed no significant 3.9.4.c.1, confirming that an equivalent change does not significantly reduce the means may be used to close a containment margin to safety which exists in the present hazards consideration determination:As penetration, has no adverse effect on the Technical Specification action statements. required by 10 CFR 50.91(a), the consequences of an accident previously The DBNPS USAR Section 15.2.9 evaluates licensee has provided its analysis of the evaluated. the acceptability of the loss of all A.C. power issue of no significant hazards The proposed clarification of TS LCO to the station, including the loss of both consideration, which is presented 3.9.4.c, and the proposed changes to TS EDGs, and the margin of safety in this below: Action 3.9.4.a, TS SR 4.9.4, and TS Bases 3/ analysis is not affected by the proposed Toledo Edison has reviewed the proposed 4,9.4 are administrative changes and have no change. in addition, since the issuance of the changes and determined that a significant effect on the consequences of an accident previously evaluated. original DBNPS Operating License Technical hazards consideration does not exist because operation of the Davis-Besse Nuclear Plant 2. Not create the possibility of a new or Specifications Toledo Edison has installed a (DBNPS), Unit No. 1, in accordance with different kind of accident from any accident Station Blackout Diesel Generator (SBODG), these changes would: previously evaluated because there are no comparable in continuous rating to the EDGs 1a. Not involve a significant increase in the new failure modes or mechanisms associated and capable of providing emergency A.C. probability of an accident previously with the proposed changes, nor do the power in the event all three offsite 345 kV evaluated because no Updated Safety proposed changes involve any modification transmission lines and the two EDGs are Analysis Report (USAR) accident initiators of plant equipment or changes in plant unavailable. This has positive effect on are affected by the proposed changes. operational limits. maintaining the margin to safety which exists The proposed change to TS LCO 3.9.4.b As described above, the analysis results for in the Technical Specifications with a three would allow both doors of the containment a fuel handling accident inside containment day allowed outage time, which was personnel air lock to be open during core does not take credit for containment alterations or movement of irradiated fuel isolation. Thus the proposed change to TS established prior to installation of the within the containment, provided that LCO 3.9.4.b to allow both doors of the SBODG. certain specified conditions are met. The containment personnel air lock to be open The NRC staff has reviewed the containment personnel air lock is not an during core alterations or movement of licensee’s analysis and, based on this initiator to any accident. Whether the irradiated fuel within the containment could review, it appears that the three containment personnel air lock doors are affect the release path for radioactive material standards of 10 CFR 50.92(c) are open or closed during fuel movement and released during a fuel handling accident, core alterations has no effect on the however no new or different kind of accident satisfied. Therefore, the NRC staff probability of any accident previously will result. proposes to determine that the evaluated. 3. Not involve a significant reduction in amendment request involves no The proposed clarification of TS LCO the margin of safety. significant hazards consideration. 3.9.4.c, changing the term ‘‘outside The analysis results for a fuel handling atmosphere’’ to ‘‘atmosphere outside accident inside containment, as presented in Local Public Document Room containment,’’ and the proposed change to [Section 15.4.7.3 of] the DBNPS USAR, are location: University of Toledo Library, TS LCO 3.9.4.c.1, confirming that, in well within the 10 CFR 100 guideline values. Documents Department, 2801 Bancroft addition to a manual or automatic isolation Since the analysis does not take credit for Avenue, Toledo, Ohio 43606. valve, or a blind flange, equivalent means containment isolation, the status of the may be used to close a containment personnel air lock has no impact on the Attorney for licensee: Jay E. Silberg, penetration, have no bearing on the acceptability of the results. Esquire, Shaw, Pittman, Potts and probability of an accident previously The proposed change to TS LCO 3.9.4.c.1 Trowbridge, 2300 N Street, NW., evaluated. regarding the use of equivalent means of Washington, DC 20037. The proposed changes to TS Action 3.9.4.a, containment penetration closure has no NRC Project Director: Gail H. Marcus TS Surveillance Requirement (SR) 4.9.4, and adverse impact on the margin of safety since TS Bases 3/4.9.4 are administrative changes an equivalent containment penetration Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39455 closure technique will provide the same changes do not involve a significant increase licensee has provided its analysis of the assurance of containment closure during core in the probability of an accident previously issue of no significant hazards alterations or movement of irradiated fuel evaluated. consideration, which is presented inside containment. 1b. Not involve a significant increase in the below: The various administrative changes and consequences of an accident previously Specifically, operation of the Surry Power clarifications proposed will not reduce the evaluated because the proposed changes do Station in accordance with the proposed margin of safety. not affect accident conditions or assumptions change will not: The NRC staff has reviewed the used in evaluating the radiological (1) Involve a significant increase in the licensee’s analysis and, based on this consequences of an accident. The proposed probability or consequences of an accident review, it appears that the three changes do not alter the source term, previously evaluated. standards of 10 CFR 50.92(c) are containment isolation or allowable Surveillance and testing requirements are satisfied. Therefore, the NRC staff radiological releases. necessary to assure that RHR and interfacing 2. Not create the possibility of a new or systems’ reliability is maintained. Existing proposes to determine that the different kind of accident from any accident amendment request involves no analyses demonstrate that adequate previously evaluated because the proposed shutdown cooling will be maintained with significant hazards consideration. changes do not change the way the plant is Local Public Document Room one train of RHR Operable and in service. operated, and no new or different failure Analyses also demonstrate that alternate location: University of Toledo Library, modes have been defined for any plant shutdown cooling modes remain available Documents Department, 2801 Bancroft system or component important to safety, nor with adequate decay heat removal capability. Avenue, Toledo, Ohio 43606. has any limiting single failure been identified Furthermore, the opposite train of RHR Attorney for licensee: Jay E. Silberg, as a result of the proposed changes. No new remains available while in the two hour Esquire, Shaw, Pittman, Potts and or different types of failures or accident surveillance AOT. The response time and Trowbridge, 2300 N Street, NW., initiators are introduced by the proposed operator actions required to place the Washington, DC 20037. changes. available RHR train in service are consistent NRC Project Director: Gail H. Marcus 3. Not involve a significant reduction in a with similar operator response times and margin of safety because Seismic actions Toledo Edison Company, Centerior Instrumentation, Meteorological required to place alternate shutdown Service Company, and The Cleveland Instrumentation, and Reactor Coolant System cooling modes in service. The administrative Electric Illuminating Company, Docket Vents are not inputs in the calculation of any controls and procedures in place assure No. 50-346, Davis-Besse Nuclear Power safety margin with regard to TS Safety adequate shutdown cooling capability is Limits, Limiting Safety System Settings, Station, Unit No. 1, Ottawa County, maintained as supported by existing other TS Limiting Conditions for Operation, analyses. Ohio or other previously defined margins for any The existing safety analyses demonstrate Date of amendment request: June 23, structure, system, or component important to that Reactor Coolant System [RCS] integrity 1995 safety. will be maintained when SI accumulator Description of amendment request: The NRC staff has reviewed the pressure is below the pressurizer PORV The proposed amendment would licensee’s analysis and, based on this [power operated relief valve] LTOPS [low relocate Technical Specifications (TS) 3/ review, it appears that the three temperature overpressure system] setpoint. Therefore, SI accumulator isolation is not 4.3.3.3 - Seismic Instrumentation, TS 3/ standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff required to ensure Reactor Coolant System 4.3.3.4 - Meteorological integrity. With RCS temperature below the Instrumentation, and TS 3/4.4.11 - proposes to determine that the LTOPS enabling temperature, automatic Reactor Coolant System Vents and amendment request involves no actuation of the pressurizer PORVs or other associated Bases. significant hazards consideration. TS specified relief paths ensure the assumed Basis for proposed no significant Local Public Document Room design basis reactor vessel beltline flaw will hazards consideration determination:As location: University of Toledo Library, not propagate under design basis low required by 10 CFR 50.91(a), the Documents Department, 2801 Bancroft temperature overpressurization accident licensee has provided its analysis of the Avenue, Toledo, Ohio 43606. conditions. System design and configuration Attorney for licensee: Jay E. Silberg, adequately mitigate an LTOPS actuation due issue of no significant hazards to an SI accumulator discharge with no consideration, which is presented Esquire, Shaw, Pittman, Potts and negative consequences regarding RCS below: Trowbridge, 2300 N Street, NW., structural integrity or SBLOCA [small break Toledo Edison has reviewed the proposed Washington, DC 20037. loss-of-coolant accidents] concerns. changes and determined that a significant NRC Project Director: Gail H. Marcus Therefore, the proposed Allowed Outage hazards consideration does not exist because Time for an inoperable RHR loop and the operation of the Davis-Besse Nuclear Power Virginia Electric and Power Company, ability to depressurize the SI accumulator in Station, Unit Number 1, in accordance with Docket Nos. 50-280 and 50-281, Surry lieu of SI accumulator isolation do not these changes would: Power Station, Unit Nos. 1 and 2, Surry increase the probability or consequence of 1a. Not involve a significant increase in the County, Virginia any previously analyzed accidents. probability of an accident previously Date of amendment request: July 14, (2) Create the possibility of a new or evaluated because no change is being made different kind of accident from any to any accident initiator. No previous 1995 previously evaluated. analyzed accident scenario is changed, and Description of amendment request: The proposed two hour AOT for one train initiating conditions and assumptions remain The proposed Technical Specifications of the RHR System will preclude the as previously analyzed. (TS) changes would provide a two-hour possibility of a Technical Specification The proposed changes are deletions and allowed outage time (AOT) for one violation for conditions where a train of RHR relocations of specifications that do not meet residual heat removal (RHR) pump to is out of service for surveillance testing. the NRC Final Policy Statement [58 FR accommodate plant safety and Calculations by Westinghouse with 39132, dated July 22, 1993] criteria for emergency power systems surveillance evaluations and supporting analyses inclusion in TS. Furthermore, these testing and permit depressurizing safety performed by Virginia Power, confirm the relocations and deletions are consistent with adequacy of decay heat removal with one the NRC guidance for TS provided by the injection (SI) accumulators in lieu of RHR train in service, and multiple alternate ‘‘Improved Standard Technical accumulator isolation. shutdown cooling modes remain available. Specifications for Babcock and Wilcox Basis for proposed no significant There are no plant modifications required by Plants,’’ NUREG-1430, Revision 0. Therefore, hazards consideration determination:As this proposed TS change. Further, the it can be concluded that the proposed required by 10 CFR 50.91(a), the proposed change does not invalidate any 39456 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices component design criteria or the assumptions integrity. Technical Specifications previously in the Updated Safety Analysis of the UFSAR [updated final safety analysis administrative controls that prevent Report (USAR) are not increased due to the report] accident analyses. The RHR System is inadvertent charging pump operation, proposed technical specification changes. being operated in a manner consistent with maintain adequate relief paths, and restrict The Technical Specification changes being the design basis and configuration of the Steam Generator primary to secondary requested are to reflect revised calculational system and is supported by existing analyses temperature differential remain in place. methods to be used for core reload design, and procedural controls. Consequently, the Technical Specifications starting with Cycle 9. There are no changes There are no new failure modes or change ensures that an inadvertent SI being made to any licensed design mechanisms associated with the proposed accumulator discharge cannot challenge RCS parameters from previous cycles. Thus, it is change to allow the depressurizing of a SI structural integrity during LTOPS conditions concluded that the probability and accumulator to a pressure value below the when SI accumulator pressure is below the consequences of the accidents previously LTOPS setpoint. The LTOPS enabling pressurizer PORV LTOPS setpoint. evaluated in the USAR are not increased. temperature remains unchanged. No Therefore, the proposed Allowed Outage 2. The proposed change does not create the operating limits or setpoints are added or Time for an inoperable RHR loop and the possibility of a new or different kind of deleted by the proposed change. Reactor ability to depressurize the SI accumulator in accident from any accident previously Coolant System pressure relief paths are not lieu of SI accumulator isolation does not evaluated. affected. reduce any margin of safety as defined in the There is no new type of accident or Therefore, the possibility of a new or Technical Specifications. malfunction being created. The proposed different kind of accident is not being created The NRC staff has reviewed the changes only provide revised analysis by the proposed Allowed Outage Time for an licensee’s analysis and, based on this methodologies to support core reload design, inoperable RHR loop and the ability to review, it appears that the three starting with Cycle 9. The requested changes depressurize the SI accumulator in lieu of SI standards of 50.92(c) are satisfied. do not change the method and manner of accumulator isolation. Therefore, the NRC staff proposes to plant operation. The safety design bases in (3) Involve a significant reduction in determine that the amendment request the USAR have not been altered. Thus, the margin of safety. involves no significant hazards requested changes do not create the The proposed Technical Specifications consideration. possibility of a new or different kind of change does not involve a reduction in a accident from any previously evaluated. margin of safety. The existing safety analyses Local Public Document Room location: Swem Library, College of 3. The proposed change does not involve demonstrate that adequate shutdown cooling a significant reduction in a margin of safety. will be maintained when a train of RHR is William and Mary, Williamsburg, The proposed changes do not change the out of service for up to two hours for plant Virginia 23185. plant configuration in a way that introduces system surveillance testing, while the Attorney for licensee: Michael W. a new potential hazard to the plant and do operable train of RHR is operating. Maupin, Esq., Hunton and Williams, not involve a significant reduction in the Supporting analyses determined that the Riverfront Plaza, East Tower, 951 E. margin of safety. The analyses and RHR System meets the design cooldown Byrd Street, Richmond, Virginia 23219. evaluations discussed in the safety requirements for a reactor core rating of 2546 NRC Project Director: David B. evaluation (Attachment I) [Attached to Wolf MWth [megawatt thermal] with either one or Matthews Creek Nuclear Operating Corporation’s letter both trains of RHR in service. Additionally, number ET 95-0051, dated June 14, 1995] an evaluation of the technical basis for Wolf Creek Nuclear Operating demonstrates that all applicable design shutdown operations for the proposed Surry Corporation, Docket No. 50-482, Wolf criteria continue to be met for the changes. core uprating to 2546 MWth determined that Creek Generating Station, Coffey Therefore, it is concluded that the margin of the administrative controls and Abnormal County, Kansas safety, as described in the bases to any Procedures in place at Surry ensure adequate Date of amendment request: June 14, technical specification, is not reduced. decay heat removal capability during The NRC staff has reviewed the 1995, as supplemented by letter dated shutdown conditions. The administrative licensee’s analysis and, based on this July 13, 1995. controls and procedure revisions are review, it appears that the three supported by a detailed series of thermal- Description of amendment request: hydraulic calculations for various loss of This amendment request proposes to standards of 10 CFR 50.92(c) are RHR scenarios. There is no reduction in revise Technical Specification (TS) satisfied. Therefore, the NRC staff shutdown cooling capability due to the 3.2.3, ‘‘Nuclear Enthalpy Rise Hot proposes to determine that the proposed TS change, and no reduction in the Channel Factor,’’ TS 6.9.1.9, ‘‘Core amendment request involves no capability to mitigate a loss of decay heat Operating Limits Report,’’ and the significant hazards consideration. removal event since the RHR train affected by Local Public Document Room associated Bases sections. The revisions the testing is available and can be restored in locations: Emporia State University, are needed to incorporate changes a comparable time period to that required to William Allen White Library, 1200 associated with the planned restore RHR to service in the event of loss of Commercial Street, Emporia, Kansas implementation of advanced nuclear station power or loss of the operating train 66801 and Washburn University School of RHR. Consequently, system design, plant and core thermal-hydraulic design of Law Library, Topeka, Kansas 66621 configuration, and administrative controls methodologies licensed from Attorney for licensee: Jay Silberg, Esq., remain available to adequately mitigate a loss Westinghouse Electric Corporation for Shaw, Pittman, Potts and Trowbridge, of RHR event with a single train of RHR out core reload design, starting with Cycle 2300 N Street, NW., Washington, D.C. of service for up to two hours during plant 9. 20037 system surveillance testing. It may be Basis for proposed no significant concluded that there is no reduction in the NRC Project Director: William H. hazards consideration determination:As margin of safety due to the proposed Bateman Technical Specification change. required by 10 CFR 50.91(a), the Existing safety analyses also demonstrate licensee has provided its analysis of the Previously Published Notices Of that Reactor Coolant system integrity will be issue of no significant hazards Consideration Of Issuance Of maintained in the event of an inadvertent SI consideration, which is presented Amendments To Facility Operating accumulator discharge when SI accumulator below: Licenses, Proposed No Significant pressure is below the pressurizer PORV 1. The proposed change does not involve Hazards Consideration Determination, LTOPS setpoint. Sufficient administrative a significant increase in the probability or And Opportunity For A Hearing controls are maintained to ensure LTOPS is consequences of an accident previously ‘‘Enabled’’ and SI accumulators are isolated evaluated. The following notices were previously at the appropriate RCS conditions to The probability of occurrence and the published as separate individual minimize the possibility of challenging RCS consequences of an accident evaluated notices. The notice content was the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39457 same as above. They were published as assemblies so as to accommodate a full- Commonwealth Edison Company, individual notices either because time core-discharge through the current Docket Nos. 50-295 and 50-304, Zion did not allow the Commission to wait validity date of the Haddam Neck Nuclear Power Station Units 1 and 2, for this biweekly notice or because the operating license (2007). Lake County, Illinois action involved exigent circumstances. Date of publication of individual Date of application for amendments: They are repeated here because the notice in Federal Register: May 12, 1995 June 14, 1995 biweekly notice lists all amendments (60 FR 25746) Brief description of amendments: The issued or proposed to be issued amendments revise the requirement to involving no significant hazards Expiration date of individual notice: perform an emergency diesel generator consideration. June 12, 1995 (EDG) automatic start and sequence For details, see the individual notice Local Public Document Room loading test immediately following the in the Federal Register on the day and location: Russell Library, 123 Broad 24 hour EDG endurance test. page cited. This notice does not extend Street, Middletown, CT 06457. Date of issuance: July 18, 1995 the notice period of the original notice. Effective date: July 18, 1995 Notice Of Issuance Of Amendments To Commonwealth Edison Company, Amendment Nos.: 166 and 154 Facility Operating Licenses Facility Operating License Nos. DPR- Docket Nos. 50-254 and 50-265, Quad 39 and DPR-48: The amendments Cities Nuclear Power Station, Units 1 During the period since publication of revised the Technical and 2, Rock Island County, Illinois the last biweekly notice, the Specifications.Public comments Date of amendment request: February Commission has issued the following requested as to proposed no significant 23, 1995 amendments. The Commission has hazards consideration determination: Description of amendment request: determined for each of these Yes (60 FR 34308). This notice provided The amendment relates to amendments that the application an opportunity to submit comments on Commonwealth Edison Company’s complies with the standards and the Commission’s proposed no (ComEd) request to reflect the merger requirements of the Atomic Energy Act significant hazards consideration between IIGEC, MidAmerican, Midwest of 1954, as amended (the Act), and the determination. No comments have been Power Systems Inc., and Midwest Commission’s rules and regulations. received. The notice also provided for Resources, Inc. By letter dated The Commission has made appropriate an opportunity to request a hearing by November 21, 1994, Iowa-Illinois Gas findings as required by the Act and the July 31, 1995, but indicated that if the and Electric Company (IIGEC) requested Commission’s rules and regulations in Commission makes a final no significant approval, pursuant to Section 50.80 of 10 CFR Chapter I, which are set forth in hazards consideration determination Title 10 of the Code of Federal the license amendment. any such hearing would take place after Regulations, of the transfer of its issuance of the amendment. The ownership share of 25 percent of Quad Notice of Consideration of Issuance of Commission’s related evaluation of the Cities Nuclear Power Station, Units 1 Amendment to Facility Operating amendments, finding of exigent and 2, to MidAmerican Energy License, Proposed No Significant circumstances and final no significant Company (MidAmerican). Hazards Consideration Determination, hazards consideration determination is Date of publication of individual and Opportunity for A Hearing in contained in a Safety Evaluation dated notice in Federal Register: July 5, 1995 connection with these actions was July 18, 1995. (60 FR 35054) published in the Federal Register as Local Public Document Room Expiration date of individual notice: indicated. location: Waukegan Public Library, 128 August 4, 1995 Unless otherwise indicated, the N. County Street, Waukegan, Illinois Local Public Document Room 60085. location: Dixon Public Library, 221 Commission has determined that these Hennepin Avenue, Dixon, Illinois amendments satisfy the criteria for Indiana Michigan Power Company, 61021. categorical exclusion in accordance Docket Nos. 50-315 and 50-316, Donald with 10 CFR 51.22. Therefore, pursuant C. Cook Nuclear Plant, Unit Nos. 1 and Connecticut Yankee Atomic Power to 10 CFR 51.22(b), no environmental 2, Berrien County, Michigan Company, Docket No. 50-213, Haddam impact statement or environmental Date of application for amendments: Neck Plant, Middlesex County, assessment need be prepared for these Connecticut March 31, 1995 amendments. If the Commission has Brief description of amendments: The Date of amendment request: March prepared an environmental assessment amendments revise Technical 31, 1995 under the special circumstances Specification section 3.9.4 to allow, Description of amendment request: provision in 10 CFR 51.12(b) and has under certain conditions, both The proposed amendment will delete made a determination based on that containment personnel airlocks to be Technical Specification (TS) Sections assessment, it is so indicated. open during core alterations. 1.38 and 1.39, ‘‘Definitions, Fuel For further details with respect to the Date of issuance: July 12, 1995 Assembly Types,’’ revise TS Sections 3/ Effective date: July 12, 1995 4.9.3, ‘‘Refueling Operations, Decay action see (1) the applications for Amendment Nos.: 197 and 182 Time’’ and TS 3/4.9.14, ‘‘Refueling amendment, (2) the amendment, and (3) Facility Operating License Nos. DPR- Operations, Spent Fuel Pool - Reactivity the Commission’s related letter, Safety 58 and DPR-74. Amendments revised Condition,’’ replace TS Sections 5.6.1.1, Evaluation and/or Environmental the Technical Specifications. ‘‘Spent Fuel,’’ and TS 5.6.3, ‘‘Capacity,’’ Assessment as indicated. All of these Date of initial notice in Federal and add a new TS Section 3/4.9.15, items are available for public inspection Register: June 6, 1995 (60 FR 29879)The ‘‘Refueling Operations, Spent Fuel Pool at the Commission’s Public Document Commission’s related evaluation of the Cooling.’’ These changes would support Room, the Gelman Building, 2120 L amendments is contained in a Safety a rerack of the spent fuel pool to expand Street, NW., Washington, DC, and at the Evaluation dated July 12, 1995.No the spent fuel pool’s storage capacity local public document rooms for the significant hazards consideration from 1168 assemblies to 1480 particular facilities involved. comments received: No. 39458 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Local Public Document Room Northeast Nuclear Energy Company, et Technology and Science Department, location: Maud Preston Palenske al., Docket No. 50-423, 300 Nicollet Mall, Minneapolis, Memorial Library, 500 Market Street, St. MillstoneNuclear Power Station, Unit Minnesota 55401. Joseph, Michigan 49085. No. 3, New London County, Connecticut Omaha Public Power District, Docket Nebraska Public Power District, Docket Date of application for amendment: No. 50-285, Fort Calhoun Station,Unit No. 50-298, Cooper Nuclear March 29, 1995 No. 1, Washington County, Nebraska Station,Nemaha County, Nebraska Brief description of amendment: The amendment revises Technical Date of amendment request: Date of amendment request: May 2, Specification 3.10.5 to allow more than November 11, 1994, as supplemented by 1995 one control bank to be fully withdrawn letters dated April 7, 1995, and June 26, Brief description of amendment: The from the core simultaneously in order to 1995 Brief description of amendment: The amendment revised Surveillance conduct rod drop time response testing. Requirement 4.7.A.2.f.1 to allow a one- Date of issuance: July 11, 1995 amendment implements administrative time extension for the performance of Effective date: As of the date of changes to TS 5.2 and 5.5. These Type B local leak rate testing of the issuance to be implemented within60 changes reflect organizational changes drywell head and manport from July 17, days. in OPPD senior management, delete 1995, until startup from Refueling Amendment No.: 117 specific titles of personnel on the Plant Outage 16, scheduled to commence on Facility Operating License No. NPF- Review Committee (PRC), revise the October 13, 1995. 49. Amendment revised the Technical makeup of the PRC quorum, revise the Date of issuance: July 11, 1995 Specifications. membership of the Senior Audit and Effective date: July 11, 1995 Date of initial notice in Federal Review Committee (SARC), delete SARC Amendment No.: 170 Register: June 6, 1995 (60 FR 29880) audit frequencies and add minor Facility Operating License No. DPR- The Commission’s related evaluation of clarifications to the descriptions of 46. Amendment revised the Technical the amendment is contained in a Safety SARC reviews and audits. Specifications. Evaluation dated July 11, 1995. No Date of issuance: July 21, 1995 Date of initial notice in Federal significant hazards consideration Effective date: July 21, 1995 Amendment No.: 168 Register: June 6, 1995 (60 FR 29879)The comments received: No. Facility Operating License No. DPR- Commission’s related evaluation of the Local Public Document Room 40. Amendment revised the amendment is contained in a Safety location: Learning Resources Center, TechnicalSpecifications. Evaluation dated July 11, 1995No Three Rivers Community-Technical Date of initial notice in Federal significant hazards consideration College, 574 New London Turnpike, Register: December 21, 1994 (59 FR comments received: No. Norwich, CT 06360. 65819). The April 7, 1995, and June 26, Local Public Document Room Northern States Power Company, 1995, letters provided clarifying location: Auburn Public Library, 118 Docket No. 50-263, Monticello information and did not change the 15th Street, Auburn, NE 68305. NuclearGenerating Plant, Wright initial no significant hazards Northeast Nuclear Energy Company, et County, Minnesota consideration determination. The al., Docket No. 50-423, Date of application for amendment: Commission’s related evaluation of the MillstoneNuclear Power Station, Unit February 12, 1993, as supplemented by amendment is contained in a Safety No. 3, New London County, Connecticut letters dated March 22, 1993, and Evaluation dated July 21, 1995.No significant hazards consideration Date of application for amendment: August 25, 1994 Brief description of amendment: The comments received: No. January 10, 1995 amendment increases the minimum Local Public Document Room Brief description of amendment: The core spray pump flow to more location: W. Dale Clark Library, 215 amendment revises the Technical conservatively account for emergency South 15th Street, Omaha, Nebraska Specifications to delete the power range core cooling systems bypass leakage 68102. negative flux trip from Tables 2.2-1, 3.3- paths. The amendment also makes 1, and 4.3-1, and delete the associated Omaha Public Power District, Docket various typographical, editorial and Bases Section 2.0. No. 50-285, Fort Calhoun Station,Unit administrative corrections and changes. No. 1, Washington County, Nebraska Date of issuance: July 11, 1995 Date of issuance: July 12, 1995 Effective date: As of the date of Effective date: July 12, 1995 Date of amendment request: March 1, issuance to be implemented within30 Amendment No.: 93 1995 days. Facility Operating License No. DPR- Brief description of amendment: The Amendment No.: 116 22. Amendment revised the Technical amendment revises TS 2.5, 2.8, 2.11, Facility Operating License No. NPF- Specifications. 3.2, and 3.10 and relocates 49. Amendment revised the Technical Date of initial notice in Federal administrative controls for the Specifications. Register: August 4, 1993 (58 FR 41508). emergency and security plans from TS Date of initial notice in Federal The August 25, 1994 letter provided 5.5 and 5.8 to the plans. The relocation Register: March 1, 1995 (60 FR clarifying information within the scope is in accordance with Generic Letter 11135)The Commission’s related of the original submittal and did not (GL) 93-07, ‘‘Modification of the evaluation of the amendment is change the staff’s initial proposed no Technical Specification Administrative contained in a Safety Evaluation dated significant hazards considerations Control Requirements for Emergency July 11, 1995. No significant hazards determination.The Commission’s and Security Plans.’’ consideration comments received: No. related evaluation of the amendment is Date of issuance: July 21, 1995 Local Public Document Room contained in a Safety Evaluation dated Effective date: July 21, 1995 location: Learning Resources Center, July 12, 1995.No significant hazards Amendment No.: 169 Three Rivers Community-Technical consideration comments received: No. Facility Operating License No. DPR- College, 574 New London Turnpike, Local Public Document Room 40: The amendment revised the Norwich, CT 06360. location: Minneapolis Public Library, TechnicalSpecifications. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39459 Date of initial notice in Federal Date of issuance: July 10, 1995 Pennsylvania Power and Light Register: April 12, 1995 (60 FR 18627) Effective date: July 10, 1995 Company, Docket Nos. 50-387 and 50- The Commission’s related evaluation of Amendment No.: 210 388 Susquehanna Steam Electric the amendment is contained in a Safety Facility Operating License No. DPR- Station, Units 1 and 2, Luzerne County, Evaluation dated July 21, 1995.No 56: Amendment revised the Technical Pennsylvania significant hazards consideration Specifications. Date of application for amendments: comments received: No. Date of initial notice in Federal April 10, 1995 Local Public Document Room Brief description of amendments: location: W. Dale Clark Library, 215 Register: May 23, 1995 (60 FR 27340)The Commission’s related Remove the response time limit Tables South 15th Street, Omaha, Nebraska 3.3.1-2, 3.3.2-3, and 3.3.3-3 from the 68102. evaluation of the amendment is contained in a Safety Evaluation dated Technical Specifications, and add the Pacific Gas and Electric Company, July 10, 1995.No significant hazards information to the Final Safety Analysis Docket No. 50-133, Humboldt Bay consideration comments received: No Report in accordance with Generic Power Plant, Unit 3, Humboldt County, Local Public Document Room Letter 93-08. California location: Government Publications Date of issuance: July 11, 1995 Date of application for amendment: Section, State Library of Pennsylvania, Effective date: July 11, 1995 April 10, 1995 (REGIONAL DEPOSITORY) Education Amendment Nos.: 148 and 118 Brief description of amendment: This Building, Walnut Street and Facility Operating License Nos. NPF- amendment revised License No. DPR-7, Commonwealth Avenue, Box 1601, 14 and NPF-22. The amendments to permit the provisions of 10 CFR 50.59 Harrisburg, Pennsylvania 17105. revised the Technical Specifications. to be applied with respect to changes to Date of initial notice in Federal the facility or procedures described in PECO Energy Company, Public Service Register: June 6, 1995 (60FR 29887)The the Decommissioning Plan or changes to Electric and Gas Company,Delmarva Commission’s related evaluation of the the Decommissioning Plan, and the Power and Light Company, and amendments is contained in a Safety conduct of tests or experiments not Atlantic City Electric Company,Docket Evaluation dated July 11, 1995.No described in the Decommissioning Plan. No. 50-278, Peach Bottom Atomic significant hazards consideration Date of issuance: July 7, 1995 Power Station,Unit No. 3, York County, comments received: No Effective date: This license Pennsylvania Local Public Document Room amendment is effective as of the date of location: Osterhout Free Library, Date of application for amendment: Reference Department, 71 South its issuance and must be fully June 23, 1993, as supplemented by implemented no later than 30 days from Franklin Street, Wilkes-Barre, letters dated April 5, May 2, June 6, June Pennsylvania 18701. the date of issuance. 8, July 6 (two letters), July 7, July 20, Amendment No.: 29Facility License July 28 (two letters), September 16, Philadelphia Electric Company, Docket No. DPR-7: This amendment revised September 30, and October 14, 1994 and Nos. 50-352 and 50-353, Limerick License No. DPR-7 June 22, 1995. Generating Station, Units 1 and 2, Date of initial notice in Federal Montgomery County, Pennsylvania Register: June 6, 1995 (60 FR 29885)The Brief description of amendment: The Commission’s related evaluation of the amendment raises the authorized Date of application for amendments: amendment is contained in a Safety maximum power level from 3293 MWt November 21, 1994, as supplemented Evaluation dated July 7, 1995.No to a new limit of 3458 MWt. The April 6, and July 3, 1995 significant hazards consideration amendment also approves changes to Brief description of amendments: comments received: No the Technical Specifications to These amendments make changes Local Public Document Room implement operation at the increased affecting the Administrative Controls location: Humboldt County Library, 636 power limit. Section of the Technical Specifications. F Street, Eureka, California 95501. Date of issuance: July 18, 1995 The areas changed are Nuclear Effective date: As of date of issuance Effectiveness and Efficiency Design PECO Energy Company, Public Service and is to be implemented prior to Study (NEEDS) Organization Title Electric and Gas Company, Delmarva startup in Cycle 11, currently scheduled Changes; Minimum Shift Crew Power and Light Company, and for October 1995. Composition; delete Independent Atlantic City Electric Company, Docket Amendment No.: 211 Technical Review Section from TS; No. 50-278, Peach Bottom Atomic delete Nuclear Review Board (NRB) Power Station, Unit No. 3, York County, Facility Operating License No. DPR- Review Section from TS; and delete Pennsylvania 56: Amendment revised the License and NRB Audit Section from TS. Date of application for amendment: the Technical Specifications. Date of issuance: July 18, 1995 November 21, 1994 Date of initial notice in Federal Effective date: Units 1 and 2, as of the Brief description of amendment: This Register: August 29, 1994 (59 FR date of issuance and shall be amendment changes the technical 44432)The Commission’s related implemented within 30 days. specifications (TS) by allowing the third evaluation of the amendment is Amendment Nos.: 96 and 60 Type A Containment Integrated Leakage contained in a Safety Evaluation dated Facility Operating License Nos. NPF- Rate Test in the second 10-year service July 18, 1995.No significant hazards 39 and NPF-85. The amendments period to be conducted during refueling consideration comments received: No revised the Technical Specifications. outage 11 scheduled for September Local Public Document Room Date of initial notice in Federal 1997. This TS change is consistent with location: Government Publications Register: May 10, 1995 (60 FR a one-time exemption from Appendix J Section, State Library of Pennsylvania, 24914)The Commission’s related to 10 CFR Part 50 that extends the 10- (REGIONAL DEPOSITORY) Education evaluation of the amendments is year service period and allows the three Building, Walnut Street and contained in a Safety Evaluation dated type A tests to be performed at intervals Commonwealth Avenue, Box 1601, July 18, 1995.No significant hazards that are not approximately equal. Harrisburg, Pennsylvania 17105. consideration comments received: No 39460 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Local Public Document Room Date of initial notice in Federal Local Public Document Room location: Pottstown Public Library, 500 Register: November 9, 1994 (59 FR location: Weld Library District - High Street, Pottstown, Pennsylvania 55881)The Commission’s related Downtown Branch, 919 7th Street, 19464. evaluation of the amendments is Greeley, CO 80631. contained in a Safety Evaluation dated Philadelphia Electric Company, Docket Sacramento Municipal Utility District, July 18, 1995.No significant hazards Nos. 50-352 and 50-353, Limerick Docket No. 312, Rancho Seco Nuclear consideration comments received: No Generating Station, Units 1 and 2, Generating Station, Sacramento Local Public Document Room Montgomery County, Pennsylvania County, California location: Pottstown Public Library, 500 Date of application for amendments: High Street, Pottstown, Pennsylvania Date of application for amendment: August 31, 1994, as supplemented July 19464. February 28, 1995 3, 1995 Brief description of amendment: This Brief description of amendments: Philadelphia Electric Company, Docket amendment relocates the quality These amendments modify TS Sections Nos. 50-352 and 50-353, Limerick assurance audit frequencies from the 3.4.9.1, 3.4.9.2, 3.9.11.1, 3.9.11.2, and Generating Station, Units 1 and 2, technical specifications to the Rancho the associated Bases Sections 3/4.4.9 Montgomery County, Pennsylvania Seco Quality Manual and changes the and 3/4.4.11, to permit the use of either Date of application for amendments: reporting frequency of the Radioactive an ‘‘analytical approach’’ (i.e., August 22, 1994, as supplemented by Effluent Release Report from semi- calculation) or ‘‘demonstrations’’ to letter dated July 3, 1995 annual to annual. ensure the operability of an alternate Brief description of amendments: The Date of issuance: July 19, 1995 decay heat removal method, rather than amendments revise the Technical Effective date: July 19, 1995 the existing TS requirement which Specifications surveillance Amendment No.: 122 stipulates that operability of the requirements for scram insertion times Facility Operating License No. NPF-1: alternate decay removal method be and revise the TS surveillance The amendment revised the Technical demonstrated. requirements for control rod block and Specifications. Date of issuance: July 18, 1995 source range monitoring Date of initial notice in Federal Effective date: Units 1 and 2, as of the instrumentation. Register: March 29, 1995 (60 FR date of issuance and shall be Date of issuance: July 18, 1995 16200)The Commission’s related implemented within 30 days. Effective date: Units 1 and 2, effective evaluation of the amendment is Amendment Nos.: 97 and 61 as of the date of issuance and shall be Facility Operating License Nos. NPF- contained in a Safety Evaluation dated implemented within 30 days. 39 and NPF-85. The amendments July 19, 1995.No significant hazards Amendment Nos.: 99 and 63 revised the Technical Specifications. consideration comments received: No Date of initial notice in Federal Facility Operating License Nos. NPF- Local Public Document Room Register: November 9, 1994 (59 FR 39 and NPF-85. The amendments location: Central Library, Government 55884)The Commission’s related revised the Technical Specifications. Documents, 828 I Street, Sacramento, evaluation of the amendments is Date of initial notice in Federal California 95814. Register: November 9, 1994 (59 FR contained in a Safety Evaluation dated Southern California Edison Company, 55881)The Commission’s related July 18, 1995.No significant hazards et al., Docket Nos. 50-361 and 50-362, evaluation of the amendments is consideration comments received: No San Onofre Nuclear Generating Station, contained in a Safety Evaluation dated Local Public Document Room Unit Nos. 2 and 3, San Diego County, July 18, 1995.No significant hazards location: Pottstown Public Library, 500 California High Street, Pottstown, Pennsylvania consideration comments received: No 19464. Local Public Document Room Date of application for amendments: location: Pottstown Public Library, 500 September 15, 1993, as supplemented Philadelphia Electric Company, Docket High Street, Pottstown, Pennsylvania by letter dated September 6, 1994. Nos. 50-352 and 50-353, Limerick 19464. Brief description of amendments: The Generating Station, Units 1 and 2, amendments revised Technical Montgomery County, Pennsylvania Public Service Company of Colorado, Specification (TS) Table 2.2-1, ‘‘Reactor Docket No. 50-267, Fort St. Vrain Date of application for amendments: Protective Instrumentation Trip Nuclear Generating Station (FSV), Unit Setpoint Limits,’’ Table 3.3-1, ‘‘Reactor August 22, 1994, as supplemented July No. 1, Platteville, Colorado 3, 1995 Protective Instrumentation,’’ Table 3.3- Brief description of amendments: Date of application for amendment: 3, ‘‘Engineered Safety Feature Actuation These amendments revise Technical Amendment No. 88, April 14, 1995. System Instrumentation,’’ and Table 3.3- Specification Surveillance Requirement Brief description of amendment: This 4, ‘‘Engineered Safety Feature Actuation 4.1.3.1.4a to delete the requirement that amendment would revise the FSV System Instrumentation Trip Values,’’ the Scram Discharge Volume (SDV) be Decommissioning Technical and the associated Bases. The revisions determined operable by testing the SDV Specifications (DTS) by: revising the to the notes in these tables change the vent and drain valves from a FSV DTS to reflect recent organizational pressure at which the low pressurizer configuration of less than or equal to changes resulting from corporate pressure trip bypass shall be 50% rod density. restructuring to prepare for repowering automatically removed to a consistent Date of issuance: July 18, 1995 the site with natural gas-power turbines value of ‘‘before pressurizer pressure Effective date: Units 1 and 2, effective and to incorporate editorial changes. exceeds 500 psia (the corresponding as of date of issuance and shall be The staff has determined that the bistable allowable value is less than or implemented within 30 days. proposed amendment does not require a equal to 472 psia).’’ In addition, the Amendment Nos.: 98 and 62 significant hazard consideration, wording of the notes is revised to make Facility Operating License Nos. NPF- pursuant to 10 CFR 50.92.Possession- the notes more consistent with each 39 and NPF-85. The amendments Only License No. DPR-34: Amendment other. revised the Technical Specifications. revises the DTS. Date of issuance: July 14, 1995 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39461 Effective date: July 14, 1995, to be Southern California Edison Company, instrument identifiers and revise implemented within 30 days of the date et al., Docket Nos. 50-361 and 50-362, calibration frequencies and functional of issuance. San Onofre Nuclear Generating Station, test requirements for BFN Unit 2, revise Amendment Nos.: Unit 2 - Unit Nos. 2 and 3, San Diego County, the calibration frequency for Amendment No. 120; Unit 3 - California instrumentation actuating the Amendment No. 109 Date of application for amendments: suppression chamber-reactor building Facility Operating License Nos. NPF- April 30, 1993, as supplemented by vacuum breakers, and provide editorial 10 and NPF-15: The amendments letters dated July 6, 1994 (separate changes. revised the Technical Specifications. letters for each unit), and letter dated Date of issuance: July 17, 1995 Date of initial notice in Federal Effective date: July 17, 1995 January 27, 1995. Register: September 29, 1993 (58 FR Amendment Nos.: 222, 237, 196 Brief description of amendments: 50975). The September 6, 1994, Facility Operating License Nos. DPR- These amendments revise TS 3/4.4.8.1, supplemental letter provided additional 33, DPR-52 and DPR-68: Amendments ‘‘Pressure-Temperature Limits,’’ TS clarifying information and did not revised the Technical Specifications. change the initial no significant hazards 3.4.8.3.1, ‘‘Overpressure Protection Date of initial notice in Federal consideration determination. The Systems-RCS Temperature less than or Register: September 28, 1994(59 FR equal to °F [for Unit 2, less than or equal Commission’s related evaluation of the ° 49435) The Commission’s related amendments is contained in a Safety to 246 F for Unit 3],’’ TS 3.4.8.3.2, evaluation of the amendment is ‘‘Overpressure Protection Systems-RCS Evaluation dated July 14, 1995. No ≤ ° ≤ ° contained in a Safety Evaluation dated significant hazards consideration Temperature 256 F [for Unit 2, 246 F July 17, 1995.No significant hazards comments received: No for Unit 3],’’ and the associated TS consideration comments received: None Local Public Document Room Bases. The proposed change (1) revises Local Public Document Room location: Main Library, University of the reactor coolant system (RCS) location: Athens Public library, South California, P.O. Box 19557,Irvine, pressure-temperature (P-T) limits and Street, Athens, Alabama 356114. California 92713. the low temperature overpressure protection (LTOP) enable temperatures Toledo Edison Company, Centerior Southern California Edison Company, to be effective until 20 effective full Service Company, and The Cleveland et al., Docket Nos. 50-361 and 50-362, power years (EFPY) of operation and (2) Electric Illuminating Company, Docket San Onofre Nuclear Generating Station, makes minor editorial changes. No. 50-346, Davis-Besse Nuclear Power Unit Nos. 2 and 3, San Diego County, Date of issuance: July 18, 1995 Station, Unit No. 1, Ottawa County, California Effective date: July 18, 1995, to be Ohio Date of application for amendments: implemented within 30 days of issuance Date of application for amendment: September 3, 1992 Amendment Nos.: Unit 2 - January 30, 1995 Brief description of amendments: Amendment No. 122; Unit 3 - Brief description of amendment: The These amendments revise TS 3/4.4.8 Amendment No. 111 proposed amendment revises reactor ‘‘Pressure/Temperature Limits - Reactor Facility Operating License Nos. NPF- coolant system pressure-temperature Coolant System,’’ and their associated 10 and NPF-15: The amendments curves, changes bases for Technical Bases, following NRC guidance revised the Technical Specifications. Specification 3/4.4.9, Pressure provided in Generic Letter 91-01, Date of initial notice in Federal Temperature Limits, and revises License ‘‘Removal of the Schedule for Register: Unit 2 - July 7, 1993 (58 FR Condition 2.C(3)(d) to reflect a change Withdrawal of Reactor Vessel Material 36445); Unit 3 - June 23, 1993 (58 FR from 10 effective full power years Specimens from Technical 34094). The two supplemental letters (EFPY) to 21 EFPY. Specifications.’’ This generic letter dated July 6, 1994, and the January 27, Date of issuance: July 20, 1995 allows licensees to remove the reactor 1995, supplemental letter provided Effective date: July 20, 1995 vessel material surveillance capsule clarifying information and did not Amendment No.: 199 withdrawal schedules from the TS change the initial no significant hazards Facility Operating License No. NPF-3. because they are a duplication of the consideration determination.The Amendment revised the Technical requirements of 10 CFR Part 50 Commission’s related evaluation of the Specifications. Appendix H. amendments is contained in a Safety Date of initial notice in Federal Date of issuance: July 17, 1995 Evaluation dated July 18, 1995.No Register: March 15, 1995 (60 FR Effective date: July 17, 1995, to be significant hazards consideration 14029)The Commission’s related implemented within 30 days of issuance comments received: No evaluation of the amendment is Amendment Nos.: Unit 2 - Local Public Document Room contained in a Safety Evaluation dated Amendment No. 121; Unit 3 - location: Main Library, University of July 20, 1995.No significant hazards Amendment No. 110 California, P. O. Box 19557, Irvine, consideration comments received: No Facility Operating License Nos. NPF- California 92713. Local Public Document Room 10 and NPF-15: The amendments location: University of Toledo Library, Tennessee Valley Authority, Docket revised the Technical Specifications. Documents Department, 2801 Bancroft Nos. 50-259, 50-260, and 50-296, Date of initial notice in Federal Avenue, Toledo, Ohio 43606. Register: February 17, 1993 (58 FR Browns Ferry Nuclear Plant, Units 1, 2, 8781)The Commission’s related and 3, Limestone County, Alabama Union Electric Company, Docket No. evaluation of the amendments is Date of application for amendments: 50-483, Callaway Plant, Unit 1, contained in a Safety Evaluation dated March 30, 1994 Callaway County, Missouri July 17, 1995.No significant hazards Brief description of amendment: The Date of application for amendment: consideration comments received: No amendments implement an analog September 8, 1994 Local Public Document Room transmitter/trip system on BFN Unit 3, Brief description of amendment: The location: Main Library, University of revise the reactor vessel water level amendment revises Technical California, P. O. Box 19557, Irvine, safety limit and limiting safety system Specifications (TS) 4.2.2.2, 4.2.2.4, and California 92713. setting for BFN Units 1 and 3, add 6.9.19. The changes address 39462 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices incorporating a penalty in the Core [Docket No. 50±255] Public Document Room, the Gelman Operating Limits Report (COLR) to Building, 2120 L Street, NW., Consumers Power Company; Notice of account for heat flux (FQ) increases Washington, DC, 20555 and at the Van Partial Denial of Amendment to Facility greater than 2 percent between Wylen Library, Hope College, Holland, Operating License and Opportunity for measurements. Michigan 49423. Hearing Date of issuance: July 20, 1995 Dated at Rockville, Maryland, this 26th day The U.S. Nuclear Regulatory of July 1995. Effective date: July 20, 1995 Commission (the Commission) has For the Nuclear Regulatory Commission. Amendment No.: 101 partially denied a request by Consumers Marsha Gamberoni, Facility Operating License No. NPF- Power Company, (licensee) for an Project Manager, Project Directorate III–I, 30. Amendment revises the Technical amendment to Facility Operating Division of Reactor Projects—III/IV, Office of Specification Surveillance License No DRP–20 issued to the Nuclear Reactor Regulation. Requirements and Administrative licensee for operation of Palisades, [FR Doc. 95–18929 Filed 8–1–95; 8:45 am] Controls. located in Covert Township, Van Buren BILLING CODE 7590±01±M County, Michigan. Notice of Date of initial notice in Federal Consideration of Issuance of this Register: December 21, 1994 (59 FR amendment was published in the [Docket Nos. 50±206, 50±361, 50±362] 65823). The Commission’s related Federal Register on May 25, 1994 (59 In the Matter of Southern California Edison evaluation of the amendment is FR 27053). Company (San Onofre Nuclear Generating contained in a Safety Evaluation dated The purpose of the licensee’s Station, Units 1, 2, and 3). July 20, 1995. No significant hazards amendment request was to relocate consideration comments received: No certain Technical Specifications (TS) Southern California Edison Co. Local Public Document Room containing fuel cycle-specific parameter Exemption location: Callaway County Public limits that can change with core reloads I Library, 710 Court Street, Fulton, to a Core Operating Limits Report. Missouri 65251. Several of the TS bases have also been Southern California Edison Company revised to refer to limits relocated to the (SCE or the licensee) is the holder of Virginia Electric and Power Company, COLR. Facility Operating License No. DPR–13, Docket Nos. 50-280 and 50-281, Surry The NRC staff has concluded that the which authorizes possession and Power Station, Unit Nos. 1 and 2, Surry licensee’s request cannot be fully maintenance of the San Onofre Nuclear County, Virginia granted. The removal of the power Generating Station, Unit 1 (SONGS 1) distribution measurement uncertainty and Facility Operating License Nos. Date of application for amendments: factors in Table 3.23.3 and the addition NPF–10 and NPF–15, which authorizes November 22, 1994 of certain references to TS 6.9.1.f are operation of San Onofre Nuclear Brief description of amendments: The denied. The licensee was notified of the Generating Station, Units 2 and 3 amendments revised the Technical Commission’s denial of the proposed (SONGS 2 and 3), respectively. The Specifications to delete unnecessary change by a letter dated July 26, 1995. licenses provide, among other things, descriptive phrases regarding the By September 1, 1995, the licensee that the SONGS units are subject to all number of cells in the station and may demand a hearing with respect to rules, regulations, and orders of the emergency diesel generator batteries. the denial described above. Any person Commission now or hereafter in effect. whose interest may be affected by this The facilities consist of three Date of issuance: July 11, 1995 proceeding may file a written petition pressurized water reactors at the SCE Effective date: July 11, 1995 for leave to intervene. site located in San Diego County, Amendment Nos.: 201 and 201 A request for hearing or petition for California. SONGS 1 is permanently leave to intervene must be filed with the shut down, while Unites 2 and 3 remain Facility Operating License Nos. DPR- Secretary of the Commission, U.S. operational. 32 and DPR-37: Amendments revised Nuclear Regulatory Commission, the Technical Specifications. Washington, DC 20555, Attention: II Date of initial notice in Federal Docketing and Services Branch, or may It is stated in 10 CFR 73.55, Register: April 12, 1995 (60 FR be delivered to the Commission’s Public ‘‘Requirements for physical protection 18630)The Commission’s related Document Room, the Gelman Building, of licensed activities in nuclear power evaluation of the amendment is 2120 L Street, NW., Washington, DC by reactors against radological sabotage,’’ contained in a Safety Evaluation dated the above date. paragraph (a), that ‘‘The licenses shall July 11, 1995. No significant hazards A copy of any petition should also be establish and maintain an onsite consideration comments received: No sent to the Office of the General physical protection system and security Counsel, U.S. Nuclear Regulatory organization which will have as its Local Public Document Room Commission, Washington, DC 20555, objective to provide high assurance that location: Swem Library, College of and to Gerald Charnoff, Esq., Shaw, activities involving special nuclear William and Mary, Williamsburg, Pittman, Potts and Trowbridge, 2300 N material are not inimical to the common Virginia 23185. Street, NW., Washington, DC 20037. defense and security and do not Dated at Rockville, Maryland, this 2nd day For further details with respect to this constitute an unreasonable risk to the of August, 1995. action, see (1) the application for public health and safety.’’ For the Nuclear Regulatory Commission amendment dated April 7, 1994, as It is specified in 10 CFR 73.55(d), Jack W. Roe, 4Director, Division of Reactor supplemented April 27, 1995, and (2) ‘‘Access Requirements,’’ paragraph (1) Projects - III/IV, Office of Nuclear Reactor the Commission’s letter to the licensee that ‘‘The licensee shall control all Regulation dated July 26, 1995. points of personnel and vehicle access [Doc. 95–18810 Filed 8–1–95; 8:45 am] These documents are available for into a protected area.’’ It is specified in BILLING CODE 7590±01±F public inspection at the Commission’s 10 CFR 73.55(d)(5) that ‘‘A numbered Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39463 picture badge identification system shall personnel who are authorized and that of the current photo-identification be used for all individuals who are request access into the protected area is system. The site security plans will be authorized access to protected areas established by security personnel revised in accordance with 10 CFR without escort.’’ It further states that making a visual comparison of the 50.54(p) to allow implementation of the individuals not employed by the individual requesting access and that hand geometry system. licensee (e.g., contractors) may be individual’s picture badge. In IV authorized access to protected areas accordance with 10 CFR 73.55(d)(5), without an escort provided that the contractor personnel are not allowed to For the foregoing reasons, the individual, ‘‘receives a picture badge take their picture badges offsite. In Commission has determined that the upon entrance into the protected area addition, in accordance with the plant’s proposed alternative measure for which must be returned upon exit from physical security plan, the licensee’s protection against radiological sabotage the protected area * * *.’’ employees are also not allowed to take meet the same high assurance objective By letter dated March 13, 1995, the their picture badges offsite. and the general performance licensee requested an exemption from The proposed alternative measure, to requirements of 10 CFR 73.55. In certain requirements of 10 CFR provide an equivalent level of addition, the staff has determined that 73.55(d)(5). Specifically, the requested protection against radiological sabotage, the overall level of the proposed exemption would allow contractors who is a system that will require that all system’s performance will provide have unescorted access to retain individuals with authorized unescorted protection against radiological sabotage possession of their picture badges access have the physical characteristics equivalent to that which is provided by instead of returning them as they exit of their hand (hand geometry) registered the current system in accordance with the protected area. (The existing with their picture badge number in a 10 CFR 73.55. regulations allow licensee employees computerized access control system. Accordingly, the Commission has authorized unescorted access to Therefore, all authorized individuals determined that, pursuant to 10 CFR protected areas to retain their badges must not only have their picture badge 73.5 this exemption is authorized by upon departure from the protected area.) to gain access to the protected area, but law, will not endanger life or property The proposed exemption is a must also have their hand geometry or the common defense and security, preliminary step towards enabling SCE confirmed. initially, following revision and is otherwise in the public interest. to revise the SONGS security plan under to the site security plan, individuals Therefore, the Commission hereby 10 CFR 50.54(p) to facilitate with unescorted access will be allowed grants Southern California Edison implementation of an alternative to retrieve their own badges before Company an exemption from those unescorted access system which would entering the protected area and return requirements of 10 CFR 73.55(d)(5) eliminate the need for site security their badges to storage locations when relating to the returning of picture personnel to issue and retrieve picture existing the protected area for retrieval badges upon exit from the protected badges at the entrance/exit locations to on their next entrance. Eventually, area such that individuals not employed the protected area and would eventually following changes to the security plan by the licensee, i.e., contractors, who are allow all individuals (contractors and conducted under 10 CFR 50.54(p), all authorized unescort4ed access into the SCE employees) with unescorted access individuals, including contractors, who protected area, can retrieve their own to the protected area to keep their have authorized unescorted access into badges before entering the protected picture badges in their possession when the protected area may be allowed to area and return their badges to the badge departing the SONGS protected area. keep their picture badges in their storage location when existing the possession when departing the SONGS III protected area. protected area. Pursuant to 10 CFR 51.32, the Pursuant to 10 CFR 73.5, ‘‘Specific All other access processes, including Commission has determined that the exemptions,’’ the Commission may, search function capability, will remain issuance of this exemption will have no upon application of any interested the same. A security officer responsible significant impact on the environment person or upon its own initiative, grant for access control will continue to be (60 FR 37110 as July 19, 1995). such exemptions in this part as it positioned within a hardened structure. This exemption is effective upon determines are authorized by law and It should be noted that the proposed issuance. will not endanger life or property or the system is only for individuals with common defense and security, and are Dated at Rockville, Maryland, this 21st day authorized unescorted access and will of July 1995. otherwise in the public interest. The not be used for those individuals For the Nuclear Regulatory Commission. Code of Federal Regulations at 10 CFR requiring escorts. 73.55 allows the Commission to Sandia National Laboratories Brian K. Grimes, authorize a licensee to provide conducted testing which demonstrated Director, Divisions of Project Support, Office alternative measures for protection that the hand geometry equipment that of Nuclear Reactor Regulations. against radiological sabotage provided SCE proposed to use possesses strong [FR Doc. 95–18926 Filed 8–1–95; 8:45 am] the licensee demonstrates that the performance characteristic. Details of BILLING CODE 7590±01±M proposed measures meet the general the testing performed, available in thee performance requirements of the Sandia report, ‘‘A performance regulation, and that the overall level of Evaluation of Biometric Identification Status and Notice of Availability of system performance provides protection Devices,’’ SAND91—0276 UC—906 Two Policy Statements Concerning the against radiological sabotage equivalent Unlimited Release, June 1991, Agreement State Program to that which would be provided by the demonstrated that the hand geometry AGENCY: Nuclear Regulatory regulation. equipment is capable of meeting a Commission. Currently, unescorted access into the detection probability of 90 percent with ACTION: Status of policy statements and protected area for both employee and a 95 percent confidence level. Based on notice of availability. contractor personnel into the SONGS the Sandia report, the false acceptance plants is controlled through the use of rate for the proposed hand geometry SUMMARY: The Nuclear Regulatory picture badges. Positive identification of system would be at least equivalent to Commission (NRC) is announcing the 39464 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices status of Commission action on the two Federal Register Notice in the near operator candidates and to determine policy statements: Statement of future, which will address how IMPEP whether to initiate a simulation facility Principles and Policy for the Agreement will be integrated into the current inspection at a specific site due to State Program and the Policy Statement framework for Agreement State program concerns about their suitability for use on Adequacy and Compatibility of reviews. in operating tests. Agreement State Programs. NRC is also Dated at Rockville, Maryland, this 27th day Copies of the submittal may be announcing the availability of the policy of July, 1995. inspected or obtained for a fee from the statements to interested parties. For the Nuclear Regulatory Commission. NRC Public Document Room, 2120 L ADDRESSES: Copies of the policy John C. Hoyle, Street NW (Lower Level), Washington, statements may be obtained by calling Secretary of the Commission. DC 20555–0001. Vicki Bolling at (301)–415–2326 or by [FR Doc. 95–18925 Filed 8–1–95; 8:45 am] Comments and questions should be writing to U.S. Nuclear Regulatory BILLING CODE 7590±01±P directed to the OMB reviewer: Troy Commission, Document Control Desk, Hillier, Office of Information and P1–37, Washington, DC 20555, Attn: Regulatory Affairs (3150–0138), NEOB– Vicki Bolling, OSP. These documents Documents Containing Reporting or 10202, Office of Management and are available for inspection in the Public Recordkeeping Requirements: Office Budget, Washington, DC 20503. Document Room, 2120 L Street, NW., of Management and Budget (OMB) Comments can also be submitted by (Lower Level), Washington, DC between Review telephone at (202) 395–3084. 7:45 a.m. and 4:15 p.m. FOR FURTHER INFORMATION CONTACT: Ms. AGENCY: U.S. Nuclear Regulatory The NRC Clearance Officer is Brenda Kathleen Schneider, Office of State Commission (NRC). Jo. Shelton, (301) 415–7233. Programs, U.S. Nuclear Regulatory ACTION: Notice of the OMB review of Dated at Rockville, Maryland, this 27th day Commission, Washington, DC 20555, information collection. of July, 1995. telephone (301)–415–2320. For the Nuclear Regulatory Commission. SUMMARY: The NRC has recently SUPPLEMENTARY INFORMATION: The Gerald F. Cranford, submitted to the OMB for review the Commission has approved, in principle, following proposal for the collection of Designated Senior Official for Information the Policy Statements entitled Resources Management. information under the provisions of the ‘‘Statement of Principles and Policy for Paperwork Reduction Act of 1980 (44 [FR Doc. 95–18930 Filed 8–1–95; 8:45 am] the Agreement State Program’’ and U.S.C. Chapter 35). BILLING CODE 7590±01±M ‘‘Policy Statement on Adequacy and 1. Type of submission, new, revision, Compatibility of Agreement State or extension: Revision. Programs’’ with the stipulations 2. The title of the information [Docket Nos. 50±254 and 50±265] discussed below. collection: Simulation Facility The Commission is going to defer Certification. Commonwealth Edison Company, implementation of the policy statements 3. The form number if applicable: Iowa-Illinois Gas and Electric until implementing procedures are NRC Form 474. Company, Quad Cities Nuclear Power developed and approved by the 4. How often the collection is Station, Units 1 and 2; Environmental Commission. The NRC staff is to required: One time requirement for Assessment and Finding of No develop the implementing procedures initial certification and quadrennial Significant Impact and any necessary changes to the two thereafter. policy statements and resubmit the 5. Who will be required or asked to The U.S. Nuclear Regulatory policy statements and implementing report: All power reactor licensees and Commission (the Commission) is procedures to the Commission by applicants for an operating license. considering issuance of an exemption September 30, 1996. Copies of the two 6. An estimate of the number of from certain requirements of its policy statements may be obtained from responses: 20 annually. regulations to Facility Operating License the address listed in this notice. Until 7. An estimate of the total number of Nos. DPR–29 and DPR–30, issued to the policy statements and final hours needed annually to complete the Commonwealth Edison Company implementing procedures are approved requirement or request: 2,400 (ComEd, the licensee), for operation of by the Commission, the NRC staff will (approximately 120 hours per response). Quad Cities Nuclear Power Station, continue to use the policy statement on 8. An indication of whether Section Units 1 and 2, located in Rock Island Discontinuance of the NRC Authority 3504(h), Pub. L. 96–511 applies: Not County, Illinois. and Assumption Thereof by States applicable. Through Agreement: Criteria for 9. Abstract: Licensed power facilities Environmental Assessment Guidance of States and NRC, published that propose the use of a simulation Identification of the Proposed Action January 23, 1981 (46 FR 7540), as facility consisting solely of a plant- revised July 21, 1983 (48 FR 33376), for referenced simulator for the conduct of The proposed action is in accordance new agreements. NRC licensing operating tests are with the licensee’s application for an The Office of State Programs B.7 required to submit NRC Form 474. exemption from certain requirements of Procedure for compatibility will be The information on the form consists 10 CFR 73.55, ‘‘Requirements for utilized in connection with the interim of the results of performance testing Physical Protection of Licensed implementation of the Integrated completed on the subject simulation Activities in Nuclear Power Reactors Materials Performance Evaluation facility and a schedule for the conduct Against Radiological Sabotage.’’ The Program (IMPEP) to evaluate Agreement of performance tests for the subsequent requested exemption would allow the State programs until the final four-year period. NRC uses this implementation of a hand geometry implementing procedures for the two information to ascertain the biometric system of site access control policy statements and any revisions to acceptability of simulation facilities for in conjunction with photograph the policy statements are approved by use in the conduct of operating tests for identification badges, and would allow the Commission. NRC plans to issue a nuclear power plant operator and senior the badges to be taken off site. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39465 The Need for the Proposed Action characteristics of their hand (hand proposed action will result in a process Pursuant to 10 CFR 73.55(a), the geometry) registered with their picture that is equivalent to the existing licensee is required to establish and badge number in a computerized access identification verification process. control system. Therefore, all authorized maintain an onsite physical protection Alternative Use of Resources individuals must not only have their system and security organization. This action does not involve the use In 10 CFR 73.55(d), ‘‘Access picture badges to gain access into the protected area, but must also have their of any resources not previously Requirements,’’ it specifies in part that considered in the Final Environmental ‘‘The licensee shall control all points of hand geometry confirmed. All other access processes, including Statement for the Quad Cities Station, personnel and vehicle access into a search function capability and access Units 1 and 2. protected area.’’ In 10 CFR 73.55(d)(5), revocation, will remain the same. A it specifies in part that ‘‘A numbered Agencies and Persons Consulted security officer responsible for access picture badge identification system shall control will continue to be positioned In accordance with its stated policy, be used for all individuals who are within a bullet-resistant structure. The on July 20, 1995, the staff consulted authorized access to protected areas proposed system is only for individuals with the Illinois State Official, Mr. Mike without escort.’’ It further indicates that with authorized unescorted access and Parker, Chief, Reactor Safety Section; an individual not employed by the will not be used for individuals Division of Engineering; Illinois licensee (e.g., contractors) may be requiring escorts. Department of Nuclear Safety; regarding authorized access to protected areas The underlying purpose for requiring the environmental impact of the without an escort provided the that individuals not employed by the proposed action. The State official had individual, ‘‘receives a picture badge licensee must receive and return their no comments. upon entrance into the protected area picture badges at the entrance/exit is to Finding of No Significant Impact which must be returned upon exit from provide reasonable assurance that the the protected area.’’ access badges could not be Based upon the foregoing Currently, unescorted access for both compromised or stolen with a resulting environmental assessment, the employee and contractor personnel into risk that an unauthorized individual Commission concludes that the the Quad Cities Station, Units 1 and 2, could potentially enter the protected proposed action will not have a is controlled through the use of picture area. Although the proposed exemption significant effect on the quality of the badges. Positive identification of will allow individuals to take their human environment. Accordingly, the personnel who are authorized and picture badges off site, the proposed Commission has determined not to request access into the protected area is measures require not only that the prepare an environmental impact established by security personnel picture badge be provided for access to statement for the proposed exemption. For further details with respect to this making a visual comparison of the the protected area, but also that action, see the licensee’s letter dated individual requesting access and that verification of the hand geometry June 21, 1995, which is available for individual’s picture badge. The picture registered with the badge be performed public inspection at the Commission’s badges are issued, stored, and retrieved as discussed above. Thus, the proposed Public Document Room, 2120 L Street, at the entrance/exit location to the system provides an identity verification NW., Washington, DC, and at the local protected area. In accordance with 10 process that is equivalent to the existing public document room located at the CFR 73.55(d)(5), contractor personnel process. are not allowed to take their picture Accordingly, the Commission Dixon Public Library, 221 Hennepin badges off site. In addition, in concludes that the exemption to allow Avenue, Dixon, Illinois 61021. accordance with the plant’s physical individuals not employed by the Dated at Rockville, Maryland, this 25th day security plan, the licensee’s employees licensee to take their picture badges off of July 1995. are also not allowed to take their picture site will not result in an increase in the For the Nuclear Regulatory Commission. badges off site. The licensee proposes to risk that an unauthorized individual Robert M. Pulsifer, implement an alternative unescorted could potentially enter the protected Project Manager, Project Directorate III–2, access control system which would area. Consequently, the Commission Division of Reactor Projects—III/IV, Office of eliminate the need to issue and retrieve concludes that there are no significant Nuclear Reactor Regulation. picture badges at the entrance/exit radiological impacts associated with the [FR Doc. 95–18931 Filed 8–1–95; 8:45 am] location to the protected area. The proposed action. BILLING CODE 7590±01±M proposal would also allow contractor The proposed exemption does not who have unescorted access to keep affect nonradiological plant effluents their picture badges in their possession and has no other environmental impact. SECURITIES AND EXCHANGE when departing the Quad Cities site. In Accordingly, the Commission concludes COMMISSION addition, the site security plans will be that there are no significant revised to allow implementation of the [Release No. 34±36027; File No. SR±CHX± nonradiological environmental impacts 95±15] hand geometry system and to allow associated with the proposed action. employees and contractors with Alternatives to the Proposed Action Self-Regulatory Organizations; Notice unescorted access to keep their picture of Filing and Order Granting badges in their possession when leaving Since the Commission has concluded Accelerated Approval of Proposed the Quad Cities site. there is no measurable environmental Rule Change by the Chicago Stock impact associated with the proposed Exchange, Incorporated Relating to the Environmental Impacts of the Proposed action, any alternatives with equal or Action Implementation of Modified Versions greater environmental impact need not of the SuperMAX System on a Pilot The Commission has completed its be evaluated. The principal alternative Basis evaluation of the proposed action. In to the proposed action would be to deny addition to their picture badges, all the requested action. Denial of the July 27, 1995. individuals with authorized unescorted requested action would not significantly Pursuant to Section 19(b)(1) of the access will have the physical enhance the environment in that the Securities Exchange Act of 1934 39466 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices (‘‘Act’’), 15 U.S.C. § 78s(b)(1), notice is contrary, agency market orders in markets SuperMAX criteria must be adjusted to the hereby given that on June 29, 1995, the quoted with a minimum variation (usually 1⁄8 better price. Chicago Stock Exchange, Incorporated spread) will not be stopped. Orders not (f) The Exchange’s Timed Enhanced (‘‘CHX’’ or ‘‘Exchange’’) filed with the stopped will be immediately executed based SuperMAX program shall be an automatic upon the NBBO as the case may be. execution program within MAX in which a Securities and Exchange Commission (2) Pricing. Buy Orders stopped under (1) Specialist may voluntarily choose to (‘‘Commission’’) the proposed rule above will be executed as follows: participate on the stock-by-stock basis. A change as described in Items I, II, and (i) If the next primary market sale is equal Specialist shall decide if his or her stock will III below, which Items have been to or less than the last sale then the stopped be eligible for Timed Enhanced SuperMAX prepared by the self-regulatory order will be executed at such last sale price treatment. In the event that a Specialist organization. On July 21, 1995, the (subject, however, to the Exchange’s block determines that his or her stock is eligible for Exchange submitted Amendment No. 1 protection policy as set forth in interpretation Timed Enhanced SuperMAX and voluntarily chooses to participate in Timed Enhanced to the proposed rule change.1 The and policy .06 of Rule 7 of this Article). (ii) If the next primary market sale is SuperMAX, agency market orders up to and Commission is publishing this notice to greater than the last sale then the stopped including 1099 shares (or such greater size as solicit comments on the proposed rule order will be executed at such next primary specified by the Specialist and approved by change from interested persons. market sale price. However, if the next the Exchange) will automatically be executed in MAX, through the Timed Enhanced I. Self-Regulatory Organization’s primary market sale is greater than the stop price then the stopped order will be filled at SuperMAX program, without any Specialist Statement of the Terms of Substance of the stopped price (i.e. at the offer). intervention, in accordance with the the Proposed Rule Change Sell orders stopped under (1) above will be Enhanced SuperMAX program and rules (as The Exchange proposes to add executed as follows: specified in paragraph (e) of this Rule and (iii) If the next primary market sale is equal subparagraphs (1) through (7) thereunder) subsection (e) and subsection (f) to Rule with the following modification: 37 of Article XX relating to the CHX’s to or greater than the last sale then the stopped order will be executed at such last (1) Timer. In the event that an order is MAX System. The text of the proposed sale price (subject, however, to the stopped pursuant to the criteria described in rule is as follows [new text is italicized]: Exchange’s block protection policy as set paragraph (e)(1) of this Rule, such order shall be executed at the stopped price if there are Article XX forth in interpretation and policy .06 of Rule 7 of this Article). no executions in the primary market at the Rule 37 (iv) If the next primary market sale is less end of the applicable Time Out Period (as defined below). For purposes of this (e) The Exchange’s Enhanced SuperMAX than the last sale then the stopped order will be executed at such primary market sale paragraph (f), the Time Out Period shall be program shall be an automatic execution the time specified by the specialist on stock- price. However, if the next primary market program within MAX in which a Specialist by-stock basis based on the size of the order. sale is less than the stop price then the may voluntarily choose to participate on a Such Time Out Period shall be preselected by stock-by-stock basis. A Specialist shall stopped order will be filled at the stopped a specialist, may be changed by a specialist decide if his or her stock will be eligible for price (i.e. at the bid). no more frequently than once a month and Enhanced SuperMAX treatment. In the event (3) Operating Time. Enhanced SuperMAX may be no less than 30 seconds. that a stock is eligible for Enhanced will operate each day that the Exchange is SuperMAX treatment (pursuant to paragraph open for trading from 8:45 a.m. (C.T.) until II. Self-Regulatory Organization’s (e) of this Rule) and SuperMAX treatment the close. In unusual trading situations, Statement of the Purpose of, and (pursuant to paragraph (c) of this Rule) at the individual stocks or all stocks may be Statutory Basis for, the Proposed Rule same time, the size of the order will removed from Enhanced SuperMAX with the Change determine which program will be followed for approval of two members of the Committee execution. An order of 599 shares or less will on Floor Procedure. In its filing with the Commission, the execute according to the SuperMAX program (4) Timing. Orders entered into Enhanced self-regulatory organization included and an order greater than 599 shares will SuperMAX shall, when due a fill under the statements concerning the purpose of execute according to the Enhanced Enhanced SuperMAX program, be and basis for the proposed rule change SuperMAX program. In the event that a immediately executed without any delay (i.e. Specialist determines that his stock is eligible and discussed any comments it received 0 seconds). on the proposed rule change. The text for Enhanced SuperMAX and voluntarily (5) Applicability to Odd-Lots. Although an chooses to participate in Enhanced order generated by the Odd-Lot Execution of these statements may be examined at SuperMAX, agency market orders up to and Service (‘‘OLES’’) is a professional order the places specified in Item III below. including 1099 shares (or such greater size (because it is deemed to be for the account The self-regulatory organization has specified by a specialist and approved by the of a broker-dealer), it is nonetheless eligible prepared summaries, set forth in Exchange) in that stock may automatically be for Enhanced SuperMAX execution if: (i) the Sections A, B, and C below, of the most stopped and executed in MAX, through the issue is on Enhanced SuperMAX, (ii) it is an significant aspects of such statements. Enhanced SuperMAX program, without any order for 200 shares or less, and (iii) it is an specialist intervention based on the following OLES passively driven, system-generated A. Self-Regulatory Organization’s criteria: market order (and not an actively managed Statement of the Purpose of, and (1) Stopping. If an agency market order order). Statutory Basis for, the Proposed Rule eligible for Enhanced SuperMAX would (6) Out of Range. Notwithstanding Change create either a double up tick (buy order) or anything in this paragraph (e) to the double down tick (sell order) if the order was contrary, Enhanced SuperMAX will not 1. Purpose executed at the consolidated best bid or offer execute an order at the NBBO if such (‘‘NBBO’’) the Enhanced SuperMAX program On May 22, 1995, the Commission execution would result in an out of range will ‘‘stop’’ the order. Once stopped, the approved a proposed rule change of execution. order will not receive an execution that is CHX that allows specialists on the (7) Other. Any eligible order in a stock worse than the stop price. Notwithstanding included in Enhanced SuperMAX which is Exchange, through the Exchange’s MAX anything in the previous sentence to the manually presented at the Specialist post by system, to provide order execution a floor broker must also be guaranteed an guarantees that are more favorable than 1 See letter from David Rusoff, Foley & Lardner, execution by the Specialist pursuant to the those required under CHX Rule 37(a), to Glen Barrentine, Senior Counsel, SEC, dated July criteria set forth in this paragraph (e). In the 2 21, 1995. In Amendment No. 1, the Exchange Article XX. That approval order requests that the proposed rule change be event that a contra side order which would considered under 19(b)(2) on one-year pilot basis better an Enhanced SuperMAX execution is 2 See Securities Exchange Act Release No. 325753 rather than under 19(b)(3)(A) and makes certain presented at the post, the incoming order (May 22, 1995), 60 FR 28007 (May 26, 1995) (File clarifying changes to the text of Item I. which is executed pursuant to the Enhanced No. SR–CHX–95–08). Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39467 contemplated that the CHX would file B. Self-Regulatory Organization’s Timed Enhanced SuperMAX). These with the Commission specific Statement on Burden on Competition modified versions will operate as modifications to the parameters of MAX The proposed rule change will impose separate systems and will be available to that are required to implement various no burden on competition. CHX specialists as additions or options available under this new rule. alternatives to SuperMAX.7 C. Self-Regulatory Organization’s Participation in Enhanced SuperMAX The purpose of the proposed rule Statement on Comments on the change is to set forth two options and Timed Enhanced SuperMAX will Proposed Rule Change Received from be voluntary for specialists and will available under this new rule. One Members, Participants or Others option is merely a reactivation of the apply on a stock-by-stock basis for agency market orders of 1,099 shares or Exchange’s Enhanced SuperMAX No written comments were solicited fewer in Dual Trading Systems issued.8 program, a program originally approved or received with respect to the proposed by the Commission on a pilot basis in rule change. Under the proposed rule change, 1991.3 Unlike the old pilot program, III. Solicitation of Comments Enhanced SuperMAX and Timed however, the new Enhanced SuperMAX Enhanced SuperMAX would Interested persons are invited to program will be available starting at automatically stop a market order if its submit written data, views, and execution at the consolidated best bid or 8:45 a.m. instead of 9:00 a.m. This arguments concerning the foregoing. program differs from the Exchange’s offer (‘‘BBO’’) would create either a Persons making written submissions double up tick or double down tick. If SuperMAX program is that under this should file six copies thereof with the program, certain orders are ‘‘stopped’’ at the execution at the BBO would not Secretary, Securities and Exchange result in a double up tick or double the NBBO 4 and are executed with Commission, 450 Fifth Street, N.W., reference to the next primary market down tick, then Enhanced SuperMAX Washington, D.C. 20549. Copies of the and Timed Enhanced SuperMAX would sale instead of the previous primary submission, all subsequent execute the order at the BBO. Once a market sale. amendments, all written statements security chosen by a specialist for The other option is a slight variation with respect to the proposed rule Enhanced SuperMAX and Timed on the Enhanced SuperMAX program. change that are filed with the Enhanced SuperMAX is stopped, a buy This other option, the Timed Enhanced Commission, and all written (sell) order is guaranteed at least the SuperMAX program, will execute orders communications relating to the offer (bid) price prevailing at the time of in the same manner as the Enhanced proposed rule change between the the stop (‘‘stop price’’). Commission and any person, other than SuperMAX program except that if there The stopped Enhanced SuperMAX are no executions in the primary market those that may be withheld from the public in accordance with the and Timed Enhanced SuperMAX after the order has been stopped for a eligible order would be executed based designated time period, the order will provisions of 5 U.S.C. § 552, will be available for inspection and copying at upon the next sale in the primary be executed at the stopped price at the market according to the execution end of such period. Such period, known the Commission’s Public Reference Section, 450 Fifth Street, N.W., criteria. The Enhanced SuperMAX and as a time out period, will be pre-selected Washington, D.C. 20549. Copies of such Timed Enhanced SuperMAX algorithm by a specialist on a stock-by-stock basis filing will also be available for compares the previous last sale price to based on the size of the order, may be inspection and copying at the principal the next sale price, and considers the changed by a specialist no more office of the Exchange. All submissions direction of the market by those sales frequently than once a month, and may should refer to File No. SR–CHX–95–15 prices, to determine the price at which be no less than 30 seconds. and should be submitted by August 23, the stopped market order will be filled. The procedures under Enhanced 2. Statutory Basis 1995. SuperMAX and Timed Enhanced The proposed rule change is IV. Commission’s Findings and Order SuperMAX are identical except the consistent with Section 6(b)(5) of the Granting Accelerated Approval of stopped order in Timed Enhanced Act in that it is designed to promote just Proposed Rule Change SuperMAX will be executed at the and equitable principles of trade, to The Commission has reviewed expiration of a specified time period as remove impediments and to perfect the carefully CHX’s proposed rule change designated by a specialist. mechanism of a free and open market and concludes that the proposed rule Under the proposal, Enhanced and a national market system, and, in change is consistent with the SuperMAX and Timed Enhanced general, to protect investors and the requirements of the Act and the rules SuperMAX would not execute an order public interest. and regulations thereunder applicable to at the BBO if such execution would a national securities exchange, and in 3 See Securities Exchange Act Release No. 30058 particular, with Section 6(b)(5) of the regarding SuperMAX, see infra note 12 and the (Dec. 10, 1991), 56 FR 65765 (Dec. 18, 1991) (order Act.5 accompanying text. approving SR–MSE–91–12). The pilot program was The proposed rule change provides 7 The Exchange will file an amendment to the subsequently extended in Securities Exchange Act for modified versions of the SuperMAX proposed rule change in the near future to codify Release Nos. 30701 (May 14, 1992), 57 FR 21683 6 the procedures with respect to a specialist’s ability (May 21, 1992) (File No. SR–MSE–92–06); 310238 system (Enhanced SuperMAX and to make a security eligible for Enhanced SuperMAX (Aug. 13, 1992), 57 FR 37856 (Aug. 20, 1992) (File and Time Enhanced SuperMAX. A specialist will No. SR–MSE–92–09); and 31857 (Feb. 12, 1993) 58 5 15 U.S.C. 78f(b)(5) (1988 & Supp. V. 1993). be permitted to engage and disengage Enhanced FR 9227 (Feb. 19, 1993) (File No. SR–MSE–01). 6 SuperMAX is a system that automatically SuperMAX and Timed Enhanced SuperMAX for a 4 The term national best bid or best offer is improves executions of small agency market orders given stock only once a month. See letter from defined under SEC Rule 11Ac1–2 as the highest bid from the consolidated best bid or offer according to David Rusoff, Foley & Lardner, to Glen Barretine, or lowest offer for a reported security made certain predefined criteria. In 1990, the Commission Senior Counsel, SEC, dated July 21, 1995. available by any reporting market center pursuant first approved SuperMAX on a pilot basis. See 8 The Dual Trading System of the Exchange to Rule 11Ac1–1 or the highest bid or lowest offer Securities Exchange Act Release No. 28014 (May allows the execution of both round-lot and odd-lot for a security other than a reported security 14, 1990), 55 FR 20880 (May 21, 1990) (File No. SR– orders in certain issues assigned to specialists on disseminated by an over-the-counter market maker MSE–90–05). In 1993, the Commission approved the Exchange and listed on either the New York in Level 2 or 3 of Nasdaq. SuperMAX on a permanent basis. For more detail Stock Exchange or the American Stock Exchange. 39468 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices result in an out-of-range execution.9 If a the initial Enhanced SuperMAX pilot is identical to the previous pilot specialist chooses the Enhanced program approval order, the program except that the start up time SuperMAX and Timed Enhanced Commission expressed concerns about will be 8:45 a.m. (C.T.). The Timed SuperMAX, the criteria for the systems the possible adverse effects on Enhanced SuperMAX procedures are must be followed for all eligible stocks. execution quality of a lack of order identical to those of Enhanced If a specialist chooses to have Enhanced exposure.13 The Commission also SuperMAX except that the stopped SuperMAX and Timed Enhanced acknowledged, however, that increased order will be executed at the top price SuperMAX run concurrently with order exposure may impose certain after a period of time that has been SuperMAX, then the size of the agency economic costs in terms of execution designated by the specialist but may not market order would determine which delay and interjection of manual be shorter than 30 seconds has expired. method of execution will be followed. processing. Moreover, the Commission This additional feature is intended to An order of 599 shares or fewer will be recognized that most of the Exchange’s allow orders in inactive stocks to be executed according to SuperMAX rules; automatic execution systems in effect (at provided with an opportunity for price an order of 600 shares to 1,099 shares this time) provided executions at the improvement but to be executed will be executed according to Enhanced quote only. without unduly delay. Therefore, the SuperMAX and Timed Enhanced In approving the Enhanced Commission finds that the proposed SuperMAX rules. An order will never be SuperMAX feature on a pilot basis, the rule change is consistent with Section subject to execution under the rules of Commission believed that this proposal 6(b)(5) of the Act, in that it is designed both SuperMAX and Enhanced was less ideal than SuperMAX, but that to promote just and equitable principles SuperMAX (or Timed Enhanced the Commission would revisit its of trade, perfect the mechanisms of a SuperMAX). concerns in the event that the CHX free and open market, and in general to Any eligible order in a stock included requested permanent approval. In this protect investors and the public interest. in Enhanced SuperMAX or Timed regard, the Commission stated that any The Commission believes that it Enhanced SuperMAX that is manually request for permanent approval must be would be appropriate to allow the presented at the specialist post by a accompanied by a report containing Exchange to implement Enhanced floor broker also must be guaranteed an certain data on the Enhanced SuperMAX and Timed Enhanced execution by the specialist pursuant to SuperMAX system.14 SuperMAX for a one-year period to the appropriate system criteria. In the The Commission believes that pricing afford the Exchange and the unlikely event that a contra side order and execution procedures of Enhanced Commission an opportunity to monitor that would better the Enhanced SuperMAX and Timed Enhanced the operation of the systems and SuperMAX and Timed Enhanced SuperMAX are consistent with the determine their effectiveness. The SuperMAX execution is presented at the maintenance of fair and orderly auction Exchange should monitor the use of the post, the specialist must adjust the markets on national securities systems during the one-year pilot period incoming order that was executed exchanges. Moreover, the Commission and assure the Commission that there pursuant to the Enhanced SuperMAX or believes that the execution criteria of are no adverse effects on the quality of Timed Enhanced SuperMAX criteria. Enhanced SuperMAX and Timed customer order executions. Moreover, During volatile periods, individual Enhanced SuperMAX should contribute the Exchange should examine the use of stocks or all stocks may be removed to an orderly market because they help the systems during the pilot period to from Enhanced SuperMAX or Timed to reduce variations from trade to trade determine whether specialists are Enhanced SuperMAX with the approval on low volume. Finally, although the choosing the appropriate system for of two members of the Committee on proposals will not automatically each of their stocks. Floor Procedure.10 provide price improvement, they will The Commission, therefore, requests The Exchange represented that as a provide some opportunity for customers that the Exchange submit a report to the result of testing extensively both to receive a better price. The Enhanced Commission by May 31, 1996, versions of Enhanced SuperMAX, the SuperMAX being proposed in this filing describing its experience with the pilot Exchange concludes that Enhanced program. At a minimum, this report SuperMAX and Timed Enhanced SuperMAX and SuperMAX systems and determine should contain the following data SuperMAX will not have any significant which system it wanted to implement. In 1993, the gathered during the first 9-month period Exchange chose to implement SuperMAX rather 11 after the start-up date for Enhanced impact upon CHX’s systems capacity. than Enhanced SuperMAX and sought approval of In 1991, the Commission approved on SuperMAX on a permanent basis. The Commission SuperMAX and Timed Enhanced a pilot basis Enhanced SuperMAX to permanently approved SuperMAX believing that SuperMAX: (1) The number of orders run concurrently with SuperMAX, the automated execution feature of SuperMAX executed in SuperMAX, Enhanced 12 would provide a more efficient means of bettering SuperMAX, and Timed Enhanced which was on a pilot at that time. In the execution price on a large volume of electronically delivered market orders than through SuperMAX; (2) share and dollar volume 9 The term ‘‘out-of-range’’ means either higher or manual processing. The Enhanced SuperMAX pilot for all three systems; (3) comparisons of lower than the price range in which the security expired in 1993 without the Exchange requesting an orders executed under SuperMAX, traded on the primary market during a particular extension or permanent approval. See Securities Enhanced SuperMAX, and Timed trading day. Exchange Act Release No. 32631 (July 14, 1993), 58 10 When stocks are removed from Enhanced FR 30969 (July 21, 1993) (File No. SR–MSE–93–10) Enhanced SuperMAX, indicating where SuperMAX or Timed Enhanced SuperMAX, CHX (approving permanently SuperMAX). orders executed under one system would broadcast a message through the MAX 13 See Secutiries Exchange Act Release No, 30058 would have received a more favorable system indicating that the affected stocks are off (Dec. 10, 1991), 56 FR 65765 (Dec. 18, 1991) (order execution under another system; (4) the Enhanced SuperMAX or Timed Enhanced approving SR–MSE–91–12). number of specialists using each system, SuperMAX. Telephone conversation between David 14 In the initial pilot approval order, the Rusoff, Foley & Lardner, and Jennifer Choi, Commission described its concerns with the and the number of stocks included in Attorney, Division of Market Regulation, SEC. on program and requested that the Exchange submit a each; (5) the average length of time July 21, 1995. report detailing the use of the pilot. The Exchange, between receipt of an order and 11 See letter from David Rusoff, Foley & Lardner, however, did not submit a report because execution under each system; (6) the to Glen Barrentine, Senior Counsel, SEC, dated July specialists on the Exchange made little or no use 21, 1995. of the pilot program. Telephone conversation types of securities being chosen for each 12 The Exchange sought approval of the Enhanced between David Rusoff, Foley & Lardner, and Glen system (if a pattern is discernable); (7) SuperMAX program to evaluate both Enhanced Barrentine and Jennifer Choi, SEC. on July 18, 1995. a break down of each issue chosen for Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39469 each system during the pilot period, DEPARTMENT OF STATE Respondents—American sponsored including each date the issue was schools overseas. [Public Notice 2232] placed on each system and removed; Estimated number of respondents— and (8) whether any distinguishable Public Information Collection 190. market condition existed when an issue Requirement Submitted to OMB for Average number of responses per was placed on or taken off each system. Review respondent—1. Any requests to modify this pilot Average hours per response—.5. program, to extend its effectiveness, or AGENCY: Department of State. Total estimated burden hours—95. to seek permanent approval for the pilot ACTION: The Department of State has Section 3504(h) of Public Law 96–511 program also should be submitted to the submitted the following public does not apply. Commission by May 31, 1996, as a information collection requirements to ADDITIONAL INFORMATION OR COMMENTS: proposed rule change pursuant to OMB for review and clearance under the Copies of the proposed forms and Section 19(b) of the Act. Paperwork Reduction Act of 1980, Pub. supporting documents may be obtained L. 96–511. The Commission finds good cause for from Charles S. Cunningham (202) 647– 0596. Comments and questions should approving the proposed rule change SUMMARY: The Office of Overseas be directed to (OMB) Jefferson Hill (202) prior to the thirtieth day after the date Schools of the Department of State is 395–3176. of publication of notice thereof in the responsible for determining that Federal Register. The Commission adequate educational opportunities Dated: June 25, 1995. believes that it is appropriate to approve exist at Foreign Service posts for Patrick F. Kennedy, the proposed rule change on an dependents of U.S. Government Assistant Secretary for Administration. accelerated basis so that the Exchange personnel stationed abroad, and for [FR Doc. 95–18901 Filed 8–1–95; 8:45 am] can enable public customers to receive assisting American-sponsored overseas BILLING CODE 4710±24±M the benefits of Enhanced SuperMAX schools to demonstrate U.S. educational and Timed Enhanced SuperMAX philosophy and practice. The Foreign Bureau of Political-Military Affairs without delay. Moreover, the Enhanced Assistance Act of 1961, as amended, SuperMAX feature previously has been Mutual Educational and Cultural Affairs [Public Notice 2211] Act of 1961, as amended, and the on a pilot program from December 1991 Department of State Basic Authorities through April 1993, and the Determination Under the Arms Export Act of 1956, as amended by the Foreign Control Act Commission is approving CHX’s Service Act of 1980, authorize the Enhanced SuperMAX and Timed function of the Office of Overseas Pursuant to Section 654(c) of the Enhanced SuperMAX only for a one- Schools. The information gathered Foreign Assistance Act of 1961, as 15 year pilot period. During that time, the enables the Office of Overseas Schools amended, notice hereby is given that the Commission and the Exchange will be to advise the Department and other Under the Secretary of State for Arms able to examine whether these programs foreign affairs agencies regarding Control and International Security are successful at providing for automatic current and constantly-changing Affairs has made a determination execution of orders at prices consistent conditions, and also to make judgments pursuant to Section 73 of the Arms with the maintenance of fair and orderly regarding assistance to schools for the Export Control Act and has concluded markets and can determine whether to improvement of educational that publication of the determination extend the pilots for a further period or opportunities. The following would be harmful to the national make the programs permanent. The summarizes the information collection security of the United States. Commission, therefore, believes that proposals submitted to OMB: Dated: May 15, 1995. granting accelerated approval of the 1. Type of request—Reinstatement. Thomas E. McNamara, proposed rule change is appropriate and Originating office—Bureau of Assistant Secretary of State for Political- consistent with Section 6 of the Act.16 Administration, Office of Overseas Military Affairs. It is therefore ordered, pursuant to Schools. [FR Doc. 95–18902 Filed 8–1–95; 8:45 am] Section 19(b)(2) of the Act,17 that the Title of information collection— BILLING CODE 4710±25±M proposed rule change (SR–CHX–95–15) Overseas Schools Questionnaire. is approved on a pilot basis until July Form No.—FS–573, FS–573A, FS– 573B. [Public Notice 2233] 31, 1996. Frequency—Annually. For the Commission, by the Division of Respondents—American sponsored Privacy Act of 1974; Altered Systems Market Regulation, pursuant to delegated schools overseas. of Records authority.18 Estimated number of respondents— Margaret H. McFarland, Notice is hereby given that the 190. Department of State proposes to alter Deputy Secretary. Average number of responses per three systems of records, STATE–05, [FR Doc. 95–18960 Filed 8–1–95; 8:45 am] respondent—1. STATE–26 and STATE–39 pursuant to BILLING CODE 8010±01±M Average hours per response—1 hour. the provisions of the Privacy Act of Total estimated burden hours—190. 1974, as amended (5 U.S.C. 552a(r)), and 2. Type of request—Reinstatement. the Office of Management and Budget Originating office—Bureau of Circular No. A–130, Appendix I. The 15 The Enhanced SuperMAX system has been published for comment in the Federal Register Administration, Office of Overseas Department’s report was filed with the previously, and there have been no adverse Schools. Office of Management and Budget on comments on it. Title of information collection— July 20, 1995. 16 15 U.S.C. 78f (1988 & Supp. V 1993). Request for Assistance. It is proposed that the current system 17 15 U.S.C. 78s(b)(2) (1988). Form No.—FS–574. STATE–05 entitled ‘‘Consular Service 18 17 CFR 200.30–3a(a)(12) (1994). Frequency—Annually. and Assistance Records’’ be renamed 39470 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices ‘‘Overseas Citizens Services Records.’’ consular officers overseas including (i) 22 U.S.C. 4215, 4221 The system names for Passport Records persons, generally U.S. citizens, who: (Administration of oaths, affidavits, and (STATE–26) and Visa Records (STATE– (a) Seek to establish claims to U.S. other notarial acts); 39) will not change. It is also proposed citizenship or inquire concerning (j) 28 U.S.C. 1740, 1741 that the three system descriptions possible loss of U.S. citizenship; (Authentication of documents); include revisions and/or additions to (b) Apply for U.S. passports or (k) 28 U.S.C. 1781–1783 (Judicial each section except ‘‘Systems exempted Consular Reports of Birth Abroad; assistance to U.S. and foreign courts); from certain provisions of the Act.’’ The (c) Register as U.S. citizens living or (l) 22 U.S.C. 4196 (Notification of altering of these systems of records will traveling abroad; death; inventory of decedents’ effects; reflect more accurately the Bureau of (d) Are evacuated to the United States (m) 22 U.S.C. 5502–5513 (Secs. 204– Consular Affairs’ recordkeeping or a third country as the result of a civil 215) (Assistance in aviation disasters practices, the enlargement of the scope disorder, natural disaster or similar abroad); of its mandate, and a reorganization of emergency in an overseas locale; (n) 22 U.S.C. 4195, 4197 (Estates of its activities and operations. It should be (e) Initiate, or are the subjects of, deceased citizens); noted that the Overseas Citizens requests relating to their welfare and (o) 22 U.S.C. 3904 (Assistance to other Services Records and Passport Records whereabouts; agencies); may overlap due to their inter- (f) Receive financial assistance or are (p) 42 U.S.C. 402 (Old-age and relationship. Also, records about repatriated; survivors insurance benefits payments); consular affairs matters will be removed (g) Receive emergency medical (q) 50 App. U.S.C. 453, 454, from Overseas Records, STATE–25 and assistance; Presidential Proclamation No. 4771, July (h) Are detained or arrested overseas; will become part of STATE–05, STATE– 2, 1980 (Selective Service registration); (i) Seek or receive notarial, 26 and/or STATE–39. STATE–25 will (r) 42 U.S.C. 1973ff–1973ff–6 authentication, or judicial assistance; (Overseas absentee voting); be amended and updated in the near (j) Die overseas or are involved in the (s) 22 U.S.C. 4193, 4194, 4205–4207, future. disposition of a decedent’s personal Any persons interested in 46 U.S.C. 10318 (Assistance to shipping estate; commenting on these altered systems of (k) Assert an interest in property and seamen); records may do so by submitting abroad; (t) 46 U.S.C. 10701–10705 comments in writing to Margaret P. (l) Are living overseas and claim or (Responsibility for deceased seamen and Grafeld; Chief, Privacy, Plans, and receive federal benefits; their effects); Appeals Division; Office of Freedom of (m) Are involved in an international (u) 42 U.S.C. 11601–11610, Information, Privacy and Classification child custody dispute, possible child International Child Abduction Remedies Review; Room 1239, Department of abuse case, or child support Act; Convention on the Civil Aspects of State, 2201 C Street, NW, Washington, enforcement proceeding; International Child Abduction; E.O. DC 20520–1239. These systems of (n) Vote in U.S. federal or state 12648, August 11, 1988, 53 FR 30637); records will be effective 40 days from elections while living overseas; (v) Sec. 599C of Pub. L. 101–513 as the date of publication, unless we (o) Register with the U.S. Selective amended (Claims to benefits by virtue of receive comments which will result in Service System while living overseas; hostage status). a contrary determination. (p) Are inquiring concerning an CATEGORIES OF RECORDS IN THE SYSTEM: The altered system descriptions, international adoption; ‘‘Overseas Citizens Services Records, (q) Are American seamen who have Applications for passports and STATE–05,’’ ‘‘Passport Records, inquired about seamen consular registration as U.S. citizens;* Consular STATE–26’’ and ‘‘Visa Records, services; Reports of Birth;* Certificates of Loss of STATE–39’’ will read as set forth below. (r) Have sought or received benefits by Nationality of the United States;* Reports of Death;* emergency medical Dated: July 19, 1995. virtue of having been held hostage overseas or by virtue of their and dietary loan applications; Patrick F. Kennedy, repatriation loan applications; Assistant Secretary for the Bureau of relationship with an individual held hostage overseas. applications for benefits for hostages; Administration. seamen services records; welfare and STATE±05 AUTHORITY FOR MAINTENANCE OF THE SYSTEM: whereabouts records; federal benefits (a) 8 U.S.C. 1401 et seq. (Adjudication claims; property claims; arrest cases; SYSTEM NAME: of claim to U.S. citizenship); estate cases; judicial assistance cases; Overseas Citizens Services Records. (b) 8 U.S.C. 1481, 1501 (Adjudication international adoption cases; and child SECURITY CLASSIFICATION: of possible loss of nationality and custody cases, including applications preparation of Certificates of Loss of Classified. filed under the Hague Convention on Nationality); International Child Abduction. SYSTEM LOCATION: (c) 22 U.S.C. 211a, 212, 213, 217(a), These records may also include: Department of State, 2201 C Street, 218 (Passport application and issuance); registration cards; interview worksheets; NW, Washington, DC 20520 and (d) 22 U.S.C. 2705 (Preparation of fingerprint cards; documents of identity; overseas at U.S. embassies, U.S. Consular Reports of Birth); affidavits of identity; and various consulates general and consulates. (A (e) 22 U.S.C. 1731 (Protection of related forms not otherwise stated as list of overseas posts is available from naturalized U.S citizens abroad); well as communications from U.S. the Bureau of Consular Affairs, Room (f) 22 U.S.C. 2671(b)(2)(B) embassies, U.S. consulates general, 4800, Department of State, Washington, (Repatriation loan for destitute U.S. consulates, federal, state and local DC 20520–4818.) citizens); government agencies, members of (g) 22 U.S.C. 2670(j) (Provision of Congress, officials of foreign CATEGORIES OF INDIVIDUALS COVERED BY THE emergency medical/dietary assistance); SYSTEM: (h) 22 U.S.C. 2151n–1 (Assistance to * These records are eventually transferred from Individuals assisted by the Office of arrested citizens) (Repealed, but Overseas Citizens Services Records, STATE–05, to Overseas Citizens Services or by applicable to past records.); Passport Records, STATE–26. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39471 governments and courts or organizations consulates general and consulates to proper escort. All records containing such as the Red Cross, subject of the serve, primarily in emergency and personal information are maintained in record, attorneys, relatives and other evacuation situations, as channels of secured file cabinets or in restricted interested parties. communication with other Americans areas access to which is limited to in the local community; Attorneys when authorized personnel. Access to ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND the individual to whom the information computerized data bases is password- PURPOSES OF SUCH USES: pertains is the client of the attorney protected and under the responsibility The information in the Overseas making the request, or when the of the system manager and persons who Citizens Services Records is used attorney is acting on behalf of some report to him or her. The system primarily in the adjudication of claims other individual to whom access is manager has the capability of printing relating to acquisition or loss of U.S. authorized under these rules; the Red audit trails of access from the electronic citizenship; the protection and Cross; State law enforcement agencies; media, thereby permitting regular ad assistance of individuals abroad; the including state prosecutors; Foreign hoc monitoring of computer usage. governments, embassies and consulates assistance to individuals involved in RETENTION AND DISPOSAL: child custody; adoption and child when the request for information is made pursuant to customary Retention of these records varies support enforcement proceedings; and depending upon the specific kind of the resolution of property, estate, and international practice; Private citizens whenever the individual to whom the record involved. They are retired or benefits claims arising under the destroyed in accordance with published pertinent statutes. The routine uses for information pertains has authorized the record schedules of the Department of Passport Records, STATE–26, apply to Department in writing to release such State and as approved by the National applications for passports and information; INTERPOL; National Archives and Records Administration. registration as U.S. citizens, Consular Center for Missing and Exploited More specific information may be Reports of Birth, Certificates of Loss of Children; Various central authorities of obtained by writing to the Director, Nationality of the United States, Reports member countries of the Hague Office of Freedom of Information, of Death, and related documentation. International Child Abduction Privacy, and Classification Review; The principal users of this information Convention; Contacts identified by state Room 1239; Department of State; 2201 outside the Department of State are: governments to assist in implementation C Street, NW; Washington, DC 20520– Social Security Administration; of the Hague International Child 1239. Veterans Administration; Department of Abduction Convention; Bar associations Health and Human Services; U.S. Public and legal aid services to assist in SYSTEM MANAGER AND ADDRESS: facilitating operations under the Hague Health Service; Office of Personnel Deputy Assistant Secretary for International Child Abduction Management; Railroad Retirement Overseas Citizens Services; Room 4800; Convention; Local police in connection Board; Treasury Department; Department of State; 2201 C Street, NW; with notification of next-of-kin and Department of Labor; Department of Washington, DC 20520–4818. At child custody disputes; Social service Justice; Drug Enforcement overseas locations, the on-site system agencies; and Parents involved in Hague Administration; Selective Service; manager is the Chief of the Consular International Child Abduction cases. Department of Defense; Federal Section or another State Department This information may also be released Aviation Administration; U.S. Maritime employee with responsibility for on a need-to-know basis to other Administration; Department of consular services as provided by the government agencies having statutory or Commerce; Foreign Claims Settlement post in question. Commission; Immigration and other lawful authority to maintain such Naturalization Service; Secret Service; information; information is made NOTIFICATION PROCEDURE: Internal Revenue Service for the current available to routine users only for an Individuals who have reason to addresses of specifically identified established routine use. Also see the believe that the Office of Overseas taxpayers in connection with pending ‘‘Routine Uses’’ paragraph of the Citizens Services might have records actions to collect taxes accrued, Prefatory Statement published in the pertaining to themselves should write to examinations, and/or other related tax Federal Register. the Director, Office of Freedom of activities; Foreign and domestic airlines POLICIES AND PRACTICES FOR STORING, Information, Privacy and Classification when the information is required for the RETRIEVING, ACCESSING, RETAINING AND Review; Room 1239; Department of purpose of notifying next-of-kin of the DISPOSING OF RECORDS IN THE SYSTEM: State; 2201 C Street, NW; Washington, death, injury or status of the individual DC 20520–1239. The individual must STORAGE: to whom it pertains, or in connection specify that he/she wishes the Overseas with a medical evaluation of the Electronic media, hard copy. Citizens Services Records checked. At a individual to whom it pertains; Funeral RETRIEVABILITY: minimum, the individual must include: homes in connection with the death By individual name, passport number. Name; date and place of birth; current abroad of citizens of the U.S.; Members mailing address and zip code; signature; of Congress when the information is SAFEGUARDS: a brief description of the circumstances requested on behalf of the individual to All employees of the Department of which may have caused the creation of whom access is authorized under these State have undergone a thorough the record, including the location (city rules; Shipping companies when the background security investigation, and and country); and the approximate dates information is maintained pursuant to contractors have had background which give the individual cause to the Department’s responsibility under investigations in accordance with the believe that Overseas Citizens Services Title 46 of the U.S. Code; Immediate scope of their contract. Access to the has records pertaining to him/her. A families when the information is Department of State and posts abroad is request to search Overseas Citizens required for the benefit of the subject by controlled by security guards, and Services Records, STATE–05, will be the individual’s immediate family; admission is limited to those treated also as a request to search Private United States citizen ‘‘wardens’’ individuals possessing a valid Passport Records, STATE–26, when it designated by U.S. embassies and U.S. identification card or individuals under pertains to passport, registration, 39472 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices citizenship, birth or death records (h) Individuals who have applied at Certificates of Identity or Cards of transferred from STATE–05 to STATE– American Diplomatic or Consular Posts Identity and Registration as U.S. 26. for issuance of Certificates of Witness to citizens; Lookout files which identify Marriage, and, individuals who have those persons whose cases require other RECORD ACCESS AND AMENDMENT PROCEDURES: been issued Certificates of Witness to than routine examination or action; Individuals who wish to gain access Marriage; Miscellaneous materials—those to or amend records pertaining to (i) Deceased individuals for whom a documents/records maintained themselves should write to the Director, Report of Death of an American Citizen separately, if not in the application, Office of Freedom of Information, Abroad has been obtained; including but not limited to: Privacy and Classification Review (j) Individuals who although U.S. Investigatory reports compiled in (address above). citizens are not or may not be entitled connection with granting or denying RECORDS SOURCE CATEGORIES: under passport laws and regulations to passport and related services or the issuance or possession of U.S. prosecuting violations of passport These records contain information passports or other documentation or criminal statutes; transcripts and obtained primarily from the individual service; opinions on administrative hearings, who is the subject of these records; (k) Individuals whose previous appeals and civil actions in federal consular officers; relatives; and passport records must be reviewed courts; legal briefs, memoranda, judicial interested federal, state and local before further action can be taken; orders and opinions arising from agencies; and officials of foreign (l) Individuals who requested administrative determinations relating governments and courts or organizations passport records under FOIA or the to passports and citizenship; birth and such as the Red Cross. Privacy Act, whether successful or not; baptismal certificates; court orders; SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS (m) Individuals who have arrest warrants; medical, personal and OF THE ACT: corresponded with Passport Services financial reports; affidavits; inter-agency Certain records contained within this concerning various aspects of the and intra-agency memoranda, telegrams, system of records are exempted from 5 issuance or denial of U.S. passports. letters and other miscellaneous correspondence; an electronic index of U.S.C. 522a(c)(3), (d), (e)(1), (e)(4)(G), AUTHORITY FOR MAINTENANCE OF THE SYSTEM: (H), and (I) and (f). See Department of all passport application records created (a) 8 U.S.C. 1401–1503 (Acquisition State Rules published in the Federal since 1978 and some passport and Loss of U.S. Citizenship’s use of Register. application records created between U.S. Passports); 1962 and 1978; a currently expanding STATE±26 (b) 18 U.S.C. 911, 1001, 1541 thru electronic index of Department of State 1546 Reports of Birth of American Citizens SYSTEM NAME: (c) 22 U.S.C. 211a thru 218, 1172 abroad which will eventually include Passport Records. (now repealed), 2658, 2662, 2705: all such documents. Executive Order 11295, August 5, 1966, SECURITY CLASSIFICATION: 31 FR 10603; (Authority of the Secretary ROUTINE USES OF RECORDS MAINTAINED IN THE Classified. of State in granting and issuing U.S. SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: SYSTEM LOCATION: passports); The information maintained in the Department of State, Passport (d) 8 U.S.C. 1185 (Travel documentation of Citizens). Passport Services records is used to Services, Annex 17, 1111 19th Street, establish the U.S. citizenship and NW, Washington, DC 20522–1705. CATEGORIES OF RECORDS IN THE SYSTEM: identity of persons for a variety of legal CATEGORIES OF INDIVIDUALS COVERED BY THE Applications for passports, or purposes including, but not limited to SYSTEM: applications for amendment, extension the adjudication of passport (a) Individuals who have applied for or renewal of passports; applications for applications and requests for related the issuance, amendment, extension or registration at American Diplomatic and services, social security benefits, renewal of U.S. passports; Consular Posts as U.S. citizens or for employment applications, estate (b) Individuals who have been issued issuance of Certificates of Identity or settlements and federal and state law U.S. passports or had passports Cards of Identity and Registration as enforcement investigations. The amended, extended, renewed, limited, U.S. Citizens; Consular Reports of Birth principal users of this information revoked or denied; Abroad of United States citizens; outside the Department of State are: (c) Individuals who have applied to Certificates of Witness to Marriage; Internal Revenue Service for the current have births overseas reported as births Certificates of Loss of United States addresses of specifically identified of U.S. citizens overseas; Nationality; Certificates of Expatriation; taxpayers in connection with pending (d) Individuals for whom Consular Oaths of Repatriation; and Reports of actions to collect taxes accrued, Reports of Birth Abroad of U.S. citizens Death of an American Citizen Abroad. examinations, and/or other related tax or Certifications of Birth have been Names of persons who have applied for, activities; Foreign governments, to issued; been issued passports or related permit such governments to fulfill (e) Individuals who have applied at facilities; and, to the extent not included passport control and immigration American Diplomatic or Consular posts in the Application for Vital Records or duties; Federal, state, local or other for registration and have so registered; other category of records maintained by agencies having information on an (f) Individuals who have been issued this agency; the names of persons who individual’s history, nationality or Certificates of Identity or Cards of have been issued Consular Reports of identity; to the extent necessary to Registration and Identity as U.S. Birth; Certificates of Birth; Consular obtain information from these agencies citizens; Certificates of Repatriation; Certificates relevant to adjudicating an application (g) Individuals for whom the of Witness to Marriage; Certificates of for a passport or related service or Department of State has issued Loss of United States Nationality; where there is reason to believe that an Certificates of Loss of Nationality of the Reports of Death of an American Citizen individual has applied for or is in United States; Abroad; or been registered or issued possession of a U.S. passport Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39473 fraudulently or has violated the law; involved. They are retired or destroyed STATE±39 Immediate families when the in accordance with published record SYSTEM NAME: information is required by the schedules of the Department of State individual’s immediate family and may and as approved by the National Visa records. be released consistent with the Privacy Archives and Records Administration. SECURITY CLASSIFICATION: Act and/or the Freedom of Information More specific information may be Classified. Act; Private U.S. citizen ‘‘wardens’’ obtained by writing to the Director, designated by U.S. embassies and Office of Freedom of Information, SYSTEM LOCATION: consulates to serve, primarily in Privacy and Classification Review; Visa Office, Department of State, emergency and evacuation situations, as Room 1239; Department of State; 2201 Annex 1, 2401 E Street NW, channels of communication with other C Street, NW., Washington, DC 20520– Washington, DC 20522–0113; U.S. citizens in the local community; 1239. Department of State, 2201 C Street NW, Attorneys when the individual to whom Washington, DC 20520–4818; National SYSTEM MANAGER AND ADDRESS: the information pertains is the client of Visa Center, 32 Rochester Avenue, the attorney making the request; Deputy Assistant Secretary of State for Portsmouth, NH 63801; U.S. embassies, Members of Congress when the Passport Services, Room 5807; consulates general and consulates. information is requested on behalf of the Department of State; 2201 C Street, NW., individual to whom access is authorized Washington, DC 20520–4818. CATEGORIES OF INDIVIDUALS COVERED BY THE under these rules. This information may SYSTEM: also be released on a need-to-know basis NOTIFICATION PROCEDURE: Individuals who have applied for to other government agencies having Individuals who have reason to visas; aliens who may be ineligible to statutory or other lawful authority to believe that Passport Services might receive visas including certain dual maintain such information; information have records pertaining to themselves national U.S. nationals who aside from is made available to routine users only should write to the Director, Office of their U.S. nationality may otherwise be for an established routine use. Also see Freedom of Information, Privacy and ineligible to receive visas. the ‘‘Routine Uses’’ paragraph of the Classification Review; Room 1239; AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Prefatory Statement published in the Department of State; 2201 C Street, NW., Federal Register. Washington, DC 20520–1239. The 8 U.S.C. 1101–1503 (Immigration and Nationality Act of 1952, as amended). POLICIES AND PRACTICES FOR STORING, individual must specify that he/she RETRIEVING, ACCESSING, RETAINING AND wishes the Passport Services records CATEGORIES OF RECORDS IN THE SYSTEM: DISPOSING OF RECORDS IN THE SYSTEM: checked. At a minimum, the individual Visa applications and related forms; must include: Name, date and place of STORAGE: fingerprints; birth, marriage, death and birth, current mailing address, zip code, Hard copy, electronic media. divorce certificates; documents of signature and passport number if identity; interview worksheets; RETRIEVABILITY: known. A request to search Passport biographic information sheets; affidavits By individual name or passport Records, STATE–26, will be treated also of relationship; medical examinations number. as a request to search Overseas Citizens and immunization reports; police Services Records, STATE–05, when it SAFEGUARDS: records; educational and employment pertains to passport, registration, records; bank statements; All employees of the Department of citizenship, birth or death records communications between the Visa State have undergone a thorough transferred from STATE–05 to STATE– Office, the National Visa Center and background security investigation and 26. contractors have background U.S. embassies, U.S. consulates general investigations in accordance with their RECORD ACCESS AND AMENDMENT PROCEDURES: and U.S. consulates, other U.S. contracts. Access to the Department of government agencies, international Individuals who wish to gain access State and its annexes is controlled by organizations, foreign missions, to or amend records pertaining to security guards, and admission is members of Congress, attorneys, themselves should write to the Director, limited to those individuals possessing relatives of visa applicants and other a valid identification card or individuals Office of Freedom of Information, interested parties; and internal under proper escort. Access to passport Privacy and Classification Review Department of State correspondence office annexes have security access (address above). relating to visa adjudication. controls (code entrances) and/or RECORD SOURCE CATEGORIES: security alarm systems. All records ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND containing personal information are These records contain information PURPOSES OF SUCH USES: maintained in secured file cabinets or in obtained primarily from the individual restricted areas access to which is who is the subject of these records; law The information in this system is used limited to authorized personnel. Access enforcement agencies; investigative to assist consular officers in the to computerized data bases is password- intelligence sources, investigative Department and overseas in dealing protected and under the responsibility security sources and officials of foreign with problems of a legal, technical or of the system manager and persons who governments. procedural nature that may arise in report to him or her. The system considering an application for a U.S. SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS visa. The principal users of this manager has the capability of printing OF THE ACT: audit trails of access from the electronic information outside the Department of media, thereby permitting regular ad Certain records contained within this State (and its embassies, consulates hoc monitoring of computer usage. system of records are exempted from 5 general and consulates) are: the U.S.C. 552(a), (c)(3), (d), (e)(1), (e)(4) (G), Immigration and Naturalization Service RETENTION AND DISPOSAL: (H), and (I) and (f). See Department of of the Department of Justice, to Retention of these records varies State Rules published in the Federal coordinate the approval of petitions and depending upon the specific record Register. the issuance of visas; the Department of 39474 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Justice including the Federal Bureau of to the Director, Office of Freedom of DEPARTMENT OF TRANSPORTATION Investigation (and its National Crime Information, Privacy, and Classification Information Center) and the Drug Review; Room 1239; Department of Coast Guard Enforcement Administration; State; 2201 C Street NW; Washington, [CGD 95±063] Department of the Treasury, including DC 20520–1239. the Customs Service; Department of New York Port Oil Pollution Labor; Central Intelligence Agency; SYSTEM MANAGER AND ADDRESS: Minimization Demonstration Department of Defense; and Congress. Deputy Assistant Secretary for Visa Limited unclassified information is AGENCY: Coast Guard, DOT. Services, Room 6811, Department of released to interested persons inquiring ACTION: Notice of Port Demonstration; State, 2201 C Street, NW, Washington, as to the status of a particular visa case. request for proposals to participate. DC 20520–4818; Director, National Visa The information may also be released to Center, 32 Rochester Avenue, SUMMARY: The Interagency Coordinating other government agencies having Portsmouth, NH 63801. At specific Committee on Oil Pollution Research statutory or other lawful authority to use overseas locations the one-site manager invites interested parties to participate such information. It is used to produce in the New York Port Oil Pollution statistical information for management is the consular officer responsible for visa processing. Minimization Demonstration (Port purposes and to compile reports Demonstration). The purpose of this required by statute. Also see the NOTIFICATION PROCEDURE: demonstration, which is mandated by ‘‘Routine Uses’’ paragraph of the the Oil Pollution Act of 1990 (OPA 90), Prefatory Statement published in the Individuals who have reason to is to showcase recently developed Federal Register. believe the Department of State might innovative technologies from oil have visa records pertaining to POLICIES AND PRACTICES FOR STORING, pollution research and development themselves should write to the Director, RETRIEVING, ACCESSING, RETAINING AND programs since the passage of OPA 90. DISPOSING OF RECORDS IN THE SYSTEM: Office of Freedom of Information, These technologies are used in spill Privacy and Classification Review; prevention, response, mitigation, fate STORAGE: Room 1239; Department of State; 2201 and effects, and restoration. Interested Electronic media, hard copy, C Street NW; Washington, DC 20520– parties are requested to submit microfilm. 1239. The individual must specify that proposals for demonstration their he/she wishes the visa records for his/ RETRIEVABILITY: technologies. Federal, State, and local her application at a specific post/posts government officials, as well as research Individual name, case number. or in the United States to be checked. institutions, colleges, and universities, SAFEGUARDS: At a minimum, the individual must will receive written invitations to All employees of the Department of include: Name (and any aliases); date participate and observe. The Port State have undergone a thorough and place of birth; date and place of Demonstration will be open to the background security investigation and application; current mailing address and public. contractors have had background zip code; and signature. DATES: The Port Demonstration will be investigations in accordance with the held October 26 through 28, 1995. scope of their contract. Access to the RECORD ACCESS AND AMENDMENT PROCEDURES: Proposals for presentations must be Department and its annexes is Individuals who wish to gain access received by September 1, 1995. controlled by security guards, and to or amend records pertaining to ADDRESSES: The Port Demonstration admission is limited to those themselves should write to the Director, will be held at the United States individuals possessing a valid Office of Freedom of Information, Merchant Marine Academy (USMMA), identification card or individuals under Privacy and Classification Review Kings Point, NY. Proposals for proper escort. All records containing (address above). demonstrating technology should be personal information are maintained in sent to the USCG Research and secured file cabinets or in restricted RECORD SOURCE CATEGORIES: Development Center (Environmental areas, access to which is limited to Safety Branch), 1082 Shennecossett authorized personnel and authorized These records contain information Road, Groton, CT 06340. contractors of the Department of State. obtained directly from the individual FOR FURTHER INFORMATION CONTACT: Access to computerized files is who is the subject of these records; from LTJG Dan Frank, USCG Research and password-protected and under the attorneys/agents representing these Development Center, 1082 direct supervision of the system individuals; and from relatives; Shennecossett Road, Groton, CT 06340, manager. The system manager has the sponsors; members of Congress; U.S. telephone (203) 441–2761, facsimile capability of printing audit trails of government agencies; international (203) 441–2792. access from the computer media, organizations; and local sources at SUPPLEMENTARY INFORMATION: All thereby permitting regular and ad hoc posts. technologies proposed for monitoring of computer usage. demonstration must have been SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS researched and developed since August RETENTION AND DISPOSAL: OF THE ACT: 1990. Technology presentation Retention of these records varies Certain records contained within this proposals will be accepted in any of the depending upon the specific kind of system of records are exempted from 5 following areas: record involved. Files of closed cases U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (1) Improved designs and operational are retired or destroyed in accordance (H), and (I), and (f). See Department of practices for vessels, pipelines, and with published record schedules of the State Rules published in the Federal facilities; Department of State and as approved by Register. (2) Improved designs to prevent or the National Archives and Records mitigate tanker and barge spills; Administration. More specific [FR Doc. 95–18903 Filed 8–1–95; 8:45 am] (3) Improved systems for mechanical information may be obtained by writing BILLING CODE 4710±24±M recovery including containment, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39475 skimming, separation, storage, and an estimate of the amount of space ADDRESSES: The TSAC working groups collection; needed for the exhibit; booth-type and Committee will meet in Room 2415 (4) Improved systems for chemical exhibits are limited to an area of 10 feet at U.S. Coast Guard Headquarters, 2100 and biological cleanup; (wide), 10 feet (deep) and 8 feet (high). Second Street, S.W., Washington, DC (5) Improved spill management and If your technology requires an on-water 20593. information systems; demonstration, or more detailed (6) Technologies to protect public and information is needed, please contact FOR FURTHER INFORMATION CONTACT: responder safety and health; LTJG Frank for requirements. Assistant Executive Director, LTJG (7) Technologies to monitor exposure If your organization has several Patrick J. DeShon, Commandant (G– to oil and oil by-products; technologies, and the technologies relate MTH–4), U.S. Coast Guard, 2100 Second (8) Improved training for responders; to different topic areas, then a separate Street, S.W., Washington, DC 20593, (9) Methods to restore or rehabilitate proposal is required for each telephone (202) 267–2997. natural resources; technology. Presentation proposals that SUPPLEMENTARY INFORMATION: Notice of (10) Innovations in bioremediation are not in one of the listed topical areas this meeting is given pursuant to the technology; will be considered on a case-by-case (11) Innovations in Vessel Traffic basis. Federal Advisory Committee Act, 5 Systems; The Interagency Subcommittee for U.S.C. App. 2 1 et seq. The agenda for (12) Predictive models for fate, Port Demonstrations will review each the Committee meeting includes the transport and effects of oil discharges; proposal and select parties to participate following. (13) Methods to assess natural in the demonstration. The Interagency Work Group Reports resource damages; Subcommittee for Port Demonstrations (14) Ecologically sensitive area reserves the right of selection of exhibits (1) Licensing of towing vessel assessment, monitoring and evaluation; and their decisions will be final. Parties operators; (15) Collection of environmental whose proposals are accepted will be baseline data; (2) Radar training for towing vessel notified in writing. Upon acceptance, a operators; (16) Monitoring and evaluation of one-time fee of $600 is required for each long-term oil discharge effects; accepted proposal. This fee is required (3) Prevention Through People; (17) Application of geographic and by the USMMA Continuing Education (4) Towing gear standard for vessels vessel simulation models for Department and must be received by pushing ahead/towing alongside; contingency plan development and them no later than 1 October 1995. evaluation, and personnel training; (5) Distinguishing the marine (18) Oil pollution risk assessment; Dated: July 27, 1995. assistance and commercial towing (19) Improved methods for aerial Joseph J. Angelo, industries; surveillance, sensor analysis, and data Acting Chief, Office of Marine Safety, Security (6) Casualty Investigation QAT and Environmental Protection. transmission to responders; results; New Issues (20) Casual relationship of human [FR Doc. 95–19009 Filed 8–1–95; 8:45 am] (1) Adequacy of tug/barge navigation factors to accidents; BILLING CODE 4910±14±M (21) Oil spill response expert systems; lights; (22) Waterways management (2) Revision of Title Code of Federal [CGD 95±065] techniques; Regulations, marine investigation (23) Alternative countermeasures Towing Safety Advisory Committee regulations. (e.g., in situ burning); With advance notice, and at the (24) Vessel inspection and salvage; AGENCY: Coast Guard, DOT. discretion of the Chair, members of the (25) Spilled oil behavioral studies ACTION: Notice of meetings. (e.g., fate and effects); and public may present oral statements (26) Improved oil spill response SUMMARY: The Towing Safety Advisory during the meeting. Persons wishing to management practices and systems Committee (TSAC) and its working make oral representations should notify approaches. groups will meet to discuss various the TSAC Assistant Executive Director Each technology presentation issues relating to shallow-draft inland at (202) 267–2997 no later than August proposal must include the following and coastal waterway navigation and 23, 1995. Written materials may be information: towing safety. The agenda will include submitted for presentation to the (1) Submitter’s name, address, and working group reports, discussion of Committee any time; however, to ensure organization or company; various Coast Guard programs such as distribution to each Committee member, (2) A brief description of the Prevention Through People and 20 copies of the written material should technology to be demonstrated, Casualty Investigation and introduction be submitted to the Assistant Executive including the dates the technology was of the new Executive Director. The Director at the address listed in FOR researched and developed and placed meeting will be open to the Public. FURTHER INFORMATION CONTACT by into service or may be placed into DATES: Meetings of the TSAC working August 16, 1995 service; groups will be held on Tuesday, August (3) Identification of which of the 29, 1995. These meetings are scheduled Dated: July 27, 1995. topical areas relates to the to run from 9 a.m. to 4:30 p.m. The J.C. Card, demonstration. If your technology TSAC meeting will be held on Rear Admiral, U.S. Coast Guard, Chief, Office supports more than one topical area, the Wednesday, August 30, 1995, from 9 of Marine Safety, Security and Environmental primary area should be identified and a.m. to 1 p.m. Written material should Protection. comments made as to secondary areas be submitted by August 16, 1995, and [FR Doc. 95–19008 Filed 8–1–95; 8:45 am] the technology addresses; and persons wishing to make oral BILLING CODE 4910±14±M (4) Type of demonstration (e.g., presentations should notify the exhibit booth, outdoor static equipment Assistant Executive Director not later display or on-water demonstration) and than August 23, 1995. 39476 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Office of Commercial Space the launch would jeopardize public enumerated in the March 24, 1992 Transportation health and safety, safety of property, or Notice. any national security or foreign policy [Docket 50324] The METEOR Program interest of the United States (49 U.S.C. Under the METEOR Program, EER is Commercial Space Transportation; 70104(c)). The Office is the Secretary’s proposing to launch the METEOR Grant of Petition for Waiver of Safety designee for carrying out the reentry vehicle system to low earth orbit Criterion for METEOR Reentry Vehicle Department’s mandate under the statute. using its newly-developed Conestoga System OCST’s Payload Determination Process launch vehicle. The Conestoga will be AGENCY: Office of the Secretary; Office The Office’s approach to evaluating launched from NASA’s Wallops Flight of Commercial Space Transportation, the first commercial reentry vehicle Facility, Virginia. EER is currently DOT. system is described in two Notices authorized to launch the Conestoga ACTION: Notice. previously published in the Federal launch vehicle under License No. LLS Register (57 FR 10213–10216, published 94–030. The authorization to launch is SUMMARY: Pursuant to 49 U.S.C. Subtitle March 24, 1992; and 57 FR 55021, conditional upon issuance by the Office IX, ch. 701, formerly the Commercial published November 23, 1992). Under of final mission approval, including a Space Launch Act of 1984, as amended, that approach, the applicant or operator favorable payload determination, for the and the Department of Transportation of the reentry vehicle system is required METEOR reentry vehicle system. The METEOR Program is similar to licensing regulations, the Department of to apply for and obtain a favorable COMET. EER is proposing to launch Transportation (the Department) has payload determination, consisting of: (i) METEOR to a 40.5 degree inclination been evaluating a proposed commercial A vehicle safety approval (VSA), low earth orbit (approximately 250 reentry vehicle system as part of the first whereby the applicant demonstrates application for a license to place a nautical miles) where it will remain on that its integrated system is capable of orbit for approximately 30 days for long reentry vehicle into space. EER Systems being operated safely, and (ii) an Corporation, the operator of the duration microgravity experiments. operations review approval (ORA), Upon command from EER ground proposed reentry vehicle system, has whereby the operator demonstrates its petitioned the Department for relief personnel, the reentering portion of the capability to operate the system safely. system (the reentry vehicle) will from the first of three safety criteria Both approvals (VSA and ORA) are against which its vehicle is being separate from the service module, its necessary to obtain a favorable payload retromotor will activate, and the reentry assessed. The Department has determination. determined to waive the accuracy and vehicle will reenter along a ballistic The first Notice set forth the three reliability criterion in light of the trajectory to a designated landing site on criteria against which the COMET applicant’s proposed operations and earth. The reentry vehicle is smaller (COMmercial Experiment Transporter) that doing so will not jeopardize public than the Mercury capsules used to reentry vehicle system would be safety. This notice sets forth the basis return astronauts to earth in the early assessed for purposes of obtaining a for the Department’s determination to years of the manned space program, VSA. The latter Notice set forth the grant the petition. weighs about 730 pounds and is roughly Office’s intent to issue a single license three feet high by 52 inches in diameter FOR FURTHER INFORMATION CONTACT: authorizing the launch into space of the at its widest point. The reentry vehicle Ronald K. Gress, Deputy Associate COMET reentry vehicle system, subject is unguided; however, its ability to land Director for Licensing and Safety, Office to, among other things, a favorable within the designated site is affected by of Commercial Space Transportation, payload determination for the reentry several factors determined immediately U.S. Department of Transportation, 400 vehicle system. Although the three preceding initiation of reentry, Seventh Street SW., Washington, DC criteria enumerated by the Office in the including pointing accuracy, timing of 20590 (202) 366–2929. first Notice were developed in response the retroburn, and duration of the SUPPLEMENTARY INFORMATION: to the COMET Program, which has since retroburn. Upon descent, a parachute is been discontinued, they are equally released to assure a soft landing. The Background applicable to the pending application service module will remain on orbit and The Department of Transportation’s for METEOR.1 continue to support microgravity (the Department) Office of Commercial EER Systems Corporation (EER) is experiments for approximately 130 days Space Transportation (Office) is proposing to operate and reenter the or more. The service module’s orbit will evaluating the first commercial reentry METEOR reentry vehicle system and eventually decay and it will reenter the vehicle system, known as METEOR has applied to the Office for a payload earth’s atmosphere, burning up during (Multiple Experiment to Earth Orbit and determination. By letter dated May 1, reentry and presenting no greater risk to Return), to determine whether it may be 1995, EER petitioned the Office public safety than other reentering launched into space. The Office is requesting relief from the probability of orbital debris. conducting its review as part of the accuracy criterion (Criterion 1) In a significant departure from the Department’s responsibility to license COMET Program, EER’s proposal and otherwise regulate commercial 1 The COMET Program, as originally designates an oceanic landing site, space launch activities under 49 U.S.C. administered, was suspended in May 1994, when whereas the COMET proposal had Subtitle IX, ch. 701—’’Commercial NASA determined not to augment a grant to the designated the Utah Test and Training Space Launch Activities,’’ formerly the Center for Space Transportation and Applied Range, a 24 x 51 mile U.S. Government Research (CSTAR), which was responsible for Commercial Space Launch Act of 1984, procuring the COMET mission. Nearly a year later, facility located in a sparsely populated as amended. Under 49 U.S.C. Subtitle EER Systems Corporation (EER), one of the original area of Utah. EER is proposing to reenter IX, ch. 701, the Department has broad participants in the COMET Program, advised the the METEOR reentry vehicle in the authority to determine whether the Office that it had taken over the COMET Program Atlantic Ocean and has designated as its and would be responsible for the entire program, launch of an otherwise unlicensed including the reentry. The spacecraft, originally landing site an area that is 18.4 nautical payload, such as a reentry vehicle developed by Space Industries, Inc., as part of the miles wide and 87.1 nautical miles long, system, should be prevented because COMET Program, has been renamed METEOR. centered around a targeted mid-point Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39477 approximately 85 miles off the coast of in the event of a system error or failure intentional reentry and the criteria do Virginia. that causes a deviation from the not apply.2 Thus, the Office considers vehicle’s planned trajectory. only those system failures or nominal Vehicle Safety Approval Criteria • Criterion 3 is intended to limit risks system variations that may occur during The three criteria enumerated in the to the general public to ensure it, too, the course of a ‘‘human-induced’’ or March 24, 1992 Notice for the first faces no additional risk beyond ordinary intentional reentry in assessing COMET mission, and now METEOR, all background risk as a result of METEOR’s ability to meet Criteria 1, 2 of which would have to be satisfied commercial reentry activities. Criterion and 3. under the Notice, are as follows: 3 addresses the risks posed by an 1. The probability of the reentry essentially random reentry as a result of Petition to Waive Criterion 1 vehicle landing outside the designated a major system failure during the EER’s petition requesting relief from landing site shall not be greater than reentry process. Criterion 1 is based, in part, on its three in one thousand missions. • As stated in the March 24, 1992 misunderstanding of performance-based 2. The additional risks to the public Notice, the criteria acknowledge that criteria. In establishing performance- in the immediate vicinity of the landing some hazards, and therefore risks based criteria for COMET, the Office site (i.e., the area within 100 miles of accompany the proposed reentry stated its belief that, unlike design the designated landing site) shall not activity. The criteria reflect those standards, ‘‘performance-based criteria exceed the normal background risks to hazards reduced to acceptable levels of allow the maximum flexibility in which those individuals would risk. Through the criteria, the Office has developing a safe and cost-effective ordinarily be exposed but for the reentry established a level of acceptability product. The Office further believes that missions. This normal background risk comparable to that employed in other performance-based criteria enhance the is characterized as: the probability of safety regulatory regimes, such as those public interest by encouraging any casualty occurring within the 100- administered by the Environmental innovation and technology mile zone shall not exceed one in a Protection Agency, and consistent with development. This environment million on an annual basis. In addition, risk thresholds utilized by Federal promotes safe space transportation the probability of any casualty occurring launch ranges as part of range safety. services at lower cost and helps assure within the zone shall not exceed one in Since early 1992, when the criteria that customers’ needs are addressed.’’ a million for a single mission. addressing the COMET Program (57 FR 10213, 10215) 3. The additional risks to the general proposal were established, the design of In its petition, EER asserts, among public beyond the 100-mile zone around the reentry vehicle system and the other things, the difficulty of using the designated landing site, and to proposal to reenter it have evolved and performance-based standards to property on orbit, shall not exceed matured. These developments have demonstrate reliability in the absence of normal background risks to which the allowed the Office to assess specific flight performance history. EER further public would ordinarily be exposed but aspects of reentry risks and their impact maintains that satisfying Criteria 2 and for the reentry missions. This normal on public safety with greater clarity. 3, without Criterion 1, would be background risk is characterized as: the The three criteria are intended to sufficient to ensure that public safety is probability of any casualty occurring address the risks to public safety that not compromised. EER suggests that shall not exceed one in a million on an result from a human-induced reentry. Criterion 1 affords no additional annual basis. In addition, the For the majority of its mission, the risks protection to the public beyond that probability of any casualty occurring in presented by the METEOR reentry provided by satisfying Criteria 2 and 3. the area that is both outside of the vehicle system are the same as those Although the Office disagrees with designated landing site and the 100-mile presented by other space payloads. It is EER’s characterization of performance- zone around the site shall not exceed the fact that the METEOR reentry based standards, the Office has one in a million for a single mission. vehicle is operated so as to land at a evaluated whether Criterion 1 may be The March 24, 1992 Notice also designated landing site and designed to waived for the METEOR reentry mission provides supporting rationale for the withstand the stress of reentry that without jeopardizing public safety. The criteria and explains their separate but raises the potential of risk to public Office undertook this evaluation interrelated safety objectives generally safety. Accordingly, in evaluating because it is consistent with the as follows: whether METEOR satisfies the criteria, • Criterion 1 is intended to assure the Office considers only human- Department’s statutory mandate to issue reliable, accurate, incident-free reentry induced or intentional reentries. The a favorable payload determination operations in order to foster public Office has determined that a human- allowing METEOR to be launched for its acceptance of commercial space induced reentry occurs when reentry is intended reentry mission if the Office transportation and minimize public intentionally initiated upon command finds that the proposed mission can be exposure to risk. Criterion 1 assumes from ground personnel and the vehicle conducted without jeopardizing public nominal pre-reentry operations returns to earth within one orbit. The safety and U.S. national interests. conditions and addresses factors that Office believes that there should be a affect accuracy after reentry is initiated. direct relationship between initiating 2 Even if an operator attempts an intentional reentry, it may fail for a number of reasons. In its petition, EER has requested that reentry and the reentry event itself for METEOR includes a number of built-in fail-safe OCST waive this criterion. it to be considered human-induced or systems that automatically terminate the reentry • Criterion 2 is intended to limit risks intentional. If the vehicle does not sequence if certain conditions that would cause an to the population that believes it may be reenter upon command within one inaccurate or otherwise unsafe reentry are detected. In addition, a system required for reentry to proceed more exposed to hazards resulting from orbit, the direct relationship is broken could fail, leaving the reentry vehicle on orbit for commercial reentry operations because and the vehicle remains on orbit as any more than one orbit. In both instances, there has not of their proximity to the designated other payload. A malfunctioning vehicle been a human-induced reentry and the spacecraft landing site and to ensure they face no that remains on orbit and then reenters assumes a status essentially equivalent to other objects left in space. In the Office’s assessment of greater risk from commercial reentry the atmosphere as a result of orbital the vehicle, neither of these failure scenarios are operations than ordinary background decay or other intervening events has considered in determining whether the criteria have risk. Criterion 2 becomes most relevant not completed a human-induced or been met. 39478 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices In conducting its evaluation, the because it contains little mass, no trace is over ocean. Moreover, the areas Office considered the relationship hazardous materials, or both; or of the United States in which the between accuracy (Criterion 1) and • If it can be shown that risk reentry vehicle could land are relatively public safety. While accuracy mitigation measures (e.g., public notices sparsely populated and, based on contributes significantly to assuring or warnings, emergency response plans) dispersion, vehicle break-up and other public safety and is important to can be implemented to limit the risk to risk analyses, the Office found that risk developing public and consumer exposed populations to acceptable to public safety would remain within confidence, the Office considered levels in the event the vehicle misses the threshold of normal background risk whether there are circumstances in the designated landing site. identified in Criterion 3. which intentional reentry can occur and To determine whether any of these A gross failure that causes the vehicle public safety is assured without the circumstances will exist for METEOR, to remain on orbit for more than one demonstrated level of accuracy required the Office analyzed a broad range of orbit after the intended reentry need not by Criterion 1. Next, the Office failure scenarios that may occur when a be considered under the vehicle safety considered whether these circumstances human-induced or intentional reentry criteria. Nevertheless, the Office would, in fact, occur in carrying out the occurs. In conducting risk scenario evaluated the risks associated with a METEOR reentry mission. Finally, the analyses, the Office used a conservative gross failure and determined that risk to Office considered whether, if Criterion 1 approach in that it did not consider the public safety still would remain well is waived, additional measures are mitigating effects of a parachute system within the threshold of normal appropriate to ensure that public safety built into the reentry vehicle to soften background risk identified in Criterion is protected. landing impacts. 3. In fact, the Office determined that an The Office has determined that there In the event of a minor system error intact reentry module that impacted on are circumstances in which the or failure, such as one that alters the earth or the reentering debris from the relationship of reentry vehicle accuracy aerodynamic characteristics of the reentry of the entire vehicle system (the to public safety becomes less significant. vehicle as it descends, the Office reentry vehicle joined to the service The three criteria were developed to determined that the dispersion area or module) would be smaller than, and have a mutually reinforcing effect on ‘‘footprint’’ within which the vehicle therefore pose less risk than, the debris public safety. Although their objectives would be expected to land would most believed to survive the reentry of large are interrelated, they were designed so likely be enlarged, shifted, or both. The abandoned satellites or spent upper that Criterion 1 can compensate if the vehicle would still land in the general stages of Titan, Atlas, and Delta launch ability of the reentry vehicle system to vicinity of the landing site, that is, vehicles. meet Criteria 2 and 3 is marginal, and within the 100-mile zone. Given EER’s Accordingly, the Office has vice versa. Stated another way, the designated landing site in the Atlantic determined that there are circumstances probability of a casualty is, among other Ocean, the 100-mile zone around the in which intentional reentry of things, a function of the probability of designated landing site is principally METEOR can occur and public safety missing the landing site. Other ocean area or some sparsely populated will be assured without the contributing factors include the size and land areas. Based on dispersion, vehicle demonstrated level of accuracy required mass of the vehicle upon impact, its break-up and other risk analyses, the under Criterion 1, and that these contents, and the population Office determined that risk to public circumstances do, in fact, exist for distribution in the area where the safety would remain well within the METEOR. There are well-defined areas vehicle could impact if it missed the threshold of normal background risk within which the reentry vehicle is most designated landing site. For example, if identified in Criterion 2. likely to land if it misses the designated a reentry vehicle is extremely small and In the event of a major system failure landing site. The risk to the population contains no hazardous materials, the which causes a random reentry, such as within these areas falls within probability of a casualty during a severe misalignment of the vehicle acceptable limits. The small size and reentry would be quite low, even if the during retroburn resulting in mass of the reentry vehicle and the lack vehicle had little probability of landing insufficient thrust to deorbit along the of hazardous materials on the vehicle in the designated site. However, the desired trajectory, the Office determined would minimize the potential risk to probability of a casualty could be high that the only population placed at risk public safety if it misses the designated if that vehicle were quite large, would be those persons residing along landing site. Moreover, under certain contained explosives or hazardous the orbital path, or ground trace, of the failure scenarios, the reentry vehicle materials, or if the vehicle was likely to final orbit. This area occupies a swath would break up and reenter in small bits impact in a densely populated area if it approximately 20 miles wide and of debris, much of which would likely missed the designated landing site. extending approximately 3,000 miles burn up as it passes through the Thus, under certain conditions, it may beyond the designated landing site. The atmosphere. be possible to relax or eliminate an area is so limited because of the limited The Office has concluded that, in accuracy criterion if the risk to public cross-range capability of the vehicle. light of the performance characteristics safety remains within acceptable levels. Because of the inclination of the orbit of the METEOR reentry vehicle, the They are as follows: and the designated landing site, most of proposed mission including an oceanic • If it can be shown that there are this ground trace is over uninhabited landing, the small size of the reentry well-defined areas within which the broad ocean. The effect of alignment or vehicle and the absence of hazardous vehicle is most likely to land if it misses burn errors increases very rapidly with materials on the reentry vehicle, public the designated landing site, and that the the magnitude of the error, so that if the safety and U.S. national interests would risk to the population within these areas METEOR reentry vehicle travels beyond not be jeopardized if the landing is within acceptable limits; 3,000 miles from the intended landing accuracy (Criterion 1) is waived. • If it can be shown that the vehicle, site it will remain in space for more However, as a condition of the waiver, if it misses the designated landing site, than one orbit. Although the ground the Office is requiring that EER is unlikely to survive rentry or is likely trace includes some areas of the United implement a public information to reenter in a condition that presents States, the likelihood of landing on land communications plan under which the little risk to exposed populations is small, given that most of the ground affected public would be informed of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39479 the reentry activity, including the Minority Business Resource Center by SUPPLEMENTARY INFORMATION: estimated time and location. EER must 4:00 p.m. on Thursday, September 7, Background also have in place an emergency 1995. Information pertaining to the response plan whereby local officials meeting may be obtained from Mrs. The proposed AC 20–XX provides may be notified in the event of an off- Marie A. Hendricks, Office of Small and information and guidance to persons site landing and vehicle recovery can be Disadvantaged Business Utilization, 400 involved in the construction of amateur- conducted effectively. 7th Street, S.W., Washington, D.C. built aircraft, the manufacturer of kits In addition, NASA’s Wallops Flight 20590, telephone (202) 366–1930 or designed to be assembled into aircraft Facility has agreed to provide range (800) 532–1169. Any member of the by amateur-builders, builders of aircraft safety support for the reentry which public may present a written statement fabricated from plans for certification as includes coordination, through to the Committee at any time. amateur-built, and persons providing appropriate Federal agencies, of notices assistance to amateur-builders. Issued in Washington, D.C. on July 27, to air and marine traffic in the vicinity 1995. Comments Invited of the designated landing site to minimize risks during the reentry. Luz A. Hopewell Interested persons are invited to Accordingly, the Office has Director Office of Small and Disadvantaged comment on the proposed AC 20–XX determined that, for METEOR, Criterion Business Utilization. listed in this notice by submitting such 1 may be waived and the relief [FR Doc. 95–18910 Filed 8–1–95; 8:45 am] written data, views, or arguments as requested in EER’s petition is granted.3 BILLING CODE 4910±62±P they desire to the aforementioned specified address. All communications Issued in Washington, DC, this 28th day of July, 1995. received on or before the closing date for comments specified above will Frank C. Weaver, Federal Aviation Administration considered by the Director, Aircraft Director, Office of Commercial Space Proposed Advisory Circular 20±XX, Certification Service, before issuing the Transportation. Commercial Assistance During final AC. [FR Doc. 95–18997 Filed 7–28–95; 3:05 pm] Construction of Amateur-Built Aircraft Comments received on the proposed BILLING CODE 4910±62±U AC 20–XX may be examined before and AGENCY: Federal Aviation after the comment closing date in Room Administration (FAA), DOT. Office of the Secretary 815, FAA headquarters building (FOB– ACTION: Notice. 10A), 800 Independence Avenue SW., Minority Business Resource Center Washington, DC 20591, between 8:30 a.m. and 4:30 p.m. Advisoty Committee; Meeting SUMMARY: This notice announces the availability of proposed Advisory Issued in Washington, DC, on July 27, Pursuant to section 10(a)(2) of the 1995. Federal Advisory Committee Act (Pub. Circular (AC) 20–XX, Commercial Michael Gallagher, L. 92–463; 5 U.S.C. App. 1), notice is Assistance During Construction of hereby given of a meeting of the Amateur-Built Aircraft, for review and Manager, Production & Airworthiness Certification Division. Minority Business Resource Center comments. The proposed AC 20–XX Advisory Committee to be held Monday, provides information and guidelines [FR Doc. 95–18916 Filed 8–1–95; 8:45 am] September 11, 1995, from 2:00–4:00 developed by the FAA, the BILLING CODE 4910±13±M p.m. at the Department of Experimental Aircraft Association Transportation, 400 7th Street, S.W., (EAA), and industry regarding the Flight Service Station at Watertown Conference Room 8236–8240, applicability of commercial assistance Regional Airport Watertown, South Washington, D.C. 20590. The agenda for in the construction or partial Dakota the meeting is as follows: construction of amateur-built aircraft, —Financial Programs with emphasis on kit aircraft. AGENCY: Federal Aviation —Outreach DATE: Comments submitted must Administration (FAA), DOT. —Certification identify the proposed AC 20–XX, ACTION: Notice of closing. —Procurement Opportunities project number, 95–005, and be received —Affirmative Action Issues by September 1, 1995. SUMMARY: Notice is hereby given that on Attendance is open to the interested or about July 10, 1995, the Flight ADDRESSES: public but limited to the space Copies of the proposed AC Service Station (FSS) at Watertown, available. With the approval of the 20–XX can be obtained from and South Dakota will be permanently Chairman, members of the public may comments may be returned to the closed. Services to the aviation public in present oral statements at the meeting. following: Federal Aviation the Watertown flight plan area, formerly Persons wishing to attend and persons Administration, Aircraft Certification provided by Watertown FSS, are being wishing to present oral statements Service, Production and Airworthiness provided by the Automated Flight should notify the Office of Small and Certification Division, AIR–200, 800 Service Station (AFSS) at Huron, South Disadvantaged Business Utilization, Independence Avenue SW., Dakota. This information will be Washington, DC 20591. reflected in the FAA organization 3 At the time the COMET Program was FOR FURTHER INFORMATION CONTACT: statement the next time it is reissued. suspended, a petition submitted by Space George McNeill, AIR–230, Production (Sec. 313 (a), 72 Stat. 752; 49 U.S.C. Industries, Inc., as applicant for a payload 1354.) determination, was pending. No final action was and Airworthiness Certification taken in light of the decision to discontinue the Division, Room 815, Aircraft William C. Withycombe, COMET Program. In granting the petition for Certification Service, Federal Aviation Acting Regional Administration, Great Lakes METEOR, the Office has made no determination as Region. to whether doing so would have been appropriate Administration, 800 Independence for COMET or any other reentry vehicle system or Avenue SW., Washington, DC 20591, [FR Doc. 95–18912 Filed 8–1–95; 8:45 am] mission. (202) 267–8361. BILLING CODE 4910±13±M 39480 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices Federal Aviation Administration RTCA, U.S.C. 1177(h)(4)(B)), we hereby DATES: The exemption granted by this Inc.; Technical Management determine and announce that the notice is effective beginning with the Committee applicable rate of interest on the amount (confidential) model year. of additional tax attributable to any FOR FURTHER INFORMATION CONTACT: Ms Pursuant to section 10(a)(2) of the nonqualified withdrawals from a Capital Barbara Gray, Office of Market Federal Advisory Committee Act (P.L. Construction Fund established under Incentives, NHTSA, 400 Seventh Street, 92–463, 5 U.S.C., Appendix 2), notice is Section 607 of the Act shall be 7.18 S.W., Washington, D.C. 20590. Ms hereby given for the RTCA Technical percent, with respect to nonqualified Gray’s telephone number is (202) 366– Management Committee meeting to be withdrawals made in the taxable year 1740. Her fax number is (202) 493–2739. held August 21, 1995, starting at 9:00 beginning in 1995. The determination of SUPPLEMENTARY INFORMATION: In a letter a.m. The meeting will be held at RTCA, the applicable rate of interest with Inc., 1140 Connecticut Avenue, N.W., dated April 28, 1995, Nissan North respect to nonqualified withdrawals was America, Inc., an American subsidiary Suite 1020, Washington, DC, 20036. computed, according to the joint The agenda will include: (1) of Nissan Motor Company, Ltd., a regulations issued under the Act (46 Chairman’s Remarks; (2) Review and Japanese corporation, requested CFR 391.7(e)(2)(ii)), by multiplying Approval of Summary of the Previous exemption from the parts-marking eight percent by the ratio which (a) the Meeting; (3) Action on Open Items from requirements of the theft prevention average yield on 5-year Treasury Previous Meetings: Report of Ad Hoc standard for a motor vehicle line. The securities for the calendar year Group for Systems Issues; Plan for nameplate of the line and the model immediately preceding the beginning of Better Coordination in the Aviation year of introduction are confidential. such taxable year bears to (b) the Community Among RTCA, ICAO, The letter requested an exemption from average yield on 5-year Treasury EUROCAE, and Other Activities; parts-marking pursuant to 49 CFR Part securities for the calendar year 1970. Recommendations to Resolve Data Link 543, Exemption from Vehicle Theft The applicable rate so determined was Air Traffic Services Communication Prevention Standard, based on the computed to the nearest one-hundredth (ATSC) Recording Requirements Issues; installation of an antitheft device as of one percent. standard equipment for the entire line. Ohio University Letter Regarding So Ordered By: Maritime Certification of GPS-Based Systems; (4) In a May 8, 1995, telephone Administrator, Maritime conversation with NHTSA officials, Other Business; and (5) Date and Place Administration; Administrator, National of Next Meeting. Nissan clarified the scope of its petition. Oceanic and Atmospheric Nissan’s April 28 letter and Attendance is open to the interested Administration; Assistant Secretary for public but limited to space availability. information provided in the May 8 Tax Policy, Department of the Treasury. telephone conversation, together With the approval of the chairman, Dated: July 27, 1995. constitute a complete petition, as members of the public may present oral A.J. Herberger, required by 49 CFR Part 543.7, in that statements at the meeting. Persons Maritime Administrator. it met the general requirements wishing to present statements or obtain D. James Baker, contained in § 543.5 and the specific information should contact the RTCA Administrator, National Oceanic and Secretariat, 1140 Connecticut Avenue Atmospheric Administration. content requirements of § 543.6. In a NW., Suite 1020, Washington, D.C. Leslie Samuals, letter dated May 24, 1995, to Nissan, the 20036; (202) 833–9339 (phone) or (202) Assistant Secretary for Tax Policy. agency granted the petitioner’s request 833–9434 (fax). Members of the public [FR Doc. 95–19026 Filed 8–1–95; 8:45 am] for confidential treatment of most aspects of its petition, including the may present a written statement to the BILLING CODE 4910±81±P committee at any time. nameplate of the line and the model year of its introduction. Issued in Washington, D.C., on July 27, In its petition, Nissan provided a 1995. DEPARTMENT OF TRANSPORTATION detailed description and diagrams of the Janice L. Peters, identity, design, and location of the Designated Official. National Highway Traffic Safety Administration components of the antitheft device for [FR Doc. 95–18913 Filed 8–1–95; 8:45 am] the new line. This antitheft device BILLING CODE 4810±13±M Petition for Exemption From the includes an engine starter interrupt Vehicle Theft Prevention Standard; function and an alarm function. The Nissan antitheft device is activated by removing DEPARTMENT OF TRANSPORTATION the ignition key and locking the doors AGENCY: National Highway Traffic with it. The alarm monitors the doors, Maritime Administration Safety Administration (NHTSA), hood, battery terminals and circuitry, Department of Transportation (DOT). and engine starter circuit. DEPARTMENT OF COMMERCE ACTION: Grant of petition for exemption. In order to ensure the reliability and National Oceanic and Atmospheric SUMMARY: This notice grants in full the durability of the device, Nissan stated Administration petition of Nissan North America, Inc., that it conducted tests, based on its own (Nissan) for an exemption of a high-theft specified standards. Nissan provided a DEPARTMENT OF THE TREASURY line (whose nameplate is confidential) detailed list of the tests conducted. from the parts-marking requirements of Nissan stated its belief that the device Internal Revenue Service the vehicle theft prevention standard. is reliable and durable since the device Applicable Rate of Interest on This petition is granted because the complied with Nissan’s specified Nonqualified Withdrawals From a agency has determined that the antitheft requirements for each test. Capital Construction Fund device to be placed on the line as Nissan compared the device proposed standard equipment is likely to be as for its new line with devices which Under the authority in Section effective in reducing and deterring NHTSA has determined to be as 607(h)(4)(B) of the Merchant Marine motor vehicle theft as compliance with effective in reducing and deterring Act, 1936, as amended (the Act, 46 the parts-marking requirements. motor vehicle theft as would Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39481 compliance with the parts-marking unauthorized entrants; and ensuring the [Docket No. 95±44; Notice 2] requirements. reliability and durability of the device. Decision That Nonconforming 1989 Nissan has concluded that the As required by 49 U.S.C. 33106 and Honda Civic DX Hatchback Passenger antitheft device proposed for its new 49 CFR Part 543.6 (a)(4) and (5), the Cars Are Eligible for Importation line is no less effective than those agency finds that Nissan has provided devices in the lines for which NHTSA adequate reasons for its belief that the AGENCY: National Highway Traffic has already granted exemptions from antitheft device will reduce and deter Safety Administration (NHTSA), DOT. the parts-marking requirements. Nissan theft. This conclusion is based on the ACTION: Notice of decision by NHTSA bases its belief on reduced theft rates of information Nissan provided about its that nonconforming 1989 Honda Civic the 300ZX, Maxima, and Infiniti Q45 car device, much of which is confidential. DX Hatchback passenger cars are lines. Nissan stated that the 300ZX has This confidential information included eligible for importation. been equipped with an antitheft device a description of reliability and SUMMARY: This notice announces the since the model designation was functional tests conducted by Nissan for decision by NHTSA that 1989 Honda changed from 280ZX in July 1983. The the antitheft device and its components. Civic DX Hatchback passenger cars not company asserts that the thefts of the For the foregoing reasons, the agency 300ZX has dropped significantly for that originally manufactured to comply with hereby grants in full Nissan’s petition all applicable Federal motor vehicle line, resulting in a 51 percent decrease for exemption for the line from the for the MY 1984 theft rates and a 42 safety standards are eligible for parts-marking requirements of 49 CFR importation into the United States percent drop for the MY 1985 rates as Part 541. compared to the MY 1983 rates (thefts because they are substantially similar to If Nissan decides not to use the a vehicle originally manufactured for per 1,000 produced). Nissan believes exemption for this line, it should that the reduction of theft rates for the importation into and sale in the United formally notify the agency. If such a States and certified by its manufacturer 300ZX are primarily attributable to the decision is made, the line must be fully antitheft systems installed. Since the as complying with the safety standards marked according to the requirements (the U.S.-certified version of the 1989 vehicle line that is the subject of this under 49 CFR parts 541.5 and 541.6 petition will be equipped with a similar Honda Civic DX Hatchback), and they (marking of major component parts and are capable of being readily altered to system as the 300ZX, Nissan expects replacement parts). that the antitheft system of the vehicle conform to the standards. NHTSA notes that if Nissan wishes in DATE: This decision is effective as of the line for which it now seeks an the future to modify the device on exemption will also be as effective in date of its publication in the Federal which this exemption is based, the Register. reducing and deterring theft. company may have to submit a petition FOR FURTHER INFORMATION CONTACT: Additionally, Nissan provided theft to modify the exemption. Part 543.7(d) George Entwistle, Office of Vehicle experience for the Maxima and Q45 states that a part 543 exemption applies Safety Compliance, NHTSA (202–366– vehicle lines. The 1985 through 1994 only to vehicles that belong to a line 5306). MY Nissan Maxima has been equipped exempted under this part and equipped with a device similar to that which is with the antitheft device on which the SUPPLEMENTARY INFORMATION: planned for the line that is the subject line’s exemption is based. Further, Background of this petition. The antitheft device has § 543.9(c)(2) provides for the submission been installed on the Maxima since it of petitions ‘‘to modify an exemption to Under 49 U.S.C. 30141(a)(1)(A) was revised from the Model 810 Sedan permit the use of an antitheft device (formerly section 108(c)(3)(A)(i) of the in October 1984. Nissan’s petition similar to but differing from the one National Traffic and Motor Vehicle indicated that a 47% decrease in theft specified in that exemption.’’ The Safety Act (the Act)), a motor vehicle occurred for the 1985 Maxima as agency wishes to minimize the that was not originally manufactured to compared to the MY 1984 Model 810 administrative burden which conform to all applicable Federal motor Sedan. Nissan also stated that the § 543.9(c)(2) could place on exempted vehicle safety standards shall be refused Infiniti Model Q45 theft rates indicates vehicle manufacturers and itself. admission into the United States unless that the system’s design is effective. The agency did not intend in drafting NHTSA has decided that the motor Based on the 1990–91 MY theft data, the Part 543 to require the submission of a vehicle is substantially similar to a Infiniti Model Q45 theft rate is 2.1522 modification petition for every change motor vehicle originally manufactured per 1,000 vehicles, which Nissan asserts to the components or design of an for importation into and sale in the is significantly below the median rate antitheft device. The significance of United States, certified under 49 U.S.C. for those calendar years. many such changes could be de 30115 (formerly section 114 of the Act), Based on the evidence submitted by minimis. Therefore, NHTSA suggests and of the same model year as the Nissan, the agency believes that the that if the manufacturer contemplates model of the motor vehicle to be antitheft device for the new Nissan line making any changes the effects of which compared, and is capable of being is likely to be as effective in reducing might be characterized as de minimis, it readily altered to conform to all and deterring motor vehicle theft as should consult the agency before applicable Federal motor vehicle safety compliance with the parts-marking preparing and submitting a petition to standards. requirements of the theft prevention modify. Petitions for eligibility decisions may standards (49 CFR Part 541). be submitted by either manufacturers or The agency believes that the device Authority: 49 U.S.C. 33106; delegation of importers who have registered with will provide the types of performance authority at 49 CFR 1.50 NHTSA pursuant to 49 CFR part 592. As listed in 49 CFR Part 543.6(a)(3): Issued on: July 22, 1995. specified in 49 CFR 593.7, NHTSA Promoting activation; attracting Barry Felrice, publishes notice in the Federal Register attention to unauthorized entries; Associate Administrator for Safety of each petition that it receives, and preventing defeat or circumvention of Performance Standards. affords interested persons an the device by unauthorized persons; [FR Doc. 95–19023 Filed 8–1–95; 8:45 am] opportunity to comment on the petition. preventing operation of the vehicle by BILLING CODE 4910±59±P At the close of the comment period, 39482 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices NHTSA decides, on the basis of the Bristol VRT buses are eligible for for importation. The agency then petition and any comments that it has importation. publishes this determination in the received, whether the vehicle is eligible SUMMARY: This notice announces the Federal Register. for importation. The agency then decision by NHTSA that 1972 through Double Decker Bus Company of publishes this decision in the Federal 1976 Bristol VRT buses are not Denver, Colorado (Registered Importer Register. originally manufactured to comply with No. R–93–015) petitioned NHTSA to J.K. Motors, Inc. of Kingsville, all applicable Federal motor vehicle decide whether 1972 through 1976 Maryland (Registered Importer R–90– safety standards are eligible for Bristol VRT buses are eligible for 006) petitioned NHTSA to decide importation into the United States importation into the United States. whether 1989 Honda Civic DX because they have safety features that NHTSA published notice of the petition Hatchback passenger cars are eligible for comply with, or are capable of being on June 1, 1995 (60 FR 28648) to afford importation into the United States. altered to comply with, all such an opportunity for public comment. The NHTSA published notice of the petition standards. reader is referred to that notice for a on May 30, 1995 (60 FR 28201) to afford DATE: The decision is effective as of the thorough description of the petition. No an opportunity for public comment. The date of its publication in the Federal comments were received in response to reader is referred to that notice for a Register. the notice. Based on its review of the thorough description of the petition. No FOR FURTHER INFORMATION CONTACT: information submitted by the petitioner, comments were received in response to George Entwistle, Office of Vehicle NHTSA has decided to grant the the notice. Based on its review of the Safety Compliance, NHTSA (202–366– petition. information submitted by the petitioner, 5306). Vehicle Eligibility Number for Subject NHTSA has decided to grant the Vehicles petition. SUPPLEMENTARY INFORMATION: Background The importer of a vehicle admissible Vehicle Eligibility Number for Subject under any final determination must Under 49 U.S.C. 30141(a)(1)(A) Vehicles indicate on the form HS–7 (formerly section 108(c)(3)(A)(i)(I) of the accompanying entry the appropriate The importer of a vehicle admissible National Traffic and Motor Vehicle vehicle eligibility number indicating under any final decision must indicate Safety Act (the Act)), a motor vehicle that the vehicle is eligible for entry. on the form HS–7 accompanying entry that was not originally manufactured to VCP–10 is the vehicle eligibility number the appropriate vehicle eligibility conform to all applicable Federal motor assigned to vehicles admissible under number indicating that the vehicle is vehicle safety standards shall be refused this determination. eligible for entry. VSP–128 is the admission into the United States unless vehicle eligibility number assigned to NHTSA has decided that the motor Final Decision vehicles admissible under this decision. vehicle is substantially similar to a Accordingly, on the basis of the Final Decision motor vehicle originally manufactured foregoing, NHTSA hereby decides that for importation into and sale in the Accordingly, on the basis of the 1972 through 1976 Bristol VRT buses United States, certified under 49 U.S.C. foregoing, NHTSA hereby decides that a are eligible for importation into the § 30115 (formerly section 114 of the 1989 Honda Civic DX Hatchback not United States because they have safety Act), and of the same model year as the originally manufactured to comply with features that comply with, or are model of the motor vehicle to be all applicable Federal motor vehicle capable of being altered to comply with, compared and is capable of being safety standards is substantially similar all applicable Federal motor vehicle readily altered to conform to all to a 1989 Honda Civic DX Hatchback safety standards. applicable Federal motor vehicle safety originally manufactured for importation standards. Where there is no Authority: 49 U.S.C. 30141(a)(1)(B) and into and sale in the United States and substantially similar U.S.—certified (b)(1); 49 CFR 593.8; delegations of authority certified under 49 U.S.C. § 30115, and is at 49 CFR 1.50 and 501.8. motor vehicle, 49 U.S.C. 30141(a)(1)(B) capable of being readily altered to (formerly section 108(c)(3)(A)(i)(II) of Issued on: July 27, 1995. conform to all applicable Federal motor the Act, 15 U.S.C. 1397(c)(3)(A)(i)(II)) Marilynne Jacobs, vehicle safety standards. permits a nonconforming motor vehicle Director, Office of Vehicle Safety Compliance. Authority: 49 U.S.C. 30141 (a)(1)(A) and to be admitted into the United States if [FR Doc. 95–19020 Filed 8–1–95; 8:45 am] (b)(1); 49 CFR 593.8; delegations of authority its safety features comply with, or are BILLING CODE 4910±59±M at 49 CFR 1.50 and 501.8. capable of being altered to comply with, Issued on: July 27, 1995. all applicable Federal motor vehicle Marilynne Jacobs, safety standards based on destructive [Docket No. 95±60; Notice 1] Director, Office of Vehicle Safety Compliance. test data or such other evidence as Notice of Receipt of Petition for [FR Doc. 95–19019 Filed 8–1–95; 8:45 am] NHTSA decides to be adequate. Decision That Nonconforming 1994 Petitions for eligibility decisions may BILLING CODE 4910±59±M and 1995 BMW 730i Passenger Cars be submitted by either manufacturers or Are Eligible for Importation importers who have registered with [Docket No. 95±46; Notice 2] NHTSA pursuant to 49 CFR part 592. As AGENCY: National Highway Traffic specified in 49 CFR 593.7, NHTSA Safety Administration, DOT. Decision That Nonconforming 1972 publishes notice in the Federal Register ACTION: Notice of receipt of petition for Through 1976 Bristol VRT Buses Are of each petition that it receives, and decision that nonconforming 1994 and Eligible for Importation affords interested persons an 1995 BMW 730i passenger cars are opportunity to comment on the petition. eligible for importation. AGENCY: National Highway Traffic At the close of the comment period, Safety Administration (NHTSA), DOT. NHTSA decides, on the basis of the SUMMARY: This notice announces receipt ACTION: Notice of decision by NHTSA petition and any comments that it has by the National Highway Traffic Safety that nonconforming 1972 through 1976 received, whether the vehicle is eligible Administration (NHTSA) of a petition Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39483 for a decision that 1994 and 1995 BMW (Registered Imported 90–007) has odometer from kilometers to miles per 730i passenger cars that were not petitioned NHTSA to decide whether hour. originally manufactured to comply with 1994 and 1995 BMW 730i passenger Standard No. 109 Lamps, Reflective all applicable Federal motor vehicle cars are eligible for importation into the Devices and Associated Equipment: (a) safety standards are eligible for United States. The vehicles which G&K installation of U.S.-model headlamp importation into the United States believes are substantially similar are assemblies and front sidemakers; (b) because (1) they are substantially 1994 and 1995 BMW 740i passenger installation of U.S.-model taillamp similar to vehicles that were originally cars that were manufactured for assemblies which incorporate rear manufactured for importation into and importation into, and sale in, the United sidemarkers; (c) installation of a high sale in the United States and that were States and certified by their mounted stop lamp. certified by their manufacturer as manufacturer, Bayerische Motoren- Standard No. 110 Tire Selection and complying with the safety standards, Werke, A.G., as conforming to all Rims: installation of a tire information and (2) they are capable of being readily applicable Federal motor vehicle safety placard. altered to conform to the standards. standards. Standard No. 111 Rearview Mirror: DATES: The closing date for comments The petitioner claims that it carefully replacement of the passenger side on the petition is September 1, 1995. compared 1994 and 1995 BMW 730i rearview mirror with a U.S.-model ADDRESSES: Comments should refer to passenger cars to 1994 and 1995 BMW component. the docket number and notice number, 740i passenger cars, and found the Standard No. 114 Theft Protection: and be submitted to: Docket Section, vehicles to be substantially similar with installation of a warning buzzer Room 5109, National Highway Traffic respect to compliance with most Federal microswitch and a warning buzzer in Safety Administration, 400 Seventh St., motor vehicle safety standards. the steering lock assembly. SW, Washington, DC 20590. [Docket G&K submitted information with its Standard No. 115 Vehicle hours are from 9:30 am to 4 pm.] petition intended to demonstrate that Identification Number: installation of a 1994 and 1995 BMW 730i passenger VIN plate that can be read from outside FOR FURTHER INFORMATION CONTACT: cars, as originally manufactured, the left windshield pillar, and a VIN George Entwistle, Office of Vehicle conform to many Federal motor vehicle reference label on the edge of the door Safety Compliance, NHTSA (202–366– safety standards in the same manner as or latch post nearest the driver. 5306). their 1994 and 1995 BMW 740i Standard No. 118 Power Window SUPPLEMENTARY INFORMATION: passenger cars, or are capable of being Systems: rewiring of the power window readily altered to conform to those system so that the window transport is Background standards. inoperative when the ignition is Under 49 U.S.C. 30141(a)(1)(A) Specifically, the petitioner claims that switched off. (formerly section 108(c)(3)(A)(i)(I) of the 1994 and 1995 BMW 730i passenger Standard No. 208 Occupant Crash National Traffic and Motor Vehicle cars are identical to 1994 and 1995 Protection: installation of a seat belt Safety Act (the Act)), a motor vehicle BMW 740i passenger cars with respect warning buzzer. The petitioner states that was not originally manufactured to to compliance with Standard Nos. 102 that in conformity with the standard, conform to all applicable Federal motor Transmission Shift Lever Sequence some of the subject vehicles vehicle safety standards shall be refused * * *, 103 Defrosting and Defogging manufactured before September 1993 admission into the United States unless Systems, 104 Windshield Wiping and may be equipped with only driver’s side NHTSA has decided that the motor Washing Systems, 105 Hydraulic Brake air bags and knee bolsters, but that all vehicle is substantially similar to a Systems, 106 Brake Hoses, 107 such vehicles manufactured after motor vehicle originally manufactured Reflecting Surfaces, 109 New Pneumatic September 1993 are so equipped on for importation into and sale in the Tires, 113 Hood Latch Systems, 116 both the driver’s and the passenger’s United States, certified under 49 U.S.C. Brake Fluid, 124 Accelerator Control side. The petitioner also states that the 30115 (formerly section 114 of the Act), Systems, 201 Occupant Protection in vehicles are equipped with Type 2 seat and of the same model year as the Interior Impact, 202 Head Restraints, belts in the front and rear outboard model of the motor vehicle to be 204 Steering Control Rearward seating positions, and with a Type 1 seat compared, and is capable of being Displacement, 205 Glazing Materials, belt in the rear center seating position. readily altered to conform to all 206 Door Locks and Door Retention Standard No. 214 Side Impact applicable Federal motor vehicle safety Components, 207 Seating Systems, 209 Protection: installation of reinforcing standards. Seat Belt Assemblies, 210 Seat Belt beams. Petitions for eligibility decisions may Assembly Anchorages, 211 Wheel Nuts, Standard No. 301 Fuel System be submitted by either manufacturers or Wheel Discs and Hubcaps, 212 Integrity: installation of a rollover valve importers who have registered with Windshield Retention, 216 Roof Crush in the fuel tank vent line between the NHTSA pursuant to 49 CFR part 592. As Resistance, 219 Windshield Zone fuel tank and the evaporative emissions specified in 49 CFR 593.7, NHTSA Intrusion, and 302 Flammability of collection canister. publishes notice in the Federal Register Interior Materials. Additionally, the petitioner states that of each petition that it receives, and Petitioner also contends that 1994 and the bumpers on 1994 and 1995 BMW affords interested persons an 1995 BMW 730i passenger cars are 730i passenger cars must be reinforced opportunity to comment on the petition. capable of being readily altered to meet to comply with the Bumper Standard At the close of the comment period, the following standards, in the manner found in 49 CFR Part 581. NHTSA decides, on the basis of the indicated: Interested persons are invited to petition and any comments that it has Standard No. 101 Controls and submit comments on the petition received, whether the vehicle is eligible Displays: (a)( substitution of a lens described above. Comments should refer for importation. The agency then marked ‘‘Brake’’ for a lens with an ECE to the docket number and be submitted publishes this decision in the Federal symbol on the brake failure indicator to: Docket Section, National Highway Register. lamp; (b) installation of the appropriate Traffic Safety Administration, Room G&K Automotive Conversion, Inc. of symbol on the seat belt warning lamp; 5109, 400 Seventh Street, S.W., Santa Ana, California (‘‘G&K’’) (c) recalibration of the speedometer/ Washington, DC 20590. It is requested 39484 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices but not required that 10 copies be George Entwistle, Office of Vehicle compliance with most Federal motor submitted. Safety Compliance, NHTSA (202–366– vehicle safety standards. All comments received before the 5306). G&K submitted information with its close of business on the closing date petition intended to demonstrate that SUPPLEMENTARY INFORMATION: indicated above will be considered, and non-U.S. certified 1993 Mercedes-Benz will be available for examination in the Background 600SL and 1994 and 1995 Mercedes- docket at the above address both before Benz SL600 passenger cars, as originally Under 49 U.S.C. 30141(a)(1)(A) and after that date. To the extent manufactured, conform to many Federal (formerly section 108(c)(3)(A)(i)(I) of the possible, comments filed after the motor vehicle safety standards in the National Traffic and Motor Vehicle closing date will also be considered. same manner as their U.S. certified Safety Act (the Act)), a motor vehicle Notice of final action on the petition counterparts, or are capable of being that was not originally manufactured to will be published in the Federal readily altered to conform to those conform to all applicable Federal motor Register pursuant to the authority standards. vehicle safety standards shall be refused indicated below. Specifically, the petitioner claims that admission into the United States unless non-U.S. certified 1993 Mercedes-Benz Authority: 49 U.S.C. 30141(a)(1)(A) and NHTSA has decided that the motor 600SL and 1994 and 1995 Mercedes- (b)(1); 49 CFR 593.8; delegations of authority vehicle is substantially similar to a at 49 CFR 1.50 and 501.8. Benz SL600 passenger cars are identical motor vehicle originally manufactured to their U.S. certified counterparts with Issued on: July 27, 1995. for importation into and sale in the respect to compliance with Standards Marilynne Jacobs, United States, certified under 49 U.S.C. Nos. 102 Transmission Shift Lever Director, Office of Vehicle Safety Compliance. 30115 (formerly section 114 of the Act), Sequence * * * ., 103 Defrosting and [FR Doc. 95–19021 Filed 8–1–95; 8:45 am] and of the same model year as the Defogging Systems, 104 Windshield BILLING CODE 4910±59±M model of the motor vehicle to be Wiping and Washing Systems, 105 compared, and is capable of being Hydraulic Brake Systems, 106 Brake readily altered to conform to all Hoses, 107 Reflecting Surface,s 109 New [Docket No. 95±59; Notice 1] applicable Federal motor vehicle safety Pneumatic Tires, 113 Hood Latch standards. Notice of Receipt of Petition for Systems, 116 Brake Fluid, 124 Decision That Nonconforming 1993 Petitions for eligibility decisions may Accelerator Control Systems, 201 Mercedes-Benz 600SL and 1994 and be submitted by either manufacturers or Occupant Protection in Interior Impact, 1995 Mercedes-Benz SL600 Passenger importers who have registered with 202 Head Restraints, 204 Steering Cars Are Eligible for Importation NHTSA pursuant to 49 CFR Part 592. As Control Rearward Displacement, 205 specified in 49 CFR 593.7, NHTSA Glazing Materials, 206 Door Locks and AGENCY: National Highway Traffic publishes notice in the Federal Register Door Retention Components, 207 Safety Administration, DOT. of each petition that it receives, and Seating Systems, 209 Seat Belt ACTION: Notice of receipt of petition for affords interested persons an Assemblies, 210 Seat Belt Assembly decision that nonconforming 1993 opportunity to comment on the petition. Anchorages, 211 Wheel Nuts, Wheel Mercedes-Benz 600SL and 1994 and At the close of the comment period, Discs and Hubcaps, 212 Windshiled 1995 Mercedes-Benz SL600 passenger NHTSA decides, on the basis of the Retention, 216 Roof Crush Resistance, cars are eligible for importation. petition and any comments that it has 219 Windshield Zone Intrusion, and 302 received, whether the vehicle is eligible Flammability of Interior Materials. SUMMARY: This notice announces receipt for importation. The agency then Petitioner also contends that non-U.S. by the National Highway Traffic Safety publishes this decision in the Federal certified 1993 Mercedes-Benz 600SL Administration (NHTSA) of a petition Register. and 1994 and 1995 Mercedes-Benz SL600 passenger cars are capable of for a decision that 1993 Mercedes-Benz G&K Automotive Conversion, Inc. of being readily altered to meet the 600SL and 1994 and 1995 Mercedes- Santa Ana, California (‘‘G&K’’) following standards, in the manner Benz SL600 passenger cars that are not (Registered Importer 90–007) has indicated: originally manufactured to comply with petitioned NHTSA to decide whether Standard No. 101 Controls and all applicable Federal motor vehicle 1993 Mercedes-Benz 600SL and 1994 Displays: (a) substitution of a lens safety standards are eligible for and 1995 Mercedes-Benz SL600 (Model marked ‘‘Brake’’ for a lens with an ECE importation into the United States ID 129.076) passenger cars are eligible symbol on the brake failure indicator because (1) they are substantially for importation into the United States. lamp; (b) installation of the appropriate similar to vehicles that were originally The vehicles which G&K believes are symbol on the seat belt warning lamp; manufactured for importation into and substantially similar are the 1993 (c) recalibration of the speedometer/ sale in the United States and that were Mercedes-Benz 600SL and 1994 and odometer from kilometers to miles per certified by their manufacturer as 1995 Mercedes-Benz SL600 passenger complying with the safety standards, hour. cars that were manufactured for Standard No. 108 Lamps, Reflective and (2) they are capable of being readily importation into, and sale in, the United altered to conform to the standards. Devices and Associated Equipment: (a) States and certified by their installation of U.S.-model headlamp DATES: The closing date for comments manufacturer, Daimler-Benz, A.G., as on the petition is September 1, 1995. assemblies and front sidemarkers; (b) conforming to all applicable Federal installation of U.S.-model taillamp ADDRESSES: Comments should refer to motor vehicle safety standards. assemblies which incorporate rear the docket number and notice number, The petitioner claims that it carefully sidemarkers; (c) installation of a high and be submitted to: Docket Section, compared non-U.S. certified 1993 mounted stop lamp. Room 5109, National Highway Traffic Mercedes-Benz 600SL and 1994 and Standard No. 110 Tire Selection and Safety Administration, 400 Seventh St., 1995 Mercedes-Benz SL600 passenger Rims: installation of a tire information SW, Washington, DC 20590. [Docket cars to their U.S. certified counterparts, placard. hours are from 9:30 am to 4 pm.] and found the vehicles to be Standard No. 111 Rearview Mirror: FOR FURTHER INFORMATION CONTACT: substantially similar with respect to replacement of the passenger side Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices 39485 rearview mirror with a U.S.-model closing date will also be considered. Jon M. Gaaserud—Director, U.S. Saudi component. Notice of final action on the petition Arabian Joint Commission Program Standard No. 114 Theft Protection: will be published in the Federal Office installation of a warning buzzer Register pursuant to the authority Geraldine A. Gerardi—Director for microswitch and a warning buzzer in indicated below. Business Taxation the steering lock assembly. Authority: 49 U.S.C. 30141(a)(1)(A) and William H. Gillers—Director, Office of Standard No. 115 Vehicle (b)(1); 49 CFR 593.8; delegations of authority Management Advisory Services Identification Number: installation of a at 49 CFR 1.50 and 501.8. Robert F. Gillingham—Deputy Assistant VIN plate that can be read from outside Issued on: July 27, 1995. Secretary (Policy Coordination) the left windshield pillar, and a VIN Marilynne Jacobs, W. Scott Gould—Deputy Assistant reference label on the edge of the door Director, Office of Vehicle Safety Compliance. Secretary Departmental Finance and or latch post nearest the driver. Management Standard No. 118 Power Window [FR Doc. 95–19022 Filed 8–1–95; 8:45 am] John D. Hawke—Under Secretary for Systems: rewiring of the power window BILLING CODE 4910±59±M Domestic Finance system so that the window transport is Edward S. Knight—General Counsel inoperative when the ignition is switched off. DEPARTMENT OF THE TREASURY David Lipton—Deputy Assistant Standard No. 208 Occupant Crash Secretary (Eastern European and Performance Review Board Protection: installation of a seat belt Former Soviet Union Policy) warning buzzer. The petitioner states AGENCY: Department of the Treasury. Joan Logue-Kinder—Assistant Secretary (Public Affairs) that in conformity with the standard, ACTION: Notice. some of the subject vehicles Fe Morales Marks—Deputy Assistant manufactured before September 1993 SUMMARY: This notice lists the Secretary (Financial Institutions may be equipped with only driver’s side membership to the Departmental Policy) air bags and knee bolsters, but that all Offices’ Performance Review Board George Mun˜ oz—Assistant Secretary such vehicles manufactured after (PRB) and supersedes the list published (Management and Chief Financial September 1993 are so equipped on in 59 FR 142 dated July 26, 1994, in Officer) both the driver’s and the passenger’s accordance with 5 U.S.C. 4314(c)(4). Gerald Murphy—Fiscal Assistant side. The petitioner also states that the The purpose of the PRB is to review the Secretary vehicles are equipped with Type 2 seat performance of members of the Senior Ronald K. Noble—Under Secretary belts in both front outboard seating Executive Service and make (Enforcement) positions. recommendations regarding Jill K. Ouseley—Director, Office of Standard No. 214 Side Impact performance ratings, performance Market Finance Protection: installation of reinforcing awards, and other personnel actions. Linda Robertson—Assistant Secretary beams. The names and title of the PRB (Legislative Affairs) Standard No. 301 Fuel System members are as follows: Alex Rodriguez—Deputy Assistant Integrity: installation of a rollover valve Joan Affleck-Smith—Director, Office of Secretary (Administration) in the fuel tank vent line between the Financial Institutions Policy Victor Rojas—Deputy Assistant fuel tank and the evaporative emissions John J. Auten—Director, Office of Secretary for Legislative Affairs collection canister. Financial Analysis (Banking & Finance) William E. Barreda—Deputy Assistant Additionally, the petitioner states that Leslie Samuels—Assistant Secretary Secretary (Trade and Investment the bumpers on non-U.S. certified 1993 (Tax Policy) Mercedes-Benz 600SL and 1994 and Policy) Ralph L. Bayrer—Director, Office of Howard Schloss—Deputy Assistant 1995 Mercedes-Benz SL600 passenger Secretary for Public Affairs cars must be reinforced to comply with Synthetic Fuels Charles Schotta—Deputy Assistant the Bumper Standard found in 49 CFR Cynthia Beerbower—Deputy Assistant Secretary (Middle East & Energy Part 581. Secretary (Tax Policy) Policy) Interested persons are invited to Darcy E. Bradbury—Deputy Assistant G. Dale Seward—Director, Automated submit comments on the petition Secretary for Federal Finance Richard S. Carnell—Assistant Secretary Systems Division described above. Comments should refer (Financial Institutions) Jeffrey Shafer—Assistant Secretary to the docket number and be submitted Joyce H. Carrier—Deputy Executive to: Docket Section, National Highway (International Affairs) Secretary (Public Liaison) Sylvia Mathews—Chief of Staff Traffic Safety Administration, Room Mary E. Chaves—Director, Office of 5109, 400 Seventh Street, SW., Jane L. Sullivan—Director, Office of International Debt Policy Information Resources Management Washington, DC 20590. It is requested Wushow Chou—Deputy Assistant Lawrence H. Summers—Under but not required that 10 copies be Secretary (Information Systems) submitted. Anna Dickey—Director, Office of Secretary for International Affairs All comments received before the Enforcement Budget Policy Mozelle Thompson—Deputy Assistant close of business on the closing date Lowell Dworin—Director, Office of Tax Secretary (Government Financial indicated above will be considered, and Analysis Policy) will be available for examination in the James H. Fall, III—Deputy Assistant Edwin A. Verburg—Director, Financial docket at the above address both before Secretary (Developing Nations) Services Directorate and after that date. To the extent James J. Flyzik—Director, Office of Robert Welch—Director, Office of possible, comments filed after the Telecommunications Management Procurement 39486 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Notices FOR FURTHER INFORMATION CONTACT: Rosemary Downing, Executive Secretary, PRB, Room 1318, Main Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. Telephone: (202) 622–1440. This notice does not meet the Department’s criteria for significant regulations. George Mun˜ oz, Assistant Secretary of the Treasury (Management). [FR Doc. 95–18948 Filed 8–1–95; 8:45 am] BILLING CODE 4810±25±Mfy 39487 Sunshine Act Meetings Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 This section of the FEDERAL REGISTER CONTACT PERSON FOR MORE INFORMATION: 5. Transfer of Membership and Sale of contains notices of meetings published under Jean A. Webb, 202–254–6314. Advances. 6. Membership. the ``Government in the Sunshine Act'' (Pub. Jean A. Webb, L. 94-409) 5 U.S.C. 552b(e)(3). 7. Interpretation of Financial Management Secretary of the Commission. Policy. [FR Doc. 95–19083 Filed 7–31–95; 11:07 am] 8. Federal Home Loan Bank of Dallas’ COMMODITY FUTURES TRADING COMMISSION BILLING CODE 6351±01±M Special Investment Authority. TIME AND DATE: 11:00 a.m., Friday, PORTIONS CLOSED TO THE PUBLIC: The August 4, 1995. COMMODITY FUTURES TRADING COMMISSION Board will consider the following: PLACE: 2033 K St. N.W., Washington, TIME AND DATE: 11:00 a.m., Friday, 1. Federal Home Loan Bank of Dallas: D.C. 8th Floor Hearing Room. August 25, 1995. Affordable Housing Program Project, Tunica STATUS: Closed. Courts, L.P., Tunica, Mississippi. PLACE: 2033 K St. NW., Washington, DC 2. Ineligible Use of AHP Funds—Federal MATTERS TO BE CONSIDERED: Surveillance 8th Floor Hearing Room. Home Loan Bank of New York. Matters. STATUS: Closed. The above matter is exempt under CONTACT PERSON FOR MORE INFORMATION: MATTERS TO BE CONSIDERED: Surveillance Jean A. Webb, 202–254–6314. section 552b(c)8 of title 5 of the United Matters. States Code. Jean A. Webb, CONTACT PERSON FOR MORE INFORMATION: CONTACT PERSON FOR MORE INFORMATION: Secretary of the Commission. Jean A. Webb, 202–254–6314. [FR Doc. 95–19082 Filed 7–31–95; 11:07 am] Elaine L. Baker, Secretary to the Board, Jean A. Webb, (202) 408–2837. BILLING CODE 6351±01±M Secretary of the Commission. Rita I. Fair, [FR Doc. 95–19085 Filed 7–31–95; 11:07 am] Managing Director. COMMODITY FUTURES TRADING COMMISSION BILLING CODE 6351±01±M [FR Doc. 95–19069 Filed 7–28–95; 5:00 pm] TIME AND DATE: 11:00 a.m., Friday, BILLING CODE 6725±01±M August 18, 1995. FEDERAL HOUSING FINANCE BOARD PLACE : 2033 K St. NW., Washington, DC TIME AND DATE: 9 a.m., Wednesday, FEDERAL HOUSING FINANCE BOARD 8th Floor Hearing Room. August 9, 1995. ``FEDERAL REGISTER'' CITATION OF STATUS: Closed. PLACE: Board Room Second Floor, PREVIOUS ANNOUNCEMENT: 60 FR 37499, MATTERS TO BE CONSIDERED: Surveillance Federal Housing Finance Board, 1777 F July 20, 1995. Matters. Street, NW., Washington, DC 20006. PREVIOUSLY ANNOUNCED TIME AND DATE OF CONTACT PERSON FOR MORE INFORMATION: STATUS: Part of this meeting will be THE MEETING: 9:00 a.m., Thursday, July Jean A.Webb, 202–254–6314. closed to the public. The rest of the 27, 1995. Jean A. Webb, meeting will be open to the public. CHANGE IN THE MEETING: The following Secretary of the Commission. MATTERS TO BE CONSIDERED: topic was added to the agenda during [FR Doc. 95–19084 Filed 7–31–95; 11:07 am] PORTIONS OPEN TO THE PUBLIC: The Board the open meeting. BILLING CODE 6351±01±M will consider the following: • Revised 1995 Affordable Housing 1. Federal Home Loan Bank Resales with Program Priority for the Federal Home Loan COMMODITY FUTURES TRADING COMMISSION Members. Bank of Atlanta. 2. Adoption of Final Rule Regarding TIME AND DATE: 11:00 a.m., Friday, Procedures for FHLBank Access to CONTACT PERSON FOR MORE INFORMATION: August 11, 1995. Nonpublic Information of Federal Financial Elaine L. Baker, Executive Secretary to PLACE: 2033 K St. NW., Washington, DC Regulatory Agencies. the Board, (202) 408–2837. 8th Floor Hearing Room. 3. Federal Home Loan Bank of San Rita I. Fair, Francisco’s Request for Additional AHP STATUS: Closed. Funds for Neighborhood Housing Services. Managing Director. MATTERS TO BE CONSIDERED: Surveillance 4. FHLBank Presidents’ Compensation [FR Doc. 95–19052 Filed 7–28–95; 5:00 pm] Matters. Plan. BILLING CODE 6725±01±M federal register August 2,1995 Wednesday Rate Risk;FinalRuleandProposed Risk-Based CapitalStandards;Interest 12 CFRPart325 Corporation Federal DepositInsurance 12 CFRPart208 Federal ReserveSystem 12 CFRPart3 Office oftheComptrollerCurrency Department oftheTreasury Part II 39489 39490 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations DEPARTMENT OF THE TREASURY National Bank Examiner (202/874– earnings, impaired liquidity and capital 5070), Office of the Chief National Bank positions, and, ultimately, may Office of the Comptroller of the Examiner; Michael Carhill, Financial jeopardize its solvency. Currency Economist, Risk Analysis Division (202/ Section 305 of FDICIA, Pub. L. 102– 874–5700); and Ronald Shimabukuro, 242 (12 U.S.C. 1828 note), requires the 12 CFR Part 3 Senior Attorney, Legislative and banking agencies to revise their risk- [Docket No. 95±17] Regulatory Activities Division (202/ based capital guidelines to take 874–5090), Office of the Comptroller of adequate account of interest rate risk. FEDERAL RESERVE SYSTEM the Currency, 250 E Street SW., Section 305 of FDICIA also requires the Washington, DC 20219. banking agencies to publish final 12 CFR Part 208 Board of Governors: James Houpt, implementing regulations by June 19, [Docket No. R±0802] Assistant Director (202/452–3358), 1993, and to establish transition rules to William F. Treacy, Supervisory facilitate compliance with those FEDERAL DEPOSIT INSURANCE Financial Analyst (202/452–3859), regulations. CORPORATION Division of Banking Supervision and The banking agencies have not met Regulation; Gregory Baer, Managing the June 19, 1993, statutory date for 12 CFR Part 325 Senior Counsel (202/452–3236), Legal publishing a final rule for this section of Division, Board of Governors of the FDICIA. This delay reflects the difficult RIN 3064±AB22 Federal Reserve System. For the hearing tradeoffs the banking agencies have faced in developing and implementing a Risk-Based Capital Standards: Interest impaired only, Telecommunication rule that provides a sufficiently accurate Rate Risk Device for the Deaf (TDD), Dorothea Thompson (202/452–3544), Board of basis for estimating banks’ interest rate AGENCIES: Office of the Comptroller of Governors of the Federal Reserve risk exposures and their need for the Currency (OCC), Treasury; Board of System, 20th and C Streets NW., capital, yet maintains enough Governors of the Federal Reserve Washington, DC 20551. transparency and simplicity to allow System (Board); and Federal Deposit FDIC: William A. Stark, Assistant bank management to readily determine Insurance Corporation (FDIC). Director (202/898–6972) or Phillip J. their regulatory capital requirements. ACTION: Final rule. Bond, Senior Capital Markets Specialist The banking agencies also are mindful (202/898–3519), Division of of the need to avoid unnecessary SUMMARY: The OCC, the Board, and the Supervision, Federal Deposit Insurance regulatory burdens associated with this FDIC (collectively referred to as the Corporation, 550 17th Street NW., rule, consistent with Section 335 of the banking agencies) are issuing this final Washington, DC 20429. Reigle Community Development and rule to implement the portion of Section Regulatory Improvement Act of 1994, SUPPLEMENTARY INFORMATION: 305 of the Federal Deposit Insurance Pub. L. 103–325 (12 U.S.C. 1828 note). Corporation Improvement Act of 1991 I. Background II. September 1993 Proposal (FDICIA) that requires the banking Interest rate risk is the exposure of a agencies to revise their risk-based bank’s current and future earnings and A. Proposal capital standards to ensure that those equity capital arising from adverse In September 1993, the banking standards take adequate account of movements in interest rates. This risk agencies issued a proposed rule that interest rate risk. This final rule amends results from the possibility that changes solicited comments on a framework for the capital standards to specify that the in interest rates may have an adverse measuring banks’ interest rate risk banking agencies will include, in their impact on a bank’s earnings and its exposures and determining the amount evaluations of a bank’s capital underlying economic value. Changes in of capital needed by a bank to account adequacy, an assessment of the interest rates affect a bank’s earnings by for interest rate risk. See 58 FR 48206 exposure to declines in the economic changing its net interest income and the (September 14, 1993). value of the bank’s capital due to level of other interest-sensitive income The framework outlined by the changes in interest rates. and operating expenses. The underlying banking agencies in the September 1993 Concurrent with the publication of economic value of the bank’s assets, proposed rule incorporated the use of a this final rule, the banking agencies are liabilities, and off-balance sheet items three-level measurement process to issuing for comment, a joint policy also are affected by changes in interest evaluate banks’ interest rate risk statement that describes the process the rates. These changes occur because the exposures. The first measure was a banking agencies will use to measure present value of future cash flows, and quantitative screen, based on existing and assess the exposure of a bank’s net in some cases the cash flows Consolidated Report of Condition and economic value to changes in interest themselves, change when interest rates Income (Call Report) information, that rates. After the banking agencies and change. The combined effects of the would exempt potential low risk banks banking industry gain sufficient changes in these present values reflect from additional reporting requirements. experience with the proposed the change in the underlying economic The exemption screen was based on two measurement process, the banking value of the bank’s capital as well as criteria: (1) the amount of a bank’s off- agencies intend, through a subsequent provide an indicator of the expected balance sheet interest rate contracts in rulemaking process, to issue a proposed change in the bank’s future earnings relation to its total assets, and (2) the rule that would establish an explicit arising from the change in interest rates. relation between a bank’s fixed- and capital charge for interest rate risk that Interest rate risk is inherent in the role floating-rate loans and securities that will be based upon the level of a bank’s of banks as financial intermediaries. mature or reprice beyond five years and measured interest rate risk exposure. Interest rate risk, however, introduces its total capital. EFFECTIVE DATE: September 1, 1995. volatility to bank earnings and to the Banks not meeting the proposed FOR FURTHER INFORMATION CONTACT: economic value of the bank. A bank that exemption test would have been OCC: Christina Benson, Capital has an excessive level of interest rate required to calculate their economic Markets Specialist, or Lisa Lintecum, risk can face diminished future exposure by either: (1) a supervisory Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39491 model that measured the change in the See 57 FR 35507 (August 10, 1992). In assessing the effect of those rate changes economic value of the bank for a particular, most commenters expressed on positions that have option specified change in interest rates; or (2) strong support for using the results of characteristics. In addition, an economic the bank’s own interest rate risk model, banks’ own interest rate risk models to value perspective offers important provided that the model was deemed determine their levels of exposure and insights into the effect of changing adequate by examiners for the nature corresponding need for capital. interest rates on the liquidity of a bank’s and scope of the bank’s activities and Commenters noted the potential assets. that it measured the bank’s economic inaccuracies of standardized regulatory Many commenters also raised exposure using the interest rate models, such as the proposed common concerns about various scenarios specified by the banking supervisory model, as one reason for elements of the measurement process agencies. allowing the use of internal models. outlined in the September 1993 The September 1993 proposed rule Internal models, they believed, would proposed rule. Most commenters believe also sought comment on two alternative better capture the unique characteristics that the proposed treatment of non- methods for determining the amount of of individual bank portfolios. Many maturity deposits understate their capital a bank may need for interest rate commenters also stated that permitting effective maturity. Others raised risk. Both approaches proposed to focus the use of internal models would concerns about the accuracy of the supervisory attention and need for provide banks with incentives to proposed supervisory model and the capital on those banks whose measured improve their internal risk measurement appropriateness of the proposed exposure exceeded a proposed systems. exemption test criteria. The supervisory threshold level.1 One The vast majority of commenters also measurement system, proposed in method (Minimum Capital Standard) urged the banking agencies to adopt a today’s joint policy statement, includes proposed to establish an explicit ‘‘Risk Assessment’’ approach for a discussion of these comments and minimum capital standard for interest determining capital adequacy. Among incorporates a number of changes to the rate risk. This approach would have the reasons cited for this approach were September 1993 proposed rule in relied on the results of either the concerns about the accuracy of the response to commenters’ concerns. proposed supervisory model and the supervisory model or banks’ own III. Final Rule and Two-Step Process need to consider qualitative factors, models and would have required banks for Establishing Minimum Capital such as the quality of a bank’s risk to have capital sufficient to cover the Standards amount by which their measured management process and its ability to exposure exceeded a supervisory respond to changing market conditions, After careful consideration of all the threshold level. The second approach in evaluating capital. Many commenters comments, the banking agencies have (Risk Assessment) proposed to use believed that by considering such decided to implement minimum capital model results as one of several factors factors, the banking agencies would standards for interest rate risk exposures that examiners would consider when reward banks that have superior risk in a two-step process. determining a bank’s capital needs for management capabilities. This final rule implements the first interest rate risk. Under this approach, Some commenters believed that the step of that process by revising the a bank’s need for capital would be banking agencies’ primary focus when capital standards of the banking determined on a case-by-case basis as evaluating the level of a bank’s interest agencies to explicitly include a bank’s part of each banking agency’s rate risk exposure should be on the exposure to declines in the economic examination process. In determining the exposure of the bank’s near-term (one- value of its capital due to changes in need for capital, examiners would to two-year) reported earnings, rather interest rates as a factor that the banking consider the quality of the bank’s than on its exposure to economic value. agencies will consider in evaluating a 2 interest rate risk management, internal While recognizing the importance of bank’s capital adequacy. This final rule controls and the overall financial understanding the degree to which a does not codify a measurement condition of the bank. Banks that had bank’s reported earnings are vulnerable framework for assessing the level of a measured exposures in excess of the to changing interest rates, the banking bank’s interest rate risk exposure. The agencies have concluded that the supervisory threshold and weak interest information and exposure estimates economic value perspective more rate risk management systems would collected through a new proposed effectively identifies the risks that the generally be required to hold additional supervisory measurement process, bank’s current business activities pose capital for interest rate risk. described in the banking agencies’ joint to its financial condition, its longer-term policy statement on interest rate risk, B. Comments earnings and solvency, and hence the would be one quantitative factor used The banking agencies collectively adequacy of its capital levels. Economic by examiners to determine the adequacy received a total of 133 comments on the value measures the effect of a change in of an individual bank’s capital for September 1993 proposed rule. The interest rates on the value of all future interest rate risk. The focus of that majority of commenters were banks. cash flows generated by a bank’s current proposed process is on a bank’s Thrifts, trade associations, bank financial instruments, not just those that economic value exposure. Other consultants, other government- affect earnings over the next few months quantitative factors that examiners will sponsored agencies and other regulators or quarters. Indeed, an earnings analysis consider include the bank’s historical also commented. The majority of provides information only on positions financial performance and its earnings commenters responded favorably to repricing within the forecast horizon, exposure to interest rate movements. modifications that the banking agencies and thus would not take account of the Examiners also will consider qualitative made from the earlier advance notice of full magnitude of risk. As a result, the proposed rulemaking published in the effect of embedded and explicit options 2 The exposure of a bank’s economic value is Federal Register on August 10, 1992. can be significantly understated by such generally the change in the present value of its an analysis. In contrast, an economic assets, less the change in the present value of its liabilities, plus the change in the value of its 1 A threshold level representing a decline in value perspective captures the effect of interest rate off-balance-sheet contracts. It economic value equal to 1.0 percent of assets was changing interest rates for all time represents the change in the underlying economic proposed by the banking agencies. periods, and offers a superior vehicle for value of the bank’s capital. 39492 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations factors, including the adequacy of the interest rate risk exposures. This VI. OCC Response to Unfunded bank’s internal interest rate risk experience and information will assist Mandates Act of 1995 management. Consistent with each the banking agencies in formulating a banking agency’s safety and soundness proposed rule for explicit minimum Section 202 of the Unfunded guidelines, the banking agencies expect capital standards for interest rate risk. Mandates Act of 1995 (Unfunded a bank to properly manage all of its Second 305(b)(2) of FDICIA requires Mandates Act) (signed into law on risks, including its interest rate risk, in the banking agencies to discuss the March 22, 1995) requires that an agency a manner commensurate with its risk development of comparable standards prepare a budgetary impact statement profile. Nothing in this rule is intended with members of the supervisory before promulgating a rule that includes to diminish the importance or need for committee of the Bank for International a Federal mandate that may result in the a bank to have an effective risk Settlements (BIS). The Basle Committee expenditure by state, local, and tribal management system. on Banking Supervision, under the governments, in the aggregate, or by the This final rule represents the banking auspices of the BIS, has been working private sector, of $100 million or more agencies’ adoption of the Risk on ways to incorporate interest rate risk in any one year. If a budgetary impact Assessment approach described in the into the Basle Accord on risk-based statement is required, section 205 of the September 1993 proposed rule with the capital standards. See International Unfunded Mandates Act also requires exception that, unlike that proposed Convergence of Capital Measurement an agency to identify and consider a rule, this final rule does not establish an and Capital Standards (July 1988). The reasonable number of regulatory explicit supervisory threshold that banking agencies are participating alternatives before promulgating a rule. defines whether a bank had an above actively in that international effort. Because the OCC has determined that ‘‘normal’’ level of interest rate risk However, the timing of any this final rule will not result in exposure. The banking agencies have international standard for monitoring expenditures by state, local and tribal concluded that it is appropriate to first and assessing capital for interest rate governments, or by the private sector, of collect industry data and to evaluate the risk is uncertain. Given the importance more than $100 million in any one year, level of interest rate risk exposure in the of interest rate risk to the safety and the OCC has not prepared a budgetary banking industry before establishing an soundness of the banking industry and impact statement or specifically explicit supervisory threshold above the mandate of section 305 of FDICIA, addressed the regulatory alternatives which capital would be required. It is the banking agencies have concluded considered. As discussed in the important to note, however, that the that they should not delay the preamble, this final rule will clarify the banking agencies intend for this case-by- implementation of this rule and authority of the OCC to require case approach for assessing a bank’s measurement process until an additional capital for any significant capital adequacy for interest rate risk to international standard is achieved. The exposure to declines in the economic be a transitional arrangement. banking agencies will continue to work value due to changes in interest rates. The second step of the banking with international organizations to Under the proposed joint policy agencies’ process will be to issue a develop consistent international capital statement, the supervisory model and proposed rule that would establish an standards. At the time that an internal bank models will serve as explicit minimum capital charge for international agreement emerges on supervisory tools to assist examiners in interest rate risk, based on the level of either a measurement system or explicit assessing capital adequacy. Any bank’s measured interest rate risk minimum capital standard, the banking decision to require additional capital exposure. The banking agencies agencies will revisit their rules in light will be made on a case-by-case basis as anticipate that the proposed policy of the international standard. prescribed under the current capital statement on the supervisory assessment procedures. of interest rate risk will provide the IV. Regulatory Flexibility Act Statement foundation for the proposed rule that Each banking agency has concluded List of Subjects would propose the establishment of an after reviewing the final regulations that OCC explicit minimum capital requirement. the regulations, if adopted, will not The banking agencies will implement impose a significant economic hardship 12 CFR Part 3 this second step at some future date, on small institutions. The final rules do Administrative practice and through a subsequent and separate not necessitate the development of procedure, Capital risk, National banks, proposed rule after the banking agencies sophisticated recordkeeping or reporting Reporting and recordkeeping and the banking industry have gained systems by small institutions nor will requirements. more experience with the proposed small institutions need to seek out the supervisory measurement and expertise of specialized accountants, Board assessment process. lawyers, or managers in order to comply 12 CFR Part 208 During the transitional period before with the regulation. Each banking the second rulemaking process is agency therefore hereby certifies Accounting, Agriculture, Banks, initiated, the banking agencies will pursuant to section 605b of the banking, Confidential business work with the industry to determine Regulatory Flexibility Act (5 U.S.C. information, Crime, Federal Reserve what, if any, further modifications to the 605b) that the final rule will not have a System, Mortgages, Reporting and proposed measurement process are significant economic impact on a recordkeeping requirements, Securities. warranted. Such modifications may substantial number of small entities include further refinements to the within the meaning of the Regulatory FDIC supervisory model and to other criteria Flexibility Act (5 U.S.C. 601 et seq.). 12 CFR Part 325 used by examiners to evaluate the adequacy of banks’ internal models. The V. Executive Order 12866 Bank deposit insurance, Banks, transition period also allows the The Comptroller of the Currency has banking, Capital adequacy, Reporting banking agencies to collect and monitor determined that this final rule is not a and recordkeeping requirements, more rigorous and consistent significant regulatory action under Savings associations, State nonmember information on the level of banks’ Executive Order 12866. banks. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39493 Comptroller of the Currency Section 1 * * * (b) * * * (1) The risk- well as limited instances of interest rate and based capital ratio derived from these market risk. The framework incorporates 12 CFR Chapter I guidelines is an important factor in the OCC’s risks arising from traditional banking Authority and Issuance evaluation of a bank’s capital adequacy. activities as well as risks arising from However, since this measure addresses only nontraditional activities. The risk-based ratio For the reasons set forth in the joint credit risk, the 8% minimum ratio should not does not, however, incorporate other factors preamble, part 3 of chapter I of title 12 be viewed as the level to be targeted, but that can affect an institution’s financial of the Code of Federal Regulations is rather as a floor. The final supervisory condition. These factors include overall amended as set forth below. judgment on a bank’s capital adequacy is interest-rate exposure; liquidity, funding and based on an individualized assessment of market risks; the quality and level of PART 3ÐMINIMUM CAPITAL RATIOS; numerous factors, including those listed in earnings; investment, loan portfolio, and ISSUANCE OF DIRECTIVES 12 CFR 3.10. With respect to the other concentrations of credit; certain risks consideration of these factors, the OCC will arising from nontraditional activities; the 1. The authority citation for part 3 give particular attention to any bank with quality of loans and investments; the continues to read as follows: significant exposure to declines in the effectiveness of loan and investment policies; economic value of its capital due to changes and management’s overall ability to monitor Authority: 12 U.S.C. 93a, 161, 1818, in interest rates. As a result, it may differ and control financial and operating risks, 1828(n), 1828 note, 1831n note, 1835, 3907, from the conclusion drawn from an isolated including the risks presented by and 3909. comparison of a bank’s risk-based capital concentrations of credit and nontraditional 2. Section 3.10 is revised to read as ration to the 8% minimum specified in these activities. follows: guidelines. In addition to the standards In addition to evaluating capital ratios, an established by these risk-based capital overall assessment of capital adequacy must § 3.10 Applicability. guidelines, all national banks must maintain take account of those factors, including, in The OCC may require higher a minimum capital-to-total assets ratio in particular, the level and severity of problem minimum capital ratios for an accordance with the provisions of 12 CFR and classified assets as well as a bank’s individual bank in view of its part 3. exposure to declines in the economic value circumstances. For example, higher * * * * * of its capital due to changes in interest rates. For this reason, the final supervisory capital ratios may be appropriate for: Office of the Comptroller of the judgment on a bank’s capital adequacy may (a) A newly chartered bank; Currency differ significantly from conclusions that (b) A bank receiving special might be drawn solely from the level of its supervisory attention; Dated: June 29, 1995. risk-based capital ratio. (c) A bank that has, or is expected to Eugene A. Ludwig, have, losses resulting in capital * * * * * Comptroller of the Currency. By Order of the Board of Governors of the inadequacy; Federal Reserve System. (d) A bank with significant exposure Federal Reserve System Dated: July 7, 1995. due to the risks from concentrations of 12 CFR Chapter II credit, certain risks arising from William W. Wiles, nontraditional activities, or Authority and Issuance Secretary of Board. management’s overall inability to For the reasons set forth in the Federal Deposit Insurance Corporation monitor and control financial and preamble, part 208 of chapter II of title 12 CFR Chapter III operating risks presented by 12 of the Code of Federal Regulations is concentrations of credit and amended as set forth below: Authority and Issuance nontraditional activities; (e) A bank with significant exposure PART 208ÐMEMBERSHIP OF STATE For the reasons set forth in the joint to declines in the economic value of its BANKING INSTITUTIONS IN THE preamble, part 325 of chapter III of title capital due to changes in interest rates; FEDERAL RESERVE SYSTEM 12 of the Code of Federal Regulations is (f) A bank with significant exposure (REGULATION H) amended as set forth below: due to fiduciary or operational risk; PART 325ÐCAPITAL MAINTENANCE (g) A bank exposed to a high degree 1. The authority citation for Part 208 of asset depreciation, or a low level of revised to read as follows: 1. The authority citation for part 325 liquid assets in relation to short term Authority: 12 U.S.C. 36, 248(a), 248(c), continues to read as follows: 321–338a, 371d, 461, 481–486, 601, 611, liabilities; Authority: 12 U.S.C. 1815(a), 1815(b), 1814, 1823(j), 1828)(o), 1831o, 1831p–1, (h) A bank exposed to a high volume 1816, 1818(a), 1818(b), 1818(c), 1818(t), 3105, 3310, 3331–3351, and 3906–3909; 15 or, or particularly severe, problem loans; 1819(Tenth), 1828(c), 1828(d), 1828(i), U.S.C. 78b, 781(b), 781(g), 781(i), 78o–4(c)(5), (i) A bank that is growing rapidly, 1828(n), 1828(o), 1831o, 3907, 3909, 4808; 78q, 78q–1, and 78w; 31 U.S.C. 5318. either internally or through acquisitions; Pub. L. 102–233, 105 Stat. 1761, 1789, 1790 or 2. Appendix A to part 208 is amended (12 U.S.C. 1831n note); Pub. L. 102–242, 105 (j) A bank that may be adversely by revising the fifth and sixth Stat. 2236, 2355, 2386 (12 U.S.C. 1828 note). affected by the activities or condition of paragraphs under ‘‘I. Overview’’ to read 2. In appendix A to part 325, the fifth its holding company, affiliate(s), or as follows: undesignated paragraph of the other persons or institutions including introductory text is revised to read as chain banking organizations, with Appendix A to Part 1208ÐCapital follows: which it has significant business Adequacy Guidelines for State Member relationships. Banks: Risk-Based Measure Appendix A to Part 325ÐStatement of 3. In appendix A to part 3, section 1, Policy on Risk-Based Capital paragraph (b)(1) is revised to read as I. Overview follows: * * * * * * * * * * The risk-based capital ratio focuses The risk-based capital ratio focuses Appendix A to Part 3ÐRisk-Based principally on broad categories of credit risk, principally on broad categories of credit risk, Capital Guidelines although the framework for assigning assets however, the ratio does not take account of and off-balance-sheet items to risk categories many other factors that can affect a bank’s * * * * * does incorporate elements of transfer risk, as financial condition. These factors include 39494 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations overall interest rate risk exposure, liquidity, evaluating capital ratios, an overall solely from the absolute level of the bank’s funding and market risks; the quality and assessment of capital adequacy must take risk-based capital ratio. level of earnings; investment, loan portfolio, account of each of these other factors, By order of the Board of Directors. and other concentrations of credit risk, including, in particular, the level and certain risks arising from nontraditional severity of problem and adversely classified Dated at Washington, D.C. this 27th day of activities; the quality of loans and assets as well as a bank’s interest rate risk as June, 1995. investments; the effectiveness of loan and measured by the bank’s exposure to declines Federal deposit Insurance Corporation. investment policies; and management’s in the economic value of its capital due to Jerry L. Langley, overall ability to monitor and control changes in interest rates. For this reason, the Executive Secretary. financial and operating risks, including the final supervisory judgment on a bank’s risk presented by concentrations of credit capital adequacy may differ significantly [FR Doc. 95–18098 Filed 8–1–95; 8:45 am] and nontraditional activities. In addition to from the conclusions that might be drawn BILLING CODES 4810±33±M, 6210±01±M, 6714±01±M Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39495 DEPARTMENT OF THE TREASURY exempted from detailed IRR reporting between 8:45 a.m. and 5:15 p.m. and to would submit new IRR Call Report the security control room outside of Office of the Comptroller of the schedules indicating the maturity, those hours. Both the mail room and Currency repricing, or price sensitivity of their control room are accessible from the various on- and off-balance sheet courtyard entrance on 20th Street 12 CFR Part 3 instruments. A bank also would have between Constitution Avenue and C [Docket No. 95±17] the option of reporting its internal Street, N.W. Comments may be model estimates of the price sensitivity inspected in Room B–1122 between 9:00 FEDERAL RESERVE SYSTEM of its major portfolios and its economic a.m. and 5:00 p.m., except as provided value. in 261.8 of the Board’s ‘‘Rules Regarding 12 CFR Part 208 Concurrent with the publication of Availability of Information,’’ 12 CFR this proposed Supervisory Policy 261.8. [Docket No. R±0802] statement, the agencies have issued a FDIC: Written comments should be final rule that amends their capital sent to, Jerry L. Langley, Executive FEDERAL DEPOSIT INSURANCE guidelines for IRR. Those amendments Secretary, Attention: Room F–402, CORPORATION indicate that the agencies will consider Federal Deposit Insurance Corporation, in their evaluation of a bank’s capital 550 17th Street, N.W., Washington, D.C. 12 CFR Part 325 adequacy, the exposure of a bank’s 20429. Comments may be hand- capital and economic value to changes delivered to Room F–402, 1776 F Street Joint Agency Policy Statement: in interest rates. The amendments are in N.W., Washington, D.C. 20429, on Supervisory Policy Statement response to section 305 of the FDIC business days between 8:30 a.m. and Concerning a Supervisory Framework Improvement Act of 1991 (FDICIA) 5:00 p.m. [FAX number (202) 898–3838; for Measuring and Assessing Banks' which requires the agencies to amend Internet address: comments @ fdic.gov]. Interest Rate Risk Exposure their risk-based capital standards to take Comments will be available for AGENCIES: Office of the Comptroller of adequate account of interest rate risk. inspection and photocopying in Room the Currency (OCC), Treasury; Board of As noted in the discussion of the final 7118, 550 17th Street, N.W., Governors of the Federal Reserve rule on IRR, the agencies intend, at a Washington, D.C. 20429, between 9:00 System (Board); and Federal Deposit subsequent date, to incorporate explicit a.m. and 4:30 p.m. on business days. Insurance Corporation (FDIC). minimum requirements for IRR into FOR FURTHER INFORMATION CONTACT: their risk-based capital standards. The OCC: Christina Benson, Capital ACTION: Policy statement; request for agencies anticipate that the comment. Markets Specialist, or Lisa Lintecum, measurement framework described in National Bank Examiner (202/874– SUMMARY: The OCC, the Board, and the this proposed policy, will be the basis 5070), Office of the Chief National Bank FDIC (collectively, ‘‘the agencies’’) seek for such a capital requirement. Toward Examiner; Michael Carhill, Financial comment on a proposed interagency that end, the agencies intend to work Economist, Risk Analysis Division (202/ Supervisory Policy to establish a with the industry to evaluate the 874–5700); and Ronald Shimabukuro, uniform supervisory framework for reliability and accuracy of the results Senior Attorney, Bank Operations and measuring banks’ interest rate risk (IRR) from the supervisory model and bank Assets Division (202/874–4460), Office exposures. The proposed policy internal models. Any explicit minimum of the Comptroller of the Currency, 250 establishes a framework that the capital charge would be implemented E Street, S.W., Washington, D.C. 20219. agencies would use to measure and through the agencies’ rulemaking Board of Governors: James Houpt, monitor the level of IRR at individual process and would provide the Assistant Director (202/452–3358), banks. The measurement process opportunity for public comment before William F. Treacy, Supervisory proposed and described in this policy a final rule is adopted. Financial Analyst (202/452–3859), statement is intended to facilitate the DATES: Comments must be received by Division of Banking Supervision and agencies’ assessment of a bank’s IRR October 2, 1995. Regulation; Gregory Baer, Managing exposure and its capital adequacy. The ADDRESSES: Interested parties are Senior Counsel (202/452–3236), Legal results of the supervisory and internal invited to submit written comments to Division, Board of Governors of the models would be one factor used by the any or all of the agencies. All comments Federal Reserve System. For the hearing agencies in their assessments’ of a will be shared among the agencies. impaired only, Telecommunication bank’s capital adequacy for IRR. Other OCC: Written comments should be Device for the Deaf (TDD), Dorothea factors that the agencies will consider submitted to Docket No. 95–17, Thompson (202/452–3544), Board of include the quality of the bank’s IRR Communications Division, Ninth Floor, Governors of the Federal Reserve risk management process, the overall Office of the Comptroller of the System, 20th and C Streets, N.W., financial condition of the bank, and the Currency, 250 E Street, S.W., Washington, D.C. 20551. level of other risks at the bank for which Washington, D.C. 20219, Attention: FDIC: William A. Stark, Assistant capital is needed. Pursuant to the final Karen Carter. Comments will be Director (202/898–6972) or Phillip J. rule banks may be required to hold available for inspection and Bond, Senior Capital Markets Specialist additional capital. photocopying at that address. (202/898–3519), Division of The proposed supervisory framework Board of Governors: Comments, Supervision, Federal Deposit Insurance provides measures of the change in a which should refer to Docket No. R– Corporation, 550 17th Street, N.W., bank’s economic value for a given 0802, may be mailed to Mr. William Washington, D.C. 20429. change in interest rates using a Wiles, Secretary, Board of Governors of SUPPLEMENTARY INFORMATION: supervisory model. The framework also the Federal Reserve System, 20th and considers the results of a bank’s internal Constitution Avenue, N.W., I. Introduction model results when that model provides Washington, D.C. 20551. Comments Interest rate risk is the risk that a measure of the change in a bank’s addressed to Mr. Wiles may also be changes in market interest rates will economic value. Banks not specifically delivered to the Board’s mail room have an adverse effect on a bank’s 39496 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules earnings and its underlying economic measurement system (‘‘supervisory heavily on smaller organizations with value. Changes in interest rates affect a model’’) that will, on a standardized limited resources, the policy statement bank’s reported earnings by changing its basis, measure the risk of all banks not makes provisions for smaller, well- net interest income and the level of exempted from reporting additional managed institutions that are less likely other interest-sensitive income and information on their IRR exposures. In to be significantly exposed to IRR to be operating expenses. The underlying addition, banks will be encouraged to exempt from additional reporting. As economic value of the bank’s assets, report, through a voluntary and described in further detail in the policy liabilities, and off-balance sheet confidential supplemental Call Report statement, the agencies propose that instruments also is affected by changes schedule, the results of their internal banks with (i) assets under $300 in interest rates. These changes occur IRR measurement systems. These million, (ii) composite supervisory because the present value of future cash measured results would then serve as an CAMEL ratings of 1 or 2 and, (iii) flows and in some cases, the cash flows additional source of information for an moderate or low holdings of assets with themselves, are affected when interest examiner’s assessment of the bank’s risk intermediate and long term maturity or rates change. The combined effects of management and capital adequacy. The repricing characteristics, be exempted the changes in these present values results also would provide information from expanded reporting requirements reflect the change in the bank’s on industry trends and patterns that will for IRR. underlying economic value. better inform both present and future Banks that are not specifically Interest rate risk is inherent in the role supervisory efforts related to interest exempted by the proposed policy of banks as financial intermediaries. rate risk. statement will submit additional Call However, a bank that has an excessive The measurement framework Report information on the repricing and level of interest rate risk can face described in this policy statement maturity of their portfolios. The diminished future earnings, impaired focuses on the exposure to a bank’s proposed supervisory model applies a liquidity and capital positions, and, underlying economic value from series of IRR risk-weights to a bank’s ultimately, may jeopardize its solvency. movements in market interest rates. The reported repricing and maturity The agencies believe that safety and exposure to a bank’s economic value, as balances. These weights estimate the soundness requires effective used in this policy statement, is defined price sensitivity of a bank’s reported management and measurement of as the change in the present value of its balances to a 200 basis point increase interest rate risk, and each agency has assets, minus the change in the present and decrease in interest rates. The provided supervisory guidance to banks value of its liabilities, plus the change summation of these balances, along with and examiners on this subject. In in the present value of its off-balance certain price sensitivity information that addition, the agencies believe that a sheet interest-rate positions. The a bank may be required to self-report, bank’s capital adequacy should be agencies haven chosen this focus results in a net risk-weighted exposure assessed in the context of the risks it because they believe that changes in a for the bank. That exposure represents faces, including interest rate risk. bank’s economic value best reflect the the estimated change in the bank’s Section 305 of FDICIA Pub. L. 102–242 potential impact of embedded options economic value to the specified rate (12 U.S.C. 1828 note), on which a final and the potential exposure that the change. rule is being issued at the same time as bank’s current business activities pose The proposed supervisory model this statement, specifically requires the to the bank’s future earnings stream, and represents a refinement of the model agencies to take account of interest rate hence, its ability to sustain adequate presented in the September 1993 notice risk in assessing capital adequacy. Both capital levels. Changes in economic of proposed rulemaking (September of these aspects of interest rate risk value measure the effect that a change NPR) [58 FR 48206, September 14, depend on, among other things, a in interest rates will have on the value 1993]. The September NPR solicited meaningful measurement of the bank’s of all of the future cash flows generated comments on a framework for risk exposure. by a bank’s current financial positions, measuring banks’ exposure to IRR for The agencies believe that a bank not just those cash flows which affect capital purposes pursuant to Section should have an IRR measurement earnings over the few months or 305 of FDICIA. The final rule for Section system that is commensurate with the quarters. Thus, changes in economic 305 does not incorporate an explicit nature and scope of its IRR exposures. value provide a more comprehensive measurement framework for IRR into Among the difficulties in performing a measure of risk than measures which the agencies’ risk-based capital supervisory evaluation of interest rate focus solely on the exposure to a bank’s standards. The agencies have concluded risk, however, is that measurement near-term earnings. It is for this reason that it is appropriate to first collect systems and management philosophies that the agencies have amended their industry data and evaluate the can differ significantly from one bank to capital standards to identify explicitly a performance of the measurement another. As a result, although two banks bank’s exposure to declines in economic framework before explicitly may each be well-managed, their value from changes in interest rates as incorporating the results of that measured exposure may not be directly an important factor to consider in framework into their risk-based capital comparable. This difficulty has been evaluating a bank’s capital adequacy. standards. The data collected by the magnified by the rapid pace of change agencies will assist current supervisory in financial markets and instruments II. Summary of Approach efforts and will facilitate the themselves. In assessing the sensitivity of a bank’s development of a measurement In implementing Section 305 of economic value to changes in interest framework that could be explicitly FDICIA, and in light of the rapid rates, the agencies are proposing to use incorporated into capital standards in evolution in financial instruments and the results of a supervisory model and, the future. This proposed policy practices, the agencies believe there is a for those electing to provide such statement would implement that need for a more formal supervisory analysis, the results of banks’ own supervisory measurement framework. assessment of banks’ interest rate risk internal models. These assessments will The proposed framework is broadly exposures. To support that effort, the rely on data reported in regulatory Call consistent with the one discussed in the agencies propose a measurement Reports. Recognizing that the burden for September NPR. The agencies, however, framework that includes a supervisory reporting IRR exposures would fall most have made several refinements to the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39497 supervisory model to improve its agencies to be sure that steps taken to deemed adequate by examiners for the accuracy while still endeavoring to limit implement Section 305 ‘‘take into nature and scope of the bank’s activities the burden of the expanded reporting account the size and activities of the and that it measured the bank’s and maintain model transparency. The institutions and do not cause undue economic exposure using the interest refinements to the September NPR reporting burdens.’’ The agencies rate scenarios specified by the agencies. model include: believe that the Congressional mandate to avoid undue reporting burdens is also B. Comments on the September NPR (1) Separate risk-weights and reporting for Measurement Framework residential adjustable-rate mortgages; applicable and desirable for purposes of (2) Separate risk-weights and reporting for implementing the proposed policy The agencies collectively received a residential fixed-rate mortgages and all other statement. Consequently, as already total of 133 comments on the September amortizing assets; noted, the agencies have formulated a (3) Self-reporting by banks of price NPR. The majority of commenters were reporting exemption test that takes into banks. Thrift, trade associations, bank sensitivities of instruments with complex account the size and activities of an and/or non-standardized cash flow consultants, and other government- characteristics such as structured notes, institution. In addition, the reporting sponsored agencies and regulators also collateralized mortgage obligations (CMOs), requirements for the supervisory model commented. The majority of and mortgage servicing rights; also considers the nature and scope of commenters responded favorably to (4) Supplemental reporting for banks with a bank’s activities. Banks holding modifications that the agencies made concentrations in adjustable- and fixed-rate certain types of financial instruments mortgage loans. from an earlier, advanced notice of that often have complex or proposed rulemaking (ANPR) [57 FR (5) Greater flexibility in reporting deposits nonstandardized cash flow 35507, August 10, 1992]. In particular, without stated maturity or repricing dates; characteristics will be expected to have most commenters expressed strong (6) Separate reporting and treatment in the the ability to calculate on their own, or baseline schedule for residential mortgage support for using the results of a bank’s obtain from reliable sources, estimates loans which are held by the bank for sale and own IRR model to determine its level of of those instruments’ market value delivery to a secondary market participant exposure and corresponding need for sensitivity. Banks with holdings of under terms of a binding commitment. capital. Commenters noted the potential fixed- and adjustable-rate residential A summary of the public comments inaccuracies of standardized regulatory mortgage loans and securities that and agency analysis that led to these models as one reason for allowing the exceed certain levels would be required refinements are included in section IV use of internal models. Internal models, to report additional information on of this document and the refinements they believed, would better capture the those portfolios to better assess the themselves are described in detail in the embedded option risks associated with unique characteristics of individual policy statement and accompanying those products. bank portfolios. Many commenters also reporting instructions. stated that permitting the use of internal For a bank choosing also to report the IV. September 1993 Notice of Proposed models would provide banks with results of its internal IRR model, the Rulemaking incentives to improve their internal risk agencies are proposing to collect the measurement systems. dollar change in value of the bank’s A. Description of September NPR Many commenters raised concerns major portfolios and the net change in In September 1993, the Banking about various elements of the the bank’s economic value using the Agencies issued a notice of proposed measurement framework outlined in the same rate scenario incorporated in the rulemaking (September NPR) [58 FR September NPR. Most commenters supervisory model. To the extent 48206, September 14, 1993] that believed that the proposed treatment of specific details concerning a bank’s solicited comments on a framework for non-maturity deposits understated their financial instruments are incorporated measuring a bank’s IRR exposure and effective maturity. Others questioned in an internal model with adequate determining the amount of capital the the accuracy of the proposed integrity and reasonable assumptions, bank needed for IRR. supervisory model and the those results should provide the The framework outlined in the appropriateness of the proposed agencies with an improved September NPR incorporated the use of exemption test criteria. understanding of a bank’s IRR profile. a three-level measurement process to For a bank reporting internal model evaluate banks’ IRR exposures. The first C. Agencies’ Responses to Comments results, an examiner would have the measure was a quantitative screen, benefit of weighing the results of both based on existing Call Report The agencies have carefully measures in assessing a bank’s overall information, that exempted potential considered the concerns raised by IRR exposure for capital adequacy low risk banks from additional reporting commenters regarding the structure and purposes. Moreover, comparisons requirements. The exemption screen elements of the proposed measurement between the results of the supervisory used two criteria: (1) The amount of a framework and the accuracy of the model and internal models are expected bank’s off-balance-sheet interest rate proposed supervisory model. Although to aid the agencies in determining what, contracts in relation to its total assets; the agencies have decided to retain if any, refinements should be made to and (2) the relation between a bank’s many of the principles and structures the proposed measurement framework fixed- and floating-rate loans and outlined in the September NPR before incorporating it into a minimum securities that mature or reprice beyond framework, the agencies are also capital charge for IRR. five years and its total capital. proposing several modifications and Banks not meeting the proposed refinements to that framework. These III. CDFI Section 335 Considerations exemption test were required to modifications include changes to the On September 23, 1994 the Reigle calculate their economic exposure by proposed exemption criteria, the Community Development and either: (1) A supervisory model that structure of the supervisory model, and Regulatory Improvement Act of 1994 measured the change in the economic the treatment of certain types of assets (‘‘CDFI’’) (Pub. L. 103–325) was enacted. value of bank for a specified change in and non-maturity deposits. These Section 335 of CDFI amended section interest rates; or (2) the bank’s own IRR modifications are discussed in greater 305 of FDICIA by instructing the model, provided that the model was detail in the sections that follow. 39498 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 1. Exemption Criteria longer-term assets. Specifically, to be (3) The appropriate historical sample The September NPR included criteria exempted, a bank would have to meet period used to determine the likelihood that would exempt a bank from the all of the following three conditions: of a given rate movement. (1) The bank must have total assets of The agencies sought comment on additional measurement and reporting less than $300 million; and several alternative methodologies for requirements. The proposal set forth the (2) Have a ‘‘1’’ or ‘‘2’’ composite developing appropriate interest rate following two criteria that a bank would CAMEL 1 rating from its primary scenarios, including both parallel and have to meet to qualify for an supervisor; and non-parallel changes in interest rates. exemption: (3) The sum of: Among the non-parallel methods, the (1) The total notional principal (a) 30 percent of its loans and interest rate scenario could be based amount of all of the bank’s off-balance- securities with contractual maturity or upon observed nominal changes in sheet interest rate contracts must not repricing dates between one and five interest rates, or upon observed exceed 10 percent of its assets; and years, and proportional changes in interest rates. (2) 15 percent of the sum of the bank’s (b) 100 percent of its loans and As an alternative, the agencies also fixed- and floating-rate loans and securities with contractual maturity or sought comment on using a simple securities that mature or reprice beyond repricing dates beyond five years must parallel shift in interest rates across the 5 years must be less than 30 percent of be less than 30 percent of the bank’s entire maturity spectrum (‘‘parallel rate its total capital. total assets. shocks’’). There was general support among Banks that meet this proposed The agencies received a range of commenters for some type of exemption test could elect to submit the comments on the selection and exemption. The majority of commenters proposed IRR Call Report schedules on determination of the appropriate addressing this issue, however, voiced a voluntary basis. The agencies interest rate scenarios. Commenters concerns with the proposed test. Many encourage such voluntary reporting. were divided on whether a short or long commenters believed that a 10 percent The exemption test does not alleviate historical sample was most appropriate threshold for off-balance sheet contracts the need for an exempted bank to for determining the potential range of would discourage the use of such employ sound IRR measurement and interest rate movements. Those favoring instruments in managing and reducing management practices and to have a shorter sample period believed such a IRR exposures. Commenters also sufficient capital for its risk exposure. period best reflected current and likely expressed concerns that the maturity Exempted banks will continue to be probabilities of rate changes. Others test, incorporated in the second subject to safety and soundness IRR favored a longer sample period, criterion, used contractual maturities examinations that the agencies may primarily to minimize the impact of any rather than expected average lives and conduct. As a result of such one rate cycle. Opinions were also would overstate the risk associated with examinations, a bank that is exempt divided on whether a monthly, amortizing loans and securities, such as from this policy statement may be quarterly, or annual time horizon was mortgage-related products. Several directed by their primary supervisor to most appropriate for analyzing potential commenters suggested modifying the improve its IRR measurement and rate scenarios. The majority of criterion to use bank management’s management practices, or to hold commenters favored either a monthly or estimates of average lives, rather than additional capital for IRR. In addition, quarterly horizon, on the grounds that contractual maturities. the agencies would retain the right to such time frames represented the time Several commenters questioned require any bank to comply with the bank management would need to whether the proposed exemption provisions of this policy statement and implement risk mitigating actions in criteria provided sufficient safeguards any subsequent rulemakings regarding response to an adverse movement in against exempting banks that may pose IRR. interest rates. Others, however, significant risks to the Bank Insurance 2. Interest Rate Scenarios disagreed and favored the use of an Fund due to their potential IRR annual time horizon. exposures. A few commenters noted the The September NPR outlined a Commenters also expressed diverse potential for material intermediate-term number of factors that should be views on whether the proposed rate maturity (e.g., 1- to 5-years) mismatches. considered in selecting an appropriate scenarios should be based on nominal A minority of commenters question the interest scenario for measuring banks’ or proportional changes in historical need for, or efficacy of, any exemption IRR exposures and evaluating capital rates, or on the basis of a simple parallel test. adequacy. These factors included: rate shock. A majority of commenters The agencies continue to believe that (1) The time horizon over which argued against the use of parallel rate an exemption is desirable and that banks and supervisors could reasonably shocks, on the grounds that such section 335 of CDFI Bill reinforces the be expected to identify risk and scenarios were not realistic of probable need to consider ways of minimizing implement mitigating responses; future interest rate changes. Of these burdens associated with this policy (2) The likelihood of occurrence, as commenters, most favored scenarios statement. The agencies also believe that reflected by historical rate volatility; that would be based on proportional there is a need to ensure sufficient and rate changes, such that the size of the safeguards against exempting banks that rate change used to measure exposures 1 CAMEL refers to the Uniform Financial may pose significant systemic risks or Institution’s Rating System that the agencies have would depend upon, and vary with, the costs to the Bank Insurance Fund. adopted. Each bank is assigned a uniform current level of market interest rates. Consequently, the agencies propose to composite rating based on an evaluation of Other commenters, however, favored modify the exemption test to focus on pertinent financial and operational standards, criteria and principles. This overall rating is the use of parallel rate shocks, primarily three considerations: the size of the expressed through use of a numerical scale of ‘‘1’’ on the grounds of simplicity and ease of bank; the quality of its overall condition through ‘‘5’’ with ‘‘1’’ indicating the highest rating understanding. and management, as measured by its and ‘‘5’’ the lowest. The composite rating assess five The agencies propose to use a simple composite CAMEL rating; and the level key performance dimensions that are commonly 200 basis point, instantaneous parallel identified by the acronym ‘‘CAMEL’’: Capital of its potential repricing exposure as adequacy, Asset quality, Management, Earnings and upward and downward shift in interest measured by its intermediate and Liquidity. rates for measuring and evaluating Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39499 banks’ exposures for purposes of products, would improve the model’s for those banks. A detailed description assessing capital adequacy. The accuracy. of the model, the risk weights, and agencies believe that such rate The agencies sought comment in the information requirements are discussed movements are realistically conservative September NPR on whether commercial in the policy statement. Schedule 1, given the movements in interest rates banks with portfolios that are similar to provided in the attached policy experienced in 1994. They also believe thrift should be required to use the Net statement, illustrates the type of that such rate scenarios are sufficiently Portfolio Value model used by the information that will be used in the transparent and easy to understand that Office of Thrift Supervision (OTS) for baseline supervisory model, while they can be easily incorporated into federally-supervised thrift institutions. Schedules 2–4 illustrate the information either a bank’s own IRR model or the Most commenters believed that such a used for the supplemental modules. supervisory model. The scenarios are requirement would impose substantially a. Adjustable-rate residential incorporated into the proposed greater reporting burdens without mortgages. The first modification that supervisory model via the proposed necessarily improving the accuracy of the agencies have made is to treat risk-weights that are applied to a bank’s the measure and might create incentives adjustable-rate residential mortgage reported maturity and repricing for banks to substitute such a model for loans and securities (ARMs) separately balances. the judgment of bank management. A from fixed-rate residential mortgage The agencies stress that their adoption minority of commenters disagreed and assets. As modified, information on of these rate scenarios does not replace stated that the approach and data used ARMs will be reported by a bank on the the need for a bank to evaluate its IRR by the OTS were superior and more basis of the reset frequency of the exposure over a wider range of possible accurate than what the banking agencies ARM’s pricing index, rather than by the rate changes for its own risk had proposed. ARM’s next date to repricing. In management purposes. Such rate The agencies have carefully addition, a bank will report ARMs that changes may include non-parallel yield considered commenters’ concerns about are currently within 200 basis points of curve shifts and gradual, as well as the proposed supervisory model’s their lifetime cap separately from those immediate, rate changes. To ensure accuracy. The agencies believe it is ARMs that are further away from their greater consistency, however, in the critical to have a supervisory model that lifetime caps. The agencies believe that agencies’ assessments of banks’ can identify banks with significant IRR this stratification of ARM products will exposures and their need for capital, exposures. They also are attentive to the provide a better reflection of their banks are encouraged to include the risk that model measurement errors potential price sensitivity to changes in proposed instantaneous and parallel 200 could lead to undesirable incentives or market interest rates than the treatment basis point rate scenarios into their incorrect assessments regarding the risk described in the September NPR. internal IRR measurement processes. and complexity of products, activities, b. Fixed-rate residential mortgages or banks. At the same time, the agencies and other amortizing assets. The second 3. Structure of Supervisory Model recognize the need to balance the desire modification the agencies made is to The supervisory model in the for increased accuracy against the treat fixed-rate residential mortgage September NPR grouped assets, potential costs of greater reporting detail assets separately from other amortizing liabilities, and off-balance-sheet and model complexity. The agencies are assets. In the September NPR, these positions by various categories, based particularly concerned that the assets had been combined into a single on their general cash flow and product supervisory model retain sufficient category. As a result of this characteristics. Each category and time transparency so that bankers can combination, the same prepayment band was assigned risk-weights understand its methodology and assumptions were applied to all corresponding to a rising rate scenario anticipate and compute their bank’s amortizing assests. By separating these and a declining-rate scenario. The risk- measured exposure and that it not two categories, the agencies propose to weights were constructed by the replace the role or need for sound apply different prepayment assumptions agencies, using hypothetical market internal interest rate risk management to the two categories. instruments that were representative of systems. c. Self-reporting of market value the category being measured. For The agencies intend to make five sensitivities. The third modification will amortizing instruments, the risk-weights modifications to the structure of the require a bank that holds certain types incorporated assumptions about supervisory model to improve its of financial instruments to provide in its prepayments. accuracy and which are described Call Report submissions, estimates of A number of commenters expressed below. The first four changes modify the changes in market value sensitivities of concerns regarding the accuracy of the basic supervisory model outlined in the those instruments for the specified 200 model proposed in the September NPR. September NPR. This revised basic basis point interest rate scenarios. These Frequently cited concerns included: the model will be the baseline model for estimates may be obtained from the use of hypothetical, rather than bank- non-exempted banks. The last bank’s own internal risk measurement specific, instruments to derive risk modification creates supplemental systems or from reliable third-party weights; the level of data aggregation; modules for banks that have sources, provided that the bank knows, the use of standardized prepayment concentrations in residential mortgage- understands, and documents the assumptions; and the treatment of related instruments. The agencies are assumptions underlying those estimates. interest rate protection agreements (caps mindful that the supplemental All estimates and supporting and floors). A number of commenters schedules will impose additional documentation will be subject to voiced concerns about the treatment of reporting requirements for some banks. examiner review. The September NPR residential mortgage-related products. In Nonetheless, the agencies are concerned used this approach for certain mortgage general, these commenters believed that that the baseline model may not be derivatives securities. The agencies additional detail on mortgage holdings, sufficiently accurate to capture the risk propose to extend this treatment to such as coupon information on fixed- at banks with significant holdings of other products. The products for which rate mortgages, and more explicit mortgage loans or mortgage pass- banks would be required to self-report information on periodic and lifetime through securities, and therefore market value sensitivities generally have interest caps for adjustable-rate propose to require additional reporting complex options or cash flow 39500 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules characteristics. These characteristics consistent with supervisory guidance underlying coupon rates. To develop make it difficult to adequately measure issued by each of the agencies that these risk-weights, the agencies have these products in a standardized model directs banks with significant trading used the September 30, 1994 pricing without collecting detailed transaction- activities to have internal risk tables generated by the Office of Thrift oriented data. measurement and limit systems Supervision’s Net Portfolio Value Self-reporting of market value commensurate with the size and Model.5 The agencies will apply this sensitivities generally would be complexity of their activities. supplemental module and associated required for the following products or As previously noted, the Basle risk-weights when a bank’s holdings of portfolios: Committee has recently released for fixed-rate residential mortgage loans (1) All mortgage-backed derivative comment a proposal to incorporate the and pass-through securities represent 20 securities that meet the FFIEC’s definition of market risks of trading activities into the percent or more of its total assets. ‘‘high-risk.’’ 2 Basle Accord risk-based capital Schedule 2 in the attached policy (2) All structured notes, as defined in the standards.4 The agencies published in statement illustrates the information Call Report instructions; the Federal Register on July 25, 1995 that will be used in the supplemental (3) Non-high-risk mortgage derivative (60 FR 38082) a notice of proposed module for fixed-rate residential securities when those holdings represent 10 rulemaking on the Basle market risk percent or more of a bank’s assets. mortgages. This expanded module will (4) Mortgage servicing rights that are proposal. If the agencies adopt a final be optional for a bank whose holdings capitalized and reported on the bank’s rule to implement the Basle market risk of these instruments are less than 20 balance sheet; proposal for banks with a large percent of its assets. (5) Off-balance-sheet interest rate options, concentration of trading activities, the Two levels of supplemental modules caps, and floors, including interest rate agencies anticipate that modifications to have been developed by the agencies for swaps with embedded option characteristics. this policy statement will be required to adjustable-rate residential mortgages. The agencies believe that given the ensure that IRR exposures arising from The first level, illustrated by Schedule potential price sensitivity of these those activities are not ‘‘double- 3 in the attached policy statement, products or portfolios to interest rate counted.’’ One approach that the requires information on ARMs to be changes, it is reasonable to expect banks agencies are considering is to exclude stratified by reset frequency (as in the to be able to calculate or obtain reliable trading activities from this proposed baseline model), periodic caps, and the estimates of their market value policy statement and IRR measure for ARMs’ distances from lifetime caps. sensitivities. Industry comments on the those banks that are subject to the This module will be used by the availability of such information are market risk proposal. If such an agencies when a bank’s ARM holdings especially welcomed. approach is adopted, those banks would are greater than 10 but less than 25 d. Trading account portfolios. The be exempted from having to report the percent of its assets. The second level, agencies also propose to change the changes in the market value of their illustrated by Schedule 4 in the attached manner in which trading account trading portfolios for the IRR measure. policy statement, requires that ARM positions are treated in the supervisory If, however, a bank’s trading portfolio balances be further stratified by the model. These changes are in response to offsets the exposure from other underlying rate index of the ARM. This commenters concerns regarding the components of the bank’s balance sheet, module will apply to banks whose burden associated with distributing this treatment would overstate the holdings equal or exceed 25 percent of trading positions into the maturity bank’s total IRR exposure. their total assets. The agencies have ladder and applying a 200 basis point e. Supplemental modules. The final developed risk-weights that correspond modification made by the agencies to rate shock to those positions. with each various reset frequency, the supervisory model structure is the As modified, banks will be asked to lifetime cap, periodic cap, and, index development of supplemental modules self report the change in the economic combination, again using pricing tables for fixed-rate and adjustable-rate value of all of their trading account generated from the OTS Net Portfolio residential mortgage loans and pass- positions for a 100 basis point parallel Value Model. increase or decrease in interest rates. through securities. A bank whose The agencies are mindful that many This rate change, smaller than the 200 holdings of these products exceeds commenters to the September NPR certain threshold levels will be required basis point change used for the rest of raised concerns about tradeoffs between to report additional information on the bank’s holdings, reflects the shorter attempts to improve the supervisory those holdings in their Call Report holding period typical for trading model accuracy and associated submissions. The agencies will apply account positions. It also is similar to reporting burdens, especially with expanded tables of risk-weights to those the 100 basis point scenario used by the regards to the use of the OTS model. portfolios. The supplemental module for Basle Committee on Banking Nonetheless, the agencies believe the fixed-rate residential mortgages requires Supervision (Basle Committee) in its distribution of coupons for fixed-rate a bank to stratify its balances into eight April 1995 proposal on capital mortgage portfolios and the interaction coupon ranges. The agencies have requirements for the market risks of of the parameters illustrated in 3 developed separate risk-weights for each traded debt securities. Schedules 3 and 4 significantly affect The agencies believe the self-reporting coupon range which reflect the the price sensitivity of mortgage loans treatment for trading accounts is differences in expected prepayment speeds that are associated with the and securities. The agencies believe that by explicitly considering these 2 Effective February 10, 1992, the agencies and the Office of Thrift Supervision adopted revised 4 The Committee’s proposal is described in a parameters, the supplemental modules supervisory policies on securities activities that consultative paper, entitled ‘‘Planned Supplement will enhance the accuracy of the were developed under the auspices of the FFIEC. to the Capital Accord to Incorporate Market Risks,’’ supervisory model. The agencies believe The revised policies established a framework for issued in Basle, Switzerland on April 12, 1995. that this increased accuracy is identifying ‘‘high-risk mortgage derivative Copies of that paper may be obtained by contacting: products.’’ The OCC’s Communications Division, Ninth Floor, 3 The Basle Committee on Banking Supervision is Office of the Comptroller of the Currency, 250 E 5 Appendix 4 of the policy statement provides a a committee of banking supervisory authorities Street, S.W., Washington, D.C. 20219. A copy of the description of the derivation of the risk-weights for which was established by the central-bank paper also is available at the FDIC Reading Room, the baseline supervisory model and supplemental Governors of the Group of Ten countries in 1975. 550 North 17th Street, NW, Washington, D.C. modules. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39501 warranted due to the increased holdings expressed concern that the adoption of than demand balances held by other of mortgage products among commercial the proposed rules could lead to entities. In particular, the agencies and savings banks. They also note the incorrect assessments of risk exposures believe that a shorter maturity is flexibility that many banks exercise in or inappropriate incentives to shorten appropriate for commercial demand their ability to tailor the various pricing asset maturities. deposit accounts since many of these combinations of their ARM products. As The agencies recognize that the accounts are in the form of banks expand their activities in these treatment of non-maturity deposits will compensating balances.6 The implicit products, the agencies are particularly be, for many banks, the single most earnings from these compensating concerned that banks not ignore the important assumption in measuring balances are often used to offset service potential impact and interaction of these their IRR exposures. The agencies also charges incurred by the customer, and pricing parameters. agree that many banks historically have the level of these implicit earnings Draft instructions for completing the been able to exercise considerable attributed to the deposits is generally supplemental modules and a technical flexibility in the timing and magnitude dependent upon the level of current description of the risk-weights used in of pricing changes for these accounts. It market rates. As such, these balances the modules are provided in the is for this reason that the agencies had behave very much like interest-sensitive appendices 2 and 4 to the proposed proposed to allow banks some flexibility balances. As market rates increase, the policy statement. in the treatment of these deposits. level of balances drops due to a higher 4. Non-maturity deposit assumptions. Nonetheless, the agencies believe that earnings credit, while as rates decline, The September NPR established limits there are risks associated with assuming the level of balances will generally on the maximum maturities that a bank that a bank has sufficient flexibility in increase. could attribute to its non-maturity its management of these deposits so as The agencies propose to extend the deposits when measuring its IRR to offset any IRR position it may have. range of permissible maturities for non- exposures for capital adequacy. Non- While these deposits can, in many maturity deposits by revising the maturity deposits were defined to be circumstances, help to mitigate a bank’s distribution rules for those deposits. As those instruments without a specific IRR exposure, historical experience proposed, a bank may distribute its maturity or repricing date and included suggests that an institution can incur deposits across time bands according to demand deposits (DDA), negotiable significant levels of IRR though it may its individual assumptions and order of withdrawal (NOW), savings, have sizeable holdings of non-maturity experience, subject to the following and money market deposit (MMDA) deposits. The agencies also are constraints: accounts. In the September NPR, banks concerned that increased competitive were subject to the following constraints (1) Commercial Demand Deposits: A bank pressures and changing customer in distributing these deposits across would report 50 percent of it’s commercial demographics may, over time, make time bands: demand deposits in the 0–3 month time these deposits more rate sensitive or band. The remaining balances may be (1) A bank could distribute its DDA and prone to migration into other distributed across the first four time bands, MMDA accounts across any of the first three investment vehicles. with a maximum of 20 percent of total time bands, with a maximum of 40 percent Given these considerations, the balances in the 3–5 year time band. of those balances in the 1 to 3 year time band; (2) Retail DDA, Savings, and NOW (2) A bank could distribute its savings and agencies believe it is appropriate to extend, but not eliminate, the maximum Accounts: A bank may distribute the NOW account balances across any of the first balances in these accounts across any of the four time bands, with a maximum of 40 permissible maturities for non-maturity first five time bands, with a maximum of 20 percent of the total of those balances in the deposits. Within these maturity ranges, percent in the 5–10 year time band and no 3 to 5 year time band. a bank would have the flexibility to more than 40 percent combined in the 3–5 The treatment of non-maturity distribute its balances based on its own and 5–10 year bands. deposits was one of the most assumptions and experience. The (3) MMDA Accounts: A bank may commented upon aspects of the agencies will expect that bank distribute the balances in these accounts September NPR. Most commenters management will be able to document to across any of the first three time bands, with stated that the proposed treatment examiners the rationale for the a maximum of 50 percent in the 1–3 year band. could, in many cases, understate the treatment they have chosen. effective maturity of these deposits and In addition to extending permissible Table A summarizes the distribution urged the agencies to adopt a more maturities, the agencies believe that that would result if a bank reported its flexible approach or extend the demand deposit balances held by balances so as to maximize its allowable permissible maturities. Commenters businesses should be treated differently maturities. TABLE A.ÐMATURITY DISTRIBUTION LIMITS FOR NON-MATURITY DEPOSITS 3±12 0±3 months months 1±3 years 3±5 years 5±10 years (percent) (percent) (percent) (percent) (percent) Commercial DDA ...... 50 0 30 20 ...... Retail DDA ...... 0 0 60 20 20 MMDA ...... 0 50 50 ...... Savings ...... 0 0 60 20 20 NOW ...... 0 0 60 20 20 6 For purposes of this policy statement, the term of the Federal Reserve System’s Regulation D ‘‘commercial’’ is used to mean ‘‘nonpersonal’’ as dealing with reserve requirements. that term is defined under the Board of Governor 39502 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules The agencies believe that these (2) Uses the proposed supervisory internal models. Efforts to devise more maturity limits provide appropriate scenario of an instantaneous and explicit guidance could, however, result guidelines for the purpose of parallel 200 basis point movement in in standards which are inappropriate for standardized IRR measurement across interest rates; and some institutions and may impede the the banking industry. These limits are (3) Is deemed by the examiner to industry’s continued innovation of more not intended to replace the need for provide a more accurate assessment of sophisticated risk measurement banks to evaluate and consider the the bank’s IRR risk profile than the techniques. The agencies welcome sensitivity of their individual deposit supervisory model and meets the industry comments and suggestions on bases when managing their IRR criteria discussed in Section VII of the criteria and standards that they should exposures. Examiners will consider a proposed policy statement. establish for accepting internal model bank’s assessment of its deposit base Reacting to the September NPR, some results. and how those assessments may differ commenters requested the agencies to With regard to reporting, the agencies from those used in the standardized provide more explicit guidelines on the propose that internal model results be supervisory model during the criteria that examiners will use to reported on voluntary basis in a examination process when evaluating a evaluate the adequacy of a bank’s supplemental Call Report schedule like bank’s capital adequacy for IRR. The model. Other commenters cautioned the that portrayed in Schedule A. In agencies do not propose to require agencies against creating checklists of response to the concerns of many banks to incorporate these assumptions acceptable assumptions or measurement commenters, the agencies propose that into their internal IRR models when techniques. Such lists, they believed, such reporting be on a confidential submitting internal model results to the would be incomplete given the diverse basis. Although many commenters to agencies. Rather, through the nature of banks and would stifle the September NPR requested that banks examination process, examiners will innovation in both risk measurement submitting internal model results not be consider whether the treatment used in and product development. Some required to also report the data required the bank’s model is appropriate, based commenters also expressed concern that for the supervisory model, the agencies on the analysis the bank provides. the assumptions and results of the propose the data for the supervisory supervisory model would be used as an model be collected from all non-exempt 5. Use of a Bank’s Internal IRR Model explicit benchmark against which banks. While recognizing the reporting The September NPR permitted a bank internal models would be judged and burden that this imposes, the agencies to use the results of its internal IRR compared. These commenters were believe that collecting data for both model, as an alternative to the concerned that examiners would require internal and the proposed supervisory supervisory model, when assessing its the bank to conduct detailed and model results will be important for need for capital for IRR, provided that ongoing reconciliations between the effective supervision. Moreover, such its model was deemed adequate by the bank’s internal model and the data also will help the agencies evaluate appropriate supervisor. Most supervisory model results. Such the use of both the supervisory model commenters expressed strong support requirements, they believed, imposed and internal models as the basis for for using the results of a bank’s internal unnecessary burdens and lessened the ultimately establishing minimum model and believed that such a model incentives for banks to use their own capital charges for IRR. By monitoring would provide a more accurate IRR models. Commenters raising these the maturity and repricing data assessment of risk than the proposed concerns generally urged the agencies to collected for the supervisory model, the supervisory model. refrain from imposing supervisory agencies will be able to assess whether The proposed policy statement model assumptions on bank models and supervisory and internal models results provides for the consideration of a from requiring banks that have their capture major shifts in portfolio bank’s internal model results in the own internal model to report the compositions. Such monitoring may assessment of that bank’s level of IRR information required for the supervisory help identify key model assumptions exposure and its need for capital. The model. that should be highlighted for examiner results and quality of a bank’s IRR A key issue for the agencies, and one review and common strengths or measurement process will be one factor reason for delaying the implementation weaknesses of internal measures when that examiners will consider in of explicit minimum capital standards compared to the supervisory model. assessing a bank’s need for capital. for IRR, is the degree of specification the This information will help the agencies Among the factors that an examiner will agencies need to establish when internal to provide better guidance to examiners consider when evaluating the quality of models are used for assessing regulatory and bankers on acceptable risk a bank’s internal model is whether the capital adequacy. The agencies are measurement techniques. It will also risk profile it generates is an adequate aware that there are a variety of assist the agencies in determining what, measure of the bank’s risk position, measurement systems and assumptions if any, improvements could be made to taking account of the types of in use by the industry to measure the proposed supervisory model before instruments held or offered by the bank, exposures. While such variation may be explicit minimum capital charges are the integrity and completeness of the appropriate given the diverse nature of implemented. data used in the model, and whether the commercial banks, it may lead to assumptions and relationships different assessments of risk and hence, V. Reporting Requirements underlying the model are reasonable. capital requirements, for institutions The implementation of this policy When assessing the exposure of a bank’s that have similar risk profiles. More statement relies on changes to the Call economic value to changes in interest explicit guidance from the agencies on Report. The examples of Call Report rates, examiners generally will place acceptable techniques and assumptions schedules shown in this proposal and greater reliance on the results of a could help to lessen this variation and the accompanying draft reporting bank’s internal model, rather than the the risk that different amounts of capital instructions for those schedules are supervisory model, provided that the may be required for banks with similar provided to assist the reader in bank’s own model: portfolios. Such guidance also would analyzing the full implications of the (1) Measures IRR from an economic help reduce inconsistencies among proposal. Once comments are received perspective, as defined in this proposal; examiners and agencies in evaluating on the measurement framework and any Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39503 modifications that the agencies believe model, the results of which, would be b. Are the proposed maturity limits are appropriate are made, the proposed one factor that an examiner would use reasonable for a standardized reporting Call Report schedules would also be to assess a bank’s level of IRR exposure and measurement framework? amended to reflect those changes. At and its need for capital. The baseline c. Is it appropriate to give examiners that time, the Call Report schedules model uses seven time bands and latitude to use a bank’s own non- would be submitted to FFIEC’s Reports applies a series of risk-weights to a maturity deposit assumptions? If so, Task Force for inclusion in the comment bank’s reported repricing and maturities should the agencies specify minimum document for March 1996 Call Report balances in each of those time bands. standards of analysis that will be changes. The FFIEC will submit any For certain types of instruments or acceptable for banks that wish to use Call Report changes to OMB for review activities, a bank would be required to their own assumptions? What types of as required under the Paperwork provide their own estimate of the analyses or factors should be Reduction Act 44 U.S.C. 3501. change in value (self-report) of the incorporated into such standards? Opportunity for public comment is instruments or activities for the 4. Supplemental Modules for Mortgage always provided in relation to such a specified interest rate scenario. Holdings submission. Nevertheless, the agencies a. Does the proposed baseline invite comments regarding the supervisory model provide a reasonable The agencies have proposed paperwork implications of this basis for measuring a bank’s IRR supplemental reporting and expanded proposed policy statement, and will exposure? If not, what changes should risk-weight tables that would apply to carefully consider any comments be made to the model? banks that have concentrations in either received in the development of the b. Are the amount and type of data fixed- or adjustable-rate residential policy, as well as in recommending to proposed to be collected for the model mortgage products. These supplemental the FFIEC proposed revisions to the Call appropriate and reasonable? If not, what modules are designed to improve the Report. changes could be made either to supervisory model’s accuracy by incorporating more fully, the parameters VI. Implementation Schedule improve the usefulness of the data collected and/or reduce the burden of which may affect a mortgage’s price The agencies propose to require any the proposal? sensitivity. The agencies propose to derive the risk-weights for the additional reporting by non-exempt c. Do banks have the ability to supplemental modules from pricing banks beginning with the March 1996 calculate or obtain reasonable estimates tables generated by the OTS’s Net Call Reports. Full implementation of of changes in market values for the Portfolio Value Model (OTS model). this policy statement for assessing the items where self-reporting would be a. Is the information that would be adequacy of bank capital would be required? If not, how should such items collected for the supplemental modules effective December 31, 1996. be incorporated into the model? What appropriate and meaningful? If not, factors should examiners consider in VII. Requests for Comments what changes should be made? reviewing and assessing the reliability Comments are requested on all b. Are the thresholds proposed for of bank’s self-reported estimates? aspects of the proposed policy requiring a bank to use the d. Are the risk-weights proposed for statement, including the suggested supplemental modules appropriate? If the baseline model appropriate for an implementation schedule. The agencies not, what threshold would be immediate and parallel 200 basis change particularly request comments on the appropriate? in interest rates? following issues: c. Do the supplemental modules and e. What portion, if any, of the risk-weights sufficiently address 1. Exemption for Small Banks proposed Call Report interest rate risk concerns about the supervisory model’s The agencies propose to exempt data and output from the proposed accuracy for banks with significant certain small banks from the proposed supervisory measurement system holdings of residential mortgage policy statement and associated should be made available to the public products? Will their use lessen the reporting requirements in order to through Call Report disclosures and the possibility of different regulatory lessen regulatory burdens on small, Uniform Bank Performance Report? treatment for institutions subject to the well-managed banks. The criteria for 3. Treatment of Non-Maturity Deposits OTS model and those subject to this exemption considers the size of the policy statement? bank, its overall CAMEL rating and the The agencies propose limits on how a d. Will the use of the supplemental proportion of assets in intermediate and bank could distribute deposits without modules and the associated risk-weights longer-term maturities. specified maturities (DDA, NOW, used in those modules provide a. Are the three criteria used for the MMDA and savings) among the time appropriate incentives for bank exemption appropriate and reasonable? bands for the supervisory model. In decision-making? Will their use b. Does the use of a bank’s setting these limits, the agencies discourage the development of a bank’s confidential CAMEL rating as one of the propose to treat commercial DDA own measurement capabilities? exemption criteria raise concerns that it balances separately from other DDA e. Is the OTS model a reasonable may allow public users of Call Reports balances. As proposed, these limits only source for developing the risk-weights to discern a bank’s CAMEL rating? apply to the standardized supervisory used in this module? If not, are there c. Does the proposed exemption model. The proposal would give an other sources that would be more better? criteria provide adequate safeguards examiner the latitude to use a bank’s f. The agencies believe the against exempting banks that pose own non-maturity deposit assumptions supplemental schedules related to significant risks to the deposit insurance when evaluating the bank’s capital mortgages are necessary because the fund due to IRR? adequacy for IRR provided that the bank price sensitivity of these products may can demonstrate and support those vary substantially depending upon their 2. Baseline Supervisory Model assumptions. coupon and cap characteristics. Are the The agencies are proposing that all a. Is it appropriate to treat commercial proposed supplemental schedules non-exempted banks provide DDA balances separately from other appropriate and is the level of precision information for a baseline supervisory DDA balances? sought by the agencies reasonable? 39504 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 5. Frequency of Updating Risk-Weights and liabilities sufficiently mitigate the appendix provides technical In the interest of minimizing materiality of such errors? If not, what descriptions of the derivation of the regulatory burden and providing greater other approach(es) would be model’s risk weights and the transparency and certainty for the appropriate? supplemental modules for residential mortgage-related products. supervisory model, the agencies propose 7. Use of Internal Models to update the risk weights for the a. Does the proposed policy statement Proposed Policy Statement baseline and supplemental schedules provide appropriate incentives for the I. Purpose only in the event of a significant use of banks’ internal models and for This supervisory policy statement is movement in market rates or other banks to enhance their internal risk adopted by the Office of the Comptroller market factors that materially change measurement systems? the accuracy of the derived price b. Are the criteria described for of the Currency (OCC), the Board of sensitivities and associated risk weights. assessing a bank’s internal model Governors of the Federal Reserve The OTS, in contrast, recalculates the appropriate? What other factors or System (Board) and the Federal Deposit price sensitivities for its model each criteria should examiners consider in Insurance Corporation (FDIC), quarter in order to achieve the precision assessing and reviewing a bank’s collectively, the ‘‘agencies.’’ The it believes necessary to distinguish internal model results? statement establishes a supervisory among different coupon rates of c. Should the agencies provide framework that the agencies will use to mortgage and other products. additional guidelines on acceptable assess and measure the interest rate risk a. Does the agencies’ intention to limit parameters, assumptions, and (IRR) exposures of insured commercial the updating of risk-weights represent methodologies for internal models? and FDIC supervised savings banks. The an appropriate balance among the What types of guidance would be most results of this measurement framework objectives of minimizing regulatory useful? will be used by the agencies in their burden, providing transparency and d. Is the proposed voluntary schedule evaluation of a bank’s IRR exposure and certainty, and providing sufficient for reporting internal model results whether it needs capital for IRR. Each measurement accuracy? If not, what appropriate? Are there sufficient agency has additional guidance and other approaches would be appropriate? incentives for banks to provide this policies on the measurement and b. Does this limitation on updating information on a voluntary basis? management of IRR. Those policies and risk weights materially reduce the guidelines set forth each agency’s benefits and accuracy that the 8. Treatment of Trading Account expectations regarding safe and sound supplemental schedules for mortgages The agencies propose that banks ‘‘self- banking practices for IRR management. are designed to provide? report’’ the change in value of their This policy statement does not replace c. The supplemental reporting trading account activities for a 100 basis or supersede those issuances. The schedule for fixed-rate mortgages point change in interest rates. The adoption of this policy statement by the proposes to collect balance information agencies also are considering whether agencies does not replace the agencies’ by set coupon ranges. An alternative trading account activities should be expectations that all insured depository that the agencies have considered is to excluded from this policy statement and institutions have internal IRR collect balances on the basis of their IRR measure if a bank is subject to the measurement and management distance from prevailing current market market risk capital requirements as processes that are commensurate with coupons. Such a treatment would allow proposed by the Basle Committee. the nature and level of their IRR the risk weight applied to any given a. Is the 100 basis point interest rate exposures. mortgage coupon to vary as its spread to scenario that the agencies propose to II. Background current mortgage rates varies. Would use when measuring the IRR exposure such a treatment be an improvement in a bank’s trading portfolio Interest rate risk is the adverse effect over the approach currently proposed appropriate? If not, what scenario would that changes in market interest rates by the agencies? What, if any, be appropriate? have on a bank’s earnings and its difficulties would be encountered in b. What modifications, if any, should underlying economic value. Changes in reporting balances on the basis of their be made to this proposal for banks that interest rates affect a bank’s earnings by spread to current mortgage coupons? may be subject to the Basle Committee’s changing its net interest income and the proposed capital standards for market level of other interest-sensitive income 6. Use of Carrying Values risk in trading activities? What, if any, and operating expenses. The underlying In the interest of simplicity, the operational problems would be created economic value of the bank’s assets, agencies propose to apply the risk if such banks were simply exempted liabilities, and off-balance sheet weights, including those derived from from including and reporting their instruments also are affected by changes the OTS price sensitivities, to the trading activities for purposes of this in interest rates. These changes occur carrying value of a bank’s instruments. policy statement? What, if any, because the present value of future cash To the extent that the carrying and competitive issues would such a flows and in some cases, the cash flows market values differ, this introduces an treatment present? themselves, change when interest rates error in the estimated price sensitivity The text of the proposed policy change. The combined effects of the of an instrument. The price sensitivity statement follows. The first two changes in these present values reflect of instruments whose market values appendices to the proposed policy the change in the bank’s underlying exceed their carrying values will be statement provide proposed reporting economic value. understated whereas the price schedules and accompanying Interest rate risk is inherent in the role sensitivity of instruments whose market instructions for those schedules that are of banks as financial intermediaries. values are below carrying values will be under consideration by the agencies as Interest rate risk, however, introduces overstated. part of this proposed policy statement. volatility to bank earnings and to the a. Is the use of carrying values an The third appendix provides the risk economic value of the bank. A bank that appropriate simplification and does the weights that would be used in the has an excessive level of IRR can use of carrying values for both assets proposed supervisory model. The fourth diminish its future earnings, impair its Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39505 liquidity and capital positions, and, III. Definitions and Applicability (1) The total assets of the bank are less ultimately, jeopardize its solvency. than $300 million, and; A. Definitions The agencies believe that safety and (2) The bank’s primary supervisor has soundness requires effective For the purpose of this policy assigned it a composite CAMEL rating of management and measurement of IRR, statement, the following definitions either ‘‘1’’ or ‘‘2’’; and and each agency has provided apply: (3) The sum of: supervisory guidance to banks and (1) Interest Rate Risk Exposure means (a) 30% of the bank’s fixed- and examiners on this subject. In addition, the estimated dollar decline in the floating-rate loans and securities that the agencies believe that a bank’s capital economic value of the bank in response have contractual maturity or repricing adequacy should be assessed in the to a potential change in market interest dates between 1 and 5 years, and (b) 100% of the bank’s fixed- and context of the risks it faces, including rates under the specified interest rate floating-rate loans and securities that interest rate risk. Both of these aspects scenarios, as measured by either the have contractual maturity or repricing of IRR depend, among other things, on supervisory measure or, where dates beyond 5 years, a meaningful measurement of the bank’s applicable, a bank’s internal model. risk exposure. (2) Economic value of the bank means is less than or equal to 30% of the The agencies believe that a bank the net present value of its assets, minus bank’s total assets. Notwithstanding this exemption, the should have an IRR measurement the net present value of its liabilities, appropriate bank supervisor may apply system that is commensurate with the plus the net present value of its off- any or all provisions of this policy nature and scope of its IRR exposures. balance-sheet instruments. (3) Interest rate scenarios means the statement to a bank if the supervisor Among the difficulties in performing a specified changes in market interest deems such application is necessary to supervisory evaluation of interest rate rates used in calculating a bank’s IRR ensure the capital adequacy of the bank. risk, however, is that measurement exposure. This means that a bank which otherwise systems and management philosophies (4) Mortgage derivative products meets the exemption criteria may be can differ significantly from one bank to means interest-only and principal-only required by the agencies to provide another. As a result, although two banks stripped mortgage-backed securities (IOs maturity and repricing data needed for may each be well-managed, their and POs), tranches of collateralized the supervisory model. The agencies measured exposure may not be directly mortgage obligations (CMOs) and real would intend to invoke this requirement comparable. This difficulty has been estate mortgage investment conduits only in circumstances where a bank magnified by the rapid pace of change (REMICS), CMO and REMIC residual appears to have excessive IRR levels and in financial markets and instruments securities, and other instruments having lacks sufficient internal risk measures themselves. In light of the rapid the same characteristics as these such that a determination of its need for evolution in financial instruments and securities. capital cannot be adequately assessed by practices, the agencies believe there is a (5) Net risk-weighted position means the agencies. Banks that are exempted need for the more formal assessment of the sum of all risk-weighted positions of from the provisions of this policy banks’ IRR exposures that this policy a bank’s assets, liabilities and off- statement would continue to be subject statement establishes. balance sheet items, plus the estimated to safety and soundness IRR The measurement framework change in market values for any self- examinations and, as a result of such described in this policy statement reported items. For the purposes of the exams, could be directed by their focuses on the exposure to a bank’s supervisory measure, this number supervisor to improve or strengthen underlying economic value from represents the amount by which the their risk management practices, or hold movements in market interest rates. The economic value of the bank is estimated additional capital for IRR. exposure to a bank’s economic value, as to change in response to a potential If a previously exempted bank fails to used in this policy statement, is defined change in market interest rates under meet the exemption criteria as of the as the change in the present value of its the specified interest rate scenarios. June reporting date, it would be assets, minus the change in the present (6) Non-maturity deposits mean required to report the necessary data in value of its liabilities, plus the change demand deposit accounts (DDAs), the Reports of Condition and Income in the present value of its interest-rate money market deposit accounts beginning in March of the next year related off-balance sheet positions. The (MMDAs), savings accounts, and regardless of its exemption status for the agencies have chosen this focus because negotiable order of withdrawal accounts remainder of the current year. The one they believe that changes in a bank’s (NOWs). exception to this requirement is a bank economic value best reflect the potential (7) Notional principal amount means that is involved in business effect of embedded options and the the total dollar amount upon which combinations (pooling of interest, potential exposure that the bank’s payments on a contract are based. purchase acquisitions, or current business activities pose to the (8) Structured notes mean those reorganizations) that would result in a bank’s future earnings stream, and instruments identified as structured change in their exemption status. In hence, its ability to sustain adequate notes for Call Report purposes. those instances, the bank will be subject capital levels. Changes in economic (9) Commercial demand deposits to any new reporting requirements value measure the effect that a change mean ‘‘nonpersonal’’ demand deposits beginning with the first quarterly report in interest rates will have on the value as that term is defined under the Board date following the effective date of the of all of the future cash flows generated of Governors of the Federal Reserve business combination involving the by a bank’s current financial positions, System’s Regulation D. bank and one or more depository not just those cash flows which affect institutions. earnings over the few months or B. Applicability and Exemption for quarters. Thus, changes in economic Small Banks With Low Risk C. Specified Interest Rate Scenarios value provide a more comprehensive All banks will be subject to the For the purpose of measuring a bank’s measure of risk than measures which provisions of this policy statement and level of IRR exposure for capital focus solely on the exposure to a bank’s will be expected to provide information adequacy, under either the supervisory near-term earnings. for the supervisory model, unless: model or a bank’s internal model, the 39506 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules agencies will consider both a rising and information on those holdings through step three are contained in the tables in falling interest rate scenario based on an supplemental Call Report schedules. Appendix 3 to this policy statement. instantaneous uniform 200 basis point Supplemental IRR risk weights are C. Information Requirements of the parallel change in market interest rates applied to this information. These Supervisory Model at all maturities. The agencies may, from supplemental reporting schedules and time to time, modify the specified IRR risk weights are referred to as Use of the supervisory model requires interest rate scenarios as appropriate, supplemental modules to the baseline information on the maturity and considering historical and current supervisory model. repricing characteristics of a bank’s interest rate levels, interest rate assets, liabilities and off-balance-sheet volatilities and other relevant market B. Supervisory Model Calculations positions. This information is collected and supervisory considerations. The structure and format of the by the agencies through the quarterly Call Report submissions filed by non- IV. Description of the Supervisory Model supervisory model is designed to allow a bank manager to be able to calculate exempted banks and illustrated by A. Overview the IRR exposure of his or her bank so Schedule 1.7 This reporting schedule The intent of the supervisory model is as to not be dependent upon the requires a bank to report its assets, to provide the agencies with a measure agencies for obtaining model results. liabilities and off-balance-sheet items that estimates the sensitivity of a bank’s The calculation of a bank’s IRR across seven maturity ranges (time economic value to a specified change in exposure using the supervisory model bands) based on the instrument’s time interest rates with sufficient accuracy so generally requires the following steps remaining to maturity or next repricing date. The time bands used: as to allow the agencies to identify (1) The bank’s assets, liabilities, and off- banks that have high IRR exposures. The (1) Less than or equal to 3 months; balance sheet contracts must be assigned to (2) Greater than 3 months and less than or model applies a series of IRR risk the appropriate balance sheet categories equal to 12 months; weights to a bank’s reported repricing based on the instrument’s cash flow (3) Greater than 1 year and less than or and maturity balances. These weights characteristics. equal to 3 years; estimate price sensitivity of a bank’s (2) Within each balance sheet category, (4) Greater than 3 years and less than or reported balances to a 200 basis point each asset, liability or off-balance sheet equal to 5 years; contract must be assigned to the appropriate (5) Greater than 5 years and less than or change in interest rates. The summation time band generally based on each of these weighted balances, along with equal to 10 years; instrument’s remaining maturity or next (6) Greater than 10 years and less than or certain price sensitivity information that repricing date. a bank may be required to self-report, equal to 20 years; (3) Balances within each time band must (7) Greater than 20 years. results in a net risk-weighted exposure be multiplied by the appropriate risk weight for the bank. This net risk-weighted to produce a risk-weighted position for each BILLING CODE 6714±01±P exposure is an estimate of the sensitivity interest rate scenario. of the bank’s economic value to the (4) All risk-weighted positions must be 7 The agencies have not yet recommended to the specified change in interest rates. summed to produce a net risk-weighted Federal Financial Examination Council (FFIEC), The maturity and repricing position for each interest rate scenario which Call Report changes for IRR. The schedules and is the basis for determining the bank’s associated reporting requirements and instructions information contained in the Call Report measured exposure to interest rate risk. that are discussed in this proposed policy statement that all non-exempted banks are and appendix are under consideration by the required to file, along with the IRR risk A bank performs the first two steps in agencies. These items are included in this policy weights that are applied to that its compilation and submission of the statement to provide commenters with a fuller information, form the baseline IRR Call Report schedules. Those understanding of the proposal and to give them supervisory model. Banks with schedules and accompanying opportunities to comment on items under concentrations in fixed- or adjustable- instructions are contained in the consideration by the agencies. The agencies plan to forward to the FFIEC recommended Call Report rate residential mortgage products are Appendices 1 and 2 to this policy changes for IRR. Once final recommendations are required to submit additional statement. The risk-weights required for made by the agencies, the FFIEC will publish the proposed changes for public comment. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39507 BILLING CODE 6714±01±C 39508 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules In the interest of minimizing reporting less than 3 percent that do not involve principal only at maturity. Hence, the burdens, no coupon or yield data are scheduled periodic payments of supervisory model applies the same set collected for the baseline supervisory principal; and of risk-weights to all of a bank’s interest- model. Rather, the model applies (5) All other loans and securities, sensitive liabilities. Bank liabilities general assumptions regarding coupon including loans and securities that differ, however, in the certainty of their rates and other characteristics of the involve only periodic payments of maturity. In particular, many bank underlying assets, liabilities, and off- interest, with payment of principal at liabilities have uncertain or balance-sheet instruments in developing maturity. indeterminate contractual maturities. the interest rate sensitivity weights. Banks holding certain types of assets Given these differences, liabilities with Banks with concentrations in fixed-rate are required to self-report the current contractual maturities are reported or adjustable-rate residential mortgages market value and estimates of the separately from those with are required to provide additional change in market value of these indeterminate contractual maturities. information on those holdings. For instruments for the specified interest The agencies have adopted uniform fixed-rate mortgages, this information rate scenarios. Banks can use either rules for distributing non-maturity includes data on the underlying their internal estimates or estimates deposits accounts across the time bands. coupons of the mortgage assets. For obtained from a reliable third-party These rules specify the longest time adjustable-rate mortgages, the source, provided that the bank knows, band that can be used for each type of information includes data on lifetime understands, and documents the deposit and the maximum percentage and periodic caps. These supplemental assumptions and methodologies used to amount that can be reported into that modules for fixed- and adjustable-rate calculate the estimated market value time band. In its reporting of these mortgages are discussed in Section E of sensitivities. Assumptions, pricing deposits, a bank may distribute such this policy statement. methodologies and all other deposits across the time bands A brief description of how various documentation must be reasonable and according to the bank’s own types of assets, liabilities, and interest- available for examiner review. Self- assumptions and experience, subject to rate related off-balance sheet reporting is used for the following the following constraints: instruments are reported is provided assets: (1) Commercial Demand Deposits: A below. Instructions for completing the (1) All mortgage-backed derivative bank should report 50 percent of its schedules required for the supervisory securities that meet the FFIEC’s commercial demand deposits in the 0– 9 model are provided in the Call Report definition of ‘‘high-risk.’’ 3 month time band. The remaining package issued by the FFIEC.8 (2) All structured notes, as defined in balances may be distributed across the a. Reporting for assets. The price the Call Report instructions; first four time bands, with a maximum sensitivity of a financial instrument is (3) Non-high risk mortgage derivative of 20 percent of total balances in the 3– determined by the instrument’s cash securities when those holdings 5 year time band. represent 10 percent or more of a bank’s flow characteristics. Accordingly, (2) Retail DDA, Savings, and NOW assets. Banks whose holdings are less maturity and repricing data on most Accounts: A bank may distribute the than 10 percent of assets have the assets are collected in one of five balances in these accounts across any of option of either self-reporting or categories that reflect different types of the first five time bands, with a reporting those instruments as non- cash flows: maximum of 20 percent in the 5–10 year (1) Adjustable-rate 1–4 family amortizing securities based on bank time band and no more than 40 percent mortgage instruments, including management’s estimate of the combined in the 3–5 and 5–10 year adjustable-rate mortgage loans and instrument’s current average life. bands. (4) Trading account portfolios. A bank adjustable-rate, pass-through mortgage (3) MMDA Accounts: A bank may should report the change in the securities. This category would not distribute these balances across any of economic value of all of their trading include home-equity loans; those loans the first three time bands, with a account positions for a 100 basis point maximum of 50 percent in the 1–3 year would be reported with other parallel increase and decrease in amortizing loans based on their band. interest rates.10 Within these deposit reporting remaining maturity or next repricing (5) Mortgage servicing rights that are date; parameters, a bank is permitted to use capitalized and reported on the bank’s different distributions of these deposits (2) Fixed-rate 1–4 family mortgages, balance sheet. including both fixed-rate mortgage loans for the rising and falling rate scenarios. b. Reporting for Liabilities. The This flexibility is designed to reflect the and pass-through, fixed-rate mortgage- majority of bank liabilities repay backed securities, again excluding embedded optionality associated with these products. home-equity loans; 9 Effective February 10, 1992 agencies and the c. Reporting for Off-Balance-Sheet (3) Other amortizing loans and Office of Thrift Supervision adopted revised securities, including asset-backed supervisory policies on securities activities that Positions. Off-balance-sheet contracts securities, consumer loans and other were developed under the auspices of the FFIEC. that represent a firm obligation for both easily identifiable instruments that The revised policies established a framework for parties are reported within the maturity identifying ‘‘high-risk mortgage derivative ladder framework using a two-entry involve scheduled periodic amortization products.’’ of principal more frequently than once 10 The agencies expect banks to have prudential approach to reflect how the contract a year; internal risk limits and effective risk measurement alters the timing of cash flows. For (4) Zero- or low-coupon securities, systems for their trading activities. For banks with interest rate swaps, the first entry would significant trading operations, the adequacy and be reported in the time band including securities with coupons of results of those systems will be closely reviewed by examiners and would be incorporated into their corresponding to the next repricing date 8 Draft reporting instructions for the schedules assessment of the bank’s overall risk position. The of the contract, and the second entry under consideration by the agencies are provided in Basle Committee on Bank Supervision is also would be reported in the time band Appendix 2 of this policy statement. As previously considering methods of evaluating IRR in trading corresponding to the maturity of the noted, the schedules and associated reporting accounts and determining appropriate capital requirements and instructions discussed in this requirements. This process could lead to an instrument. For futures, forwards, and proposed policy statement have not been finalized international agreement which would affect the FRAs, the first entry would be reported and submitted to the FFIEC. treatment of trading activities for U.S. banks. in the time band corresponding to Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39509 settlement date of the contract, and the D. IRR Risk Weights weight for each of the three reset second entry would be reported in the Under the supervisory model, a frequency categories, plus one risk- time band corresponding to the bank’s IRR exposure is calculated by weight for those ARMs that are within settlement date plus the maturity of the multiplying its reported repricing and 200 basis points of their lifetime cap; instrument underlying the contract. maturity positions by IRR risk weights. (2) Seven ‘‘Fixed-Rate Residential Contracts that are based on non- These risk weighted positions, when Mortgage’’ risk weights (i.e., one for amortizing instruments are reported summed and added to the sensitivities each time band) for fixed-rate separately from those based on of any self-reported items, form the residential mortgage loans and pass- amortizing principal amounts or on bank’s net risk-weighted position. through mortgage securities; underlying instruments that amortize. Each risk weight is constructed to (3) Seven ‘‘Other Amortizing’’ risk Examples of ‘‘non-amortizing’’ contracts approximate the percentage change in weights for asset-backed securities, include futures, forward-rate value of the reported position that consumer loans and amortizing off- agreements, swaps on which the would result from a 200 basis point, balance-sheet instruments; notional principal amount of the instantaneous and uniform movement (4) Seven ‘‘Zero or Low Coupon’’ asset contract does not amortize, in market interest rates. Separate risk risk weights for instruments with a securitization of credit card receivables weights are used for the rising and coupon of 3 percent or less; under a spread account approach, and falling interest rate scenarios to account (5) Seven ‘‘All Other’’ asset risk firm commitments to buy or sell non- for the asymmetrical price behavior of weights for non-amortizing instruments; mortgage loans or securities. Examples various bank assets, liabilities and off- and, of ‘‘amortizing’’ contracts are balance-sheet instruments. (6) Seven liability risk weights for all commitments to buy and sell mortgages The set of risk weights used in the liability instruments. and commitments to originate mortgage baseline supervisory model for each The risk weights used in the baseline loans. scenario consists of: supervisory model are provided in (1) Four ‘‘ARM’’ risk weights for Self Reporting for Options Table 1 and also in Appendix 3 of the adjustable-rate residential mortgage policy statement. The agencies propose Option-related contracts are not loans and securities. There is one risk to limit the frequency of revisions to the distributed and reported within the time risk-weights such that revisions would bands of the maturity ladder schedule. reported on the basis of their delta-equivalent not be made until such time as market values. The agencies have made this change in the A bank that holds such contracts is rates have moved sufficiently as to required to ‘‘self-report’’ the market treatment of option-related contracts due to their 11 concerns that delta-equivalent values may be prompt a revision of all the risk weights. value sensitivities of those positions. difficult to compute for longer-dated caps and Such changes may occur only once floors, and the limitations of using delta as a proxy every several years. 11 This differs from earlier proposals where the for market value sensitivities when evaluating effect agencies proposed that options-related contracts be of large rate movements. BILLING CODE 6714±01±P 39510 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39511 BILLING CODE 6714±01±C 39512 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules The agencies constructed the risk construct the risk weights for each third party to purchase the loan. Loans weights shown in Table 1 by using category is contained in Appendix 4 of with such binding commitments are hypothetical market instruments that this policy statement. reported separately in Schedule 1 and are representative of the category being receive a risk-weight commensurate E. Description of Supplemental Modules measured. The risk weights are based on with short-term (three months or less) the percentage change in the present Residential mortgage products have non-amortizing instruments. A bank, value of the benchmark instruments for option features that make the value of however, may elect to report these loans the specified interest rate scenario. Risk the instrument more sensitive to interest in the supplemental reporting weights for adjustable- and fixed-rate rate changes than many other types of schedules. residential mortgage loans and financial instruments. To more accurately measure the sensitivity of 1. Fixed-Rate Residential Mortgages: securities were derived from data A bank with fixed-rate residential provided by the OTS (Office of Thrift these products, a bank that has holdings of these instruments in excess of mortgage holdings that exceeds 20% of Supervision) Net Portfolio Value Model its total assets will report as part of its as of September 30, 1994 for use in the specified levels is required to provide additional information on those quarterly Call Report submissions, OTS Asset and Liability Pricing Tables additional information on those published by the OTS. The mortgage holdings in its Call Report submissions. The agencies will apply expanded tables holdings based upon their time risk weights directly incorporate remaining to maturity and coupon rate convexity for the rate scenario and of risk weights to those portfolios when estimating the bank’s IRR exposure. (Schedule 2). The term ‘‘coupon rate’’ prepayment assumptions for mortgage for fixed-rate mortgage loans refers to loans and securities.12 A complete Both one-to-four family residential mortgage loans and pass-through the loan’s stated coupon rate, while for description of the instruments and pass-through securities, it refers to the methodologies used by the agencies to securities are considered mortgage holdings for these supplemental weighted average coupon (WAC) of the modules. Mortgage loans that a bank has underlying mortgages. For each maturity 12 Convexity refers to the non-linear price/yield and coupon range, the agencies have relationship of fixed-rate financial instruments. funded but holds for sale do not need Instruments without option features, such as to be reported in the supplemental developed and will apply risk weights Treasury notes, have positive convexity, meaning modules or included in the calculation which reflect the differences in that as the price of the instrument falls, its yield of a bank’s holdings of mortgage expected price sensitivities that are will increase by a proportionately greater amount. associated with each coupon range. Other instruments, such as certain mortgage-backed products provided that the bank has a securities, have negative convexity. firm and binding commitment from a BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39513 BILLING CODE 6714±01±C 39514 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 2. Adjustable-Rate Residential Consequently, information on both the to 1 year column, by the size of the Mortgages: Adjustable-rate mortgage periodic cap and the lifetime cap will be periodic cap. The distance to the loans and securities have price collected from banks with significant lifetime cap is stratified into four sensitivities that are substantially ARM holdings. groups: different than fixed-rate mortgage assets A bank with ARM holdings greater (1) ARMs that are within 200 basis primarily due to their coupon reset than 10% but less than 25% of its total points of their lifetime caps; features. The coupon adjustments are assets will through its Call Report (2) ARMs that are 201 to 400 basis generally limited by caps and floors submissions, provide additional points from their lifetime caps; information on those holdings both for the life of the mortgage and also (3) ARMs that are 401 to 600 basis (Schedule 3). The bank will report its at their rest period. These caps are points from their lifetime caps; known as lifetime and period caps. In ARM balances by the ARM’s reset (4) ARMs that are more than 600 basis general, there are three factors that most frequency, the nature of its periodic cap, points from their lifetime caps. influence the price sensitivity of an and the distance to its lifetime cap. ARM: the reset frequency, the periodic ARM balances will be reported for the A bank whose ARM holdings exceed cap, and the lifetime cap. The three reset frequencies (6 months or 25% of its total assets will provide relationship between the periodic and less, over 6 months but less than or further information on its ARM lifetime caps and the effect of that equal to 1 year, and over 1 year). The balances, including information on the relationship on ARM prices is complex three reset frequencies are divided by ARM’s index type and weighted average and varies based upon the likelihood whether or not the ARM carries a coupon, as illustrated by Schedule 4. that either cap will become binding. periodic cap, and in the over 6 months BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39515 39516 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39517 V. Calculation of IRR Exposure (4) Whether the model considers all management process will play an A bank’s IRR exposure is calculated relevant repricing data, including integral role in determining a bank’s for both the rising and declining interest information on contractual maturities need for capital for IRR. Banks with rate scenarios. The exposures derived and repricing dates, contractual interest high levels of measured exposure or for each scenario may differ in rate floors and/or ceilings; weak management systems generally magnitude due to asymmetries in the (5) Whether the model measures the will need to hold capital for IRR. The price sensitivity of financial instruments bank’s IRR exposure over a probable specific amount of capital that may be as interest rates change (e.g., convexity). range of potential interest rate changes, needed will be determined on a case-by- For each scenario, the first step in including but not limited to, the rate case basis by the examiner and the computing a bank’s IRR exposure is to scenarios established in this policy appropriate supervisory agency. This multiply each reported repricing or statement; determination and the examiner’s maturity position (as reported in (6) Whether the assumptions and overall conclusions regarding IRR will Schedules 1, 2, 3 or 4) by the structure of the model are reasonable, be discussed with bank management at appropriate risk weight. This product, documented and periodically reviewed the close of each examination. referred to as the ‘‘risk weighted and validated by an appropriate level of During the intervals between position,’’ represents the estimated senior management that has sufficient examinations, the agencies will use the dollar change in the present value of independence from units that take or supervisory model to help monitor that position for the 200 basis point rate create IRR exposures; changes in a bank’s IRR exposure. scenario. The next step is to sum all of (7) Whether the results of the model Significant changes in reported the risk weighted positions and add to are communicated to and reviewed by exposures or in a bank’s overall these positions the sensitivities of any senior management and the institution’s financial condition will be analyzed by self-reported items. This result, referred Board of Directors on at least a quarterly the bank’s primary supervisor to to as the ‘‘net risk weighted position,’’ basis. determine whether additional supervisory actions are warranted. Such represents the estimated change in the VII. Use of Measurement Process Results economic value of the bank and is the actions may include additional The results of the measurement bank’s IRR exposure for the that rate discussions with bank management, process established by this policy scenario. requests for additional information, on- Appendix 1 provides example statement will be one factor that an site reviews of the bank, and worksheets and IRR calculations for examiner will use when evaluating a reevaluation of the bank’s capital hypothetical banks subject to the bank’s capital adequacy with regards to adequacy. IRR. In reviewing a bank’s capital baseline and supplemental modules. Appendix 1—Proposed Call Report adequacy, an examiner will consider the Schedules and Supervisory Model VI. Use of a Bank’s Internal IRR Model exposure of the bank’s capital and Worksheets Results economic value to changes in interest The supervisory model set forth in rates, as measured by the supervisory This appendix contains sample call this policy statement is one tool that model and, where applicable, the bank’s report schedules and worksheets that examiners will use to assess a bank’s internal model. Other factors that an would be used for the proposed level of IRR exposure and its need for examiner will consider include the supervisory model. As noted in the capital. Examiners also will consider the quality of a bank’s IRR management, proposed policy statement, the IRR exposures that are indicated by the internal controls, and the overall schedules shown in this appendix are bank’s internal IRR model. The agencies financial condition of the bank, under consideration by the agencies but recognize that many banks have including its earnings capacity, capital have not yet been submitted to the sophisticated internal models for base, and the level of other risks which FFIEC for approval. These schedules measuring IRR that take account of may impair future earnings or capital. and worksheets are included in this complexities that are not captured by When assessing the adequacy of the document to provide readers and the supervisory model and that are bank’s IRR management process, an commenters a better understanding of tailored to the products, activities, and examiner will consider: the proposed supervisory risk circumstances of each bank. In cases (1) The adequacy and effectiveness of measurement system. where the bank’s internal model senior management and Board I. Sample Call Report Schedules provides a more accurate assessment of oversight; the bank’s IRR exposure, the results of (2) The adequacy of and compliance Schedule 1 illustrates the information that model will be the primary basis for with the bank’s policies, procedures and that would be collected from all banks an examiner’s conclusion about the internal controls; that do not meet the reporting bank’s level of IRR exposure. (3) The existence of and adherence to exemption criteria. This information Factors that examiners will consider specific risk limits relating to loss of would be used for the baseline in determining whether a bank’s capital; supervisory model. Schedules 2–4 internal model provides a more accurate (4) Management’s knowledge and illustrate the information that would be assessment of the bank’s IRR profile ability to identify and manage sources of collected from non- exempt banks that than the supervisory model include: IRR effectively; and have concentrations in fixed- or (1) Whether the bank’s internal model (5) The adequacy of internal risk adjustable-rate residential mortgage is appropriate to the nature, scope, and measurement and monitoring systems. loans or pass-through securities. This complexities of the bank and its At the completion of each safety and information would be used in lieu of the activities; soundness examination, examiners will items for these portfolios on Schedule 1. (2) Whether the model includes all form and document conclusions as to The balances reported in the material IRR positions of the bank; the adequacy of a bank’s capital and risk supplemental schedules would be (3) Whether the model provides a management process with regard to subjected to the expanded set of risk more precise measurement of the interest rate risk. An examiner’s weights shown in Appendix 3. Draft changes in the economic value to the conclusions about both the level of risk reporting instructions for Schedules 1– bank than the supervisory model; and the adequacy of the risk 4 are provided in Appendix 2. 39518 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Schedule 5 illustrates the information on a bank’s internal IRR model results that the agencies propose to collect on a voluntary and confidential basis. A bank that has an internal IRR model that measures the bank’s economic exposure for a 200 basis point parallel rate shock would provide summary information on the estimated change in value for various asset, liability, and off-balance- sheet categories. BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39519 39520 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39521 39522 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39523 BILLING CODE 6714±01±C 39524 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules II. Baseline Supervisory Model category. The risk weights represent the rates increase by 200 basis points. Thus, Worksheet estimated percentage change in the the estimated decline in value for Bank To illustrate how a bank’s IRR value of the reported balances for a 200 A’s reported ARM balances near lifetime exposure would be calculated under the basis point rise (Table 1A) and decline caps is approximately $242 thousand baseline supervisory model, the (Table 2A) in interest rates. For ($3.458 million times¥7.00%). Note following worksheets are provided for a example, the value of a 3- to 5-year non- that for self-reported items, no hypothetical bank (Bank A) that is not amortizing loan or security, as shown in multiplication is needed. Rather, the exempted from reporting (see policy Item 6(d) is estimated to decline by estimated dollar change in value statement) and has filed the proposed 6.60% if interest rates increase by 200 reported by the bank in Schedule 1A is Schedule 1. Since Bank A’s fixed-rate basis points and increase in value by incorporated directly into the exposure residential mortgage loan and security 7.10% if rates decline by 200 basis estimate. holdings are less than 20% of its total points. The risk weights shown in Bank A’s net IRR exposure is assets and its adjustable-rate holdings Column B are established by the calculated by summing the individual are less than 10% of total assets, it is not agencies and published in Appendix 3 risk-weighted positions and self- subject to any the supplemental to this policy statement. Because reported change amounts shown in reporting schedules. Schedule 1A shows liabilities represent future obligations of Column C. The sum of the risk-weighted the completed Schedule 1 for Bank A. the bank, the risk-weights used for asset positions plus self-reported items Tables 1A and 2A are the baseline liabilities are shown as positive for Bank A indicates a decline in value model worksheets for the rising and numbers for the rising rate scenario for these portfolios of approximately falling rate scenarios, respectively for (representing a benefit to the bank) and $17.560 million under the rising rate Bank A. negative numbers for the declining rate scenario. This decline is partially offset Column A in Tables 1A and 2A scenario. by $11.093 million and $0.266 million combine and transcribe the balance Column C in Tables 1A and 2A increases in value for liabilities and information that Bank A reported. For represents the estimated dollar change other off-balance sheet items, example, Bank A reported $4.126 in the present value of each reported respectively. Bank A’s net risk-weighted million of fixed-rate mortgage securities balance. These values are obtained by position is the sum of these items and and $5.432 million of fixed-rate multiplying the reported balance in indicates that the economic value of mortgage loans that had maturities of Column A by the corresponding risk Bank A is expected to decline by $6.201 10- to 20-years. These balances have weight in Column B. For example, Bank million under the rising rate scenario. been combined and reported in Item 1(f) A has $3.458 million in ARMs that are Conversely, under the declining rate in Tables 1A and 2A. near their lifetime caps (line 2(d) in scenario, the economic value of Bank A Column B in Tables 1A and 2A shows Tables 1A and 2A). The agencies have is expected to increase by $10.103 the supervisory model risk weights for estimated that the value of such ARMs million. each instrument type and maturity will decline by approximately 7.00% if BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39525 39526 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39527 BILLING CODE 6714±01±C 39528 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules III. Supplemental Module Worksheets rate mortgages) and Schedule 4 reported in Schedules 1B, 2B and 4B. The calculation of net IRR exposure (adjustable-rate mortgages). Bank B uses Column B shows the applicable risk- for a bank using the supplemental these schedules because both its fixed- weights for each instrument and schedules is similar to the process rate and adjustable-rate residential maturity category. Column C reflects the described for the baseline model. The mortgage loans and pass-through estimated dollar change in value for primary difference is that the risk- securities holdings exceed 25% of its each portfolio. The only difference in weighted positions for the applicable total assets. Schedules 1B, 2B and 4B this worksheet and the one used for the residential mortgage portfolios are (corresponding to the proposed baseline model is that risk-weighted derived from the supplemental Schedules 1, 2 and 4) show the data that positions in Column C for the fixed- and schedules and expanded risk-weight Bank B has reported. Table 1B is the adjustable-rate mortgages are obtained tables rather than from baseline worksheet used to calculate Bank B’s by applying the expanded set of risk- schedules. IRR exposure for the rising rate scenario. weights (provided in Appendix 3) to the To illustrate the calculation, This worksheet is similar to the balances reported in Schedules 2B and worksheets are provided for a worksheets used for the baseline model. 4B. hypothetical bank (Bank B) that has Column A combines and transcribes the filed supplemental Schedule 2 (fixed- balance information that Bank B BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39529 39530 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39531 Table 2B illustrates how the change in block of information shows the net risk- interest rates increase by 200 basis value for Bank B’s fixed-rate mortgage weighted position for each coupon and points. Thus, the estimated decline in portfolio is calculated. The first block of maturity category and is derived by the value of these balances is $79 information in Table 2B is the balances multiplying the balances shown in the thousand, the product of $1.008 million that Bank B reported in Schedule 2B. first block by the corresponding risk- times¥7.80%. The change in value for Note that the total balance shown in the weight in the second block. For each maturity and coupon category are right-hand corner of Table 2B, $144.245 example, Bank B has $1.008 million of summed to produce a net change in million, corresponds to the total balance fixed-rate balances with a maturity of 5– Bank B’s fixed-rate mortgage portfolio of shown in Column A for line 1 in Table 10 years and coupons between 6.76 and ¥$13.796 million. This amount is 1B. The second block of information 7.25 percent. The agencies have transcribed to Column C in line 1 for the reproduces the risk-weights shown in estimated the present value of such worksheet shown in Table 1B. Appendix 3 for Schedule 2. The last balances will decline by 7.80% if SCHEDULE 2B.ÐBANK BÐFIXED-RATE MORTGAGES [Supplemental Reporting Schedule] [To be completed by banks with FRM holdings > 20% of total assets] Remaining time to maturity (Column B) (Column C) Balance with coupons of: (Column A) over 5 over 10 (Column D) 5 years or years years over 20 less through 10 through 20 years years years 2. <=6.75% ...... $149 $246 $1,284 $9,362 3. 6.76%¥7.25% ...... 793 1,0008 2,451 10,041 4. 7.26%¥7.75% ...... 726 1,095 2,068 13,498 5. 7.76%¥8.25% ...... 833 1,163 1,984 15.984 6. 8.26%¥8.75% ...... 623 1,994 2,201 16,498 7. 8.76%¥9.25% ...... 511 2,541 2,468 27,375 8. 9.26%¥9.75% ...... 336 2,006 1,604 19,230 9. >=9.75% ...... 597 736 948 1,892 TABLE 2B.ÐBANK BÐFIXED-RATE MORTGAGES [Supplemental Reporting Worksheet] Balance from Schedule 2B Remaining time to maturity (Column B) (Column C) Balance with coupons of: (Column A) over 5 over 10 (Column D) Total 5 years or years years over 20 less through 10 through 20 years years years 2.<=6.75% ...... $149 $246 $1,284 $9,362 $11,041 3. 6.76%±7.25% ...... 793 1,008 2,451 10,041 14,293 4. 7.26%±7.75% ...... 726 1,095 2,068 13,498 17,387 5. 7.76%±8.25% ...... 833 1,163 1,984 15,984 19,964 6. 8.26%±8.75% ...... 623 1,994 2,201 16,498 21,316 7. 8.76%±9.25% ...... 511 2,541 2,468 27,375 32,895 8. 9.26%±9.75% ...... 336 2,006 1,604 19,230 23,176 9. >9.75% ...... 597 736 948 1,892 4,173 Total ...... 4,568 10,789 15,008 113,880 144,245 Risk WeightsÐRising Rates Remaining time to maturity (Column B) (Column C) (Column A) over 5 over 10 (Column D) Balance with coupons of: 5 years or years years over 20 less through 10 through 20 years (percent) years years (percent) (percent) (percent) <=6.75% ...... ¥6.00 ¥7.90 ¥8.90 ¥12.30 6.76%±7.25% ...... ¥5.90 ¥7.80 ¥8.80 ¥11.90 7.26%±7.75% ...... ¥5.70 ¥7.60 ¥8.50 ¥11.50 7.76%±8.25% ...... ¥5.50 ¥7.20 ¥8.20 ¥11.00 39532 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Risk WeightsÐRising Rates Remaining time to maturity (Column B) (Column C) (Column A) over 5 over 10 (Column D) Balance with coupons of: 5 years or years years over 20 less through 10 through 20 years (percent) years years (percent) (percent) (percent) 8.26%±8.75% ...... ¥5.20 ¥6.80 ¥7.70 ¥10.30 8.76%±9.25% ...... ¥4.70 ¥6.10 ¥7.10 ¥9.50 9.26%±9.75% ...... ¥4.10 ¥5.40 ¥6.40 ¥8.50 >=9.75% ...... ¥3.00 ¥3.90 ¥4.90 ¥6.30 Net Position (Balance × Risk Weight) ($) Remaining time to maturity (Column B) (Column C) Balance with coupons of: (Column A) over 5 over 10 (Column D) Total 5 years or years years over 20 less through 10 through 20 years years years <=6.75% ...... ($9) ($19) ($114) ($1,152) ($1,294) 6.76%±7.25 ...... (47) (79) (216) (1,195) (1,536) 7.26%±7.75% ...... (41) (83) (176) (1,552) 1,853) 7.76%±8.25% ...... (46) (84) (163) (1,758) (2,050) 8.26%±8.75% ...... (32) (136) (169) (1,699) (2,037) 8.76%±9.25% ...... (24) (155) (175) (2,601) (2,955) 9.26%±9.75% ...... (14) (108) (103) (1,635) (1,859) >=9.75% ...... (18) (29) 46) (119) (212) Total ...... (231) (693) (1,162) (11,711) (13,796) BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39533 BILLING CODE 6714±01±C 39534 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Tables 3B–6B illustrate how the ARMs on Schedule 4B. The second points of their lifetime cap and that also change in value for Bank B’s ARM block of information reproduces the have a periodic cap. These balances holdings is calculated. Table 3B shows applicable risk weights for this product have a weighted average coupon of the calculation for the Bank B’s ARMs in the rising rate scenario from 5.60%. The applicable risk-weight for that are priced off of the current market Appendix 3. The highlighted risk these mortgages is the one shown for index and have heset frequencies or 6 weights represent the risk weights ARMs with these characteristics and a months or less. Table 4B shows the applied to the balances and coupon data weighted average coupon between 4.76 similar calculation for the current reported by Bank B in Schedule 4B. The and 6.25 percent, or —8.70%. The market-indexed ARMs with reset third block of information is the net decline in value for these mortgage loan frequencies of 6 months to 1 year while position for each category of ARMs, balances is $263 thousand, the product Table 5B is for the current market- representing the estimated decline in of the balance ($3.023 million) times the indexed ARMs with reset frequencies value for a 200 basis increase in interest applicable risk weight (¥8.70%). rates. The net position is derived by over 1 year. Table 6B is for Bank B’s Similar calculations are used to for the lagging market-indexed ARMs. The multiplying the balance shown in the remaining balances reported in Tables steps for calculating the change in value first block by the corresponding risk- 3B–6B. The total amounts are then for each of these sub-portfolios is weight in the second block. For summed ($2.372 million) and reported identical so only Table 3B is described. example, Bank B has $3.023 million of The first block of information on current market-indexed ARMs that have in Column C of the worksheet in Table Table 3B is the balance and coupon data a reset frequency of 6 months or less 1B. that Bank B reported for this category of that are currently within 200 basis BILLING CODE 6714±01±P Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39535 39536 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39537 39538 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39539 Tables 7B–12B show the calculations for Bank B’s IRR exposure for the declining rate scenario. BILLING CODE 6714±01±P 39540 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 6714±01±C Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39541 TABLE 8B.ÐBANK BÐFIXED-RATE MORTGAGES [Supplemental Reporting Worksheet] Balance from Schedule 2B Remaining time to maturity (Column B) (Column C) Balance with coupons of: (Column A) over 5 over 10 (Column D) Total 5 years or years years over 20 less through 10 through 20 years years years 2. <=6.75% ...... $149 $246 $1,284 $9,362 $11,041 3. 6.76%±7.25% ...... 793 1,008 2,451 10,041 14,293 4. 7.26%±7.75% ...... 726 1,095 2,068 13,498 17,387 5. 7.76%±8.25% ...... 833 1,163 1,984 15,984 19,964 6. 8.26%±8.75% ...... 623 1,994 2,201 16,498 21,316 7. 8.76%±9.25% ...... 511 2,541 2,468 27,375 32,895 8. 9.26%±9.75% ...... 336 2,006 1,604 19,230 23,176 9. >9.75% ...... 597 736 948 1,892 4,173 Total ...... 4,568 10,789 15,008 113,880 144,245 Risk WeightsÐDeclining Rates Remaining time to maturity (Column B) (Column C) (Column A) over 5 over 10 (Column D) Balance with coupons of: 5 years or years years over 20 less through 10 through 20 years (percent) years years (percent) (percent) (percent) <=6.75% ...... 5.80 7.80 9.30 13.40 6.76%±7.25% ...... 5.20 6.90 8.50 12.10 7.26%±7.75% ...... 4.50 5.80 7.50 10.60 7.76%±8.25% ...... 3.70 4.80 6.50 9.10 8.26%±8.75% ...... 3.10 3.80 5.50 7.60 8.76%±9.25% ...... 2.60 3.10 4.50 6.20 9.26%±9.75% ...... 2.30 2.70 3.80 5.10 >=9.75% ...... 2.10 2.40 2.90 3.50 Net Position (Balance x Risk Weight) ($) Remaining time to maturity (Column B) (Column C) (Column A) over 5 over 10 (Column D) Balance with coupons of: 5 years or years years over 20 Total less through 10 through 20 years (percent) years years (percent) (percent) (percent) <=6.75% ...... $9 $19 $119 $1,255 $1.402 6.76%±7.25% ...... 41 70 208 1,215 1,534 7.26%±7.75% ...... 33 64 155 1,431 1,682 7.76%±8.25% ...... 31 56 129 1,455 1,670 8.26%±8.75% ...... 19 76 121 1,254 1,470 8.76%±9.25% ...... 13 79 111 1,697 1,900 9.26%±9.75% ...... 8 54 61 981 1,104 >=9.75% ...... 13 18 27 66 124 Total ...... 166 434 932 9,353 10,886 BILLING CODE 6714±01±P 39542 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39543 39544 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39545 BILLING CODE 6714±01±C 39546 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Appendix 2—Draft Reporting mortgage holdings as a percent of total have adjustable interest rates less any of Instructions assets as of the report date. those loans held for sale and delivery to secondary market participants such as General Instructions A. Schedule 2 FNMA or FHLMC under terms of a I. Interest Rate Risk Reporting If ‘‘total adjusted fixed-rate mortgage binding commitment. Requirements holdings’’ divided by total assets (on an Institutions that are not required to unrounded basis) is greater than 20 complete the supplemental schedules A. Schedule 1 percent of total assets, then the bank may elect to do so on a voluntary basis. Schedule 1 must be completed by should place an ‘‘X’’ in the box marked those commercial banks and FDIC- ‘‘Yes’’. Otherwise, indicate ‘‘No’’ in Item III. Reporting Instructions—Schedule 1 supervised savings banks which do not 1. If the box marked ‘‘Yes’’ is checked, The information required in Schedule meet all of the following exemption then the bank must complete Schedule 1 primarily represents the distribution criteria: 2. Banks completing Schedule 2 should across Columns B through H of maturity (1) The institution’s total assets are only report the total amount of fixed- and repricing data for selected assets, less than $300 million, and rate mortgage holdings on Schedule 1, liabilities and off- balance sheet items (2) The bank’s primary federal Items 1(b) and 2(b), in Column A; the that are outstanding as of the report supervisor has assigned the institution a distribution of these instruments across date. These distributed dollar amounts composite CAMEL rating of either ‘‘1’’ Columns B through H is not required. must equal the total dollar amounts or ‘‘2’’; and For purposes of this item, ‘‘total reported in Column A. Assets in (3) The sum of: adjusted fixed-rate mortgage holdings’’ nonaccrual status are excluded from this a. 30% of the institution’s fixed- and equals the sum of the bank’s permanent schedule. Additionally, a self-reporting floating-rate loans and securities with loans secured by first liens on 1–4 section is to be completed by those contractual maturity or repricing dates family residential mortgages, which banks holding particular types and/or between 1 and 5 years, and have fixed interest rates; and the bank’s concentrations of interest rate sensitive b. 100% of the institution’s fixed- and mortgage-backed pass-through securities assets and off-balance sheet contracts. floating-rate loans and securities with not held for trading, which have fixed This section requests information contractual maturity or repricing dates interest rates less any of those loans concerning the carrying value of these beyond 5 years, held for sale and delivery to secondary items as well as estimates of market is less than 30% of the institution’s total market participants such as FNMA or value changes for the 200 basis point assets as of the report date. FHLMC under terms of a binding rising and falling interest rate scenarios. Exempted institutions may file commitment. The carrying value of the bank’s trading Schedule 1 on a voluntary basis. account holdings is requested separately Institutions that file Schedule 1 should B. Schedule 3 in the self-reported section, along with report ‘‘N/A’’ in Schedule RC–B, If ‘‘total adjusted adjustable-rate market value changes given 100 basis Memorandum Item 2; Schedule RC–C, mortgage holdings’’ divided by total point rising and falling interest rate Part I, Memorandum Item 2 on FFIEC assets (on an unrounded basis) is equal scenarios. Estimates for self-reported 034; Schedule RC–C, Part I, to or greater than 10 percent but less items may be obtained from a reliable Memorandum Item 3 on FFIEC 031, 032, than 25 percent of total assets, then the third party source or from the and 033; and Schedule RC–E, bank should place an ‘‘X’’ in the box institution’s internal risk measurement Memorandum Items 5 and 6. FDIC- marked ‘‘Yes’’ in Item No. 1. Otherwise, system. Schedule 1 also contains a supervised savings banks which file indicate ‘‘No’’ in Item No. 1. If the box memoranda section for the reporting of Schedule 1 should report ‘‘N/A’’ in marked ‘‘Yes’’ is checked, then the bank adjustable-rate mortgage holdings by Schedule RC–J. must complete Schedule 3. Banks reset frequency for those banks with less All shifts in reporting status, with one completing Schedule 3 are exempt from than 10% of total assets in adjustable- exception, are to begin with the March completing Schedule 4 and the rate mortgages. Reports for Condition and Income. Such memoranda section of Schedule 1. a shift will take place only if the Definitions reporting bank’s condition fails to meet C. Schedule 4 A fixed interest rate is a rate that is the exemption criteria, as previously If ‘‘total adjusted adjustable-rate specified at the origination of the noted, as of the June reporting date. mortgage holdings’’ divided by total transaction, is fixed and invariable Banks involved with business assets (on an unrounded basis) is greater during the term of the asset or liability, combinations (pooling of interests, than or equal to 25 percent of total and is known to both the borrower and purchase acquisitions, or assets, then the bank should place an the lender. Also treated as a fixed reorganizations) will be subject to new ‘‘X’’ in the box marked ‘‘Yes’’ in Item interest rate is any rate that changes reporting requirements, if any, No. 1. Otherwise, indicate ‘‘No’’ in Item during the term of the asset or liability beginning with the first quarterly report No. 1. If the box marked ‘‘Yes’’ is on a predetermined basis, with the exact date following the effective date of a checked, then the bank must complete rate of interest over the life of the business combination involving a bank Schedule 4. Banks completing Schedule instrument known with certainty to and one or more depository institutions. 4 are exempt from completing Schedule both the borrower and the lender at 3 and the memoranda section of origination or when the instrument is II. Criteria for Required Completion of Schedule 1. acquired. Supplemental Schedules 2–4 For purposes of Schedules 3 and 4, The remaining maturity is the amount These schedules are applicable only ‘‘total adjusted adjustable-rate mortgage of time remaining from the report date to banks that answered ‘‘yes’’ to the holdings’’ equals the sum of the bank’s until the final contractual maturity of an reporting requirement for Schedule 1. permanent loans secured by first liens asset or liability. This section identifies which of the on 1–4 family residential mortgages A floating or adjustable rate is a rate supplemental interest rate risk reporting which have adjustable interest rates and that varies, or can vary, in relation to an schedules, if any, must be completed the bank’s mortgage pass-through index, to some other interest rate such based on the reporting bank’s level of securities not held for trading which as the rate on certain U.S. Government Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39547 securities or the bank’s ‘‘prime rate,’’ or according to remaining contractual Self-Reported Items to some other variable criterion the maturity for fixed-rate liabilities and This self-reported section requests exact value of which cannot be known according to next repricing date for information regarding certain assets and in advance. adjustable-rate liabilities. The maturity off- balance sheet contracts. Institutions The reset or repricing frequency is and repricing for all non-maturity how often the contract permits the are required to provide estimates of deposits (DDAs, MMDAs, NOW changes in market values for each interest rate on an instrument to be accounts, and other savings deposits) is changed (e.g., daily, monthly, quarterly, instrument given both a 200 basis point determined by bank management based rise and decline in interest rates. These semiannually, annually) without regard on its own assumptions and experience to the length of time between the report estimates may be obtained from reliable and must be reported in both rising and third party sources or from the date and the date the rate can next falling interest rate scenarios in change. institution’s internal risk measurement accordance with the parameters system. The next repricing date is the amount described in the item instructions of time remaining from the report date below. Item Instructions until the instrument’s contract permits the rate of interest to change. Distribution of Off-Balance Sheet The total amount reported in Column Positions A must equal the sum of Columns B Distribution of Securities, Loans and through H. Leases, and Other Interest-Bearing Institutions are required to distribute Item 1, Debt Securities (exclude self Assets selected off-balance sheet contracts that reported items): The sum of Items 1(a) Banks must distribute the carrying are not held for trading among the time and 1(b), Column A for this item plus value of selected securities, loans and bands (Columns) of Schedule 1. The off- the amount of nonaccrual pass-through leases and other interest-bearing assets balance sheet items include interest rate securities included in Schedule RC-N, in the specified balance sheet categories forward contracts, interest rate futures Column C, must equal the sum of of this schedule in accordance with the contracts, interest rate swaps without Schedule RC-B, Items 4(a)(1) through procedures set forth in the item embedded options, and commitments to 4(a)(3), Columns A and D. instructions below. originate, buy, and sell loans and Fixed-rate debt securities should be All permanent loans secured by first securities. Such commitments should reported without regard to their call liens on 1–4 family residential exclude unused lines of credit and date unless the security has actually mortgages and 1–4 family residential commitments to sell 1–4 family been called. When fixed-rate debt mortgage pass-through securities should mortgage loans that the bank holds for securities have been called, they should be reported on the following basis: sale and delivery to secondary market be reported on the basis of the time (1) The entire carrying value of each participants. remaining until the call date. asset with a fixed rate of interest should Adjustable-rate debt securities should be reported on the basis of the asset’s Off-balance sheet contracts should be reported as either amortizing or non- be reported on the basis of their reset remaining contractual maturity, and frequency without regard to their call (2) The entire carrying value of each amortizing contracts depending on whether the notional value of the date even if the security has actually asset with a floating or adjustable rate of been called. interest should be reported on the basis contract amortizes over time. Fixed-rate debt securities that the of its reset frequency. The selected off-balance sheet items reporting bank has the option to redeem The bank’s own estimates of expected must be reported using two entries to prior to maturity (‘‘put bonds’’) should cash flows associated with these reflect the timing of the cash flows. The be reported on the basis of the time mortgage products should not be used notional amounts of the contracts are remaining until the earliest ‘‘put’’ date. in this schedule. Loans held for sale and offsetting: one entry is positive and the Adjustable-rate ‘‘put bonds’’ should be delivery to secondary market other is an offsetting negative entry. reported on the basis of reset frequency participants under terms of binding This reporting method reflects the way without regard to ‘‘put’’ dates. commitments are reported separately in in which the off-balance sheet The information requested in Items Item No. 2(c) without regard to maturity instruments affect the institution’s 1(c), 1(d), and 1(e) applies to both fixed- or repricing. balance sheet. In general, if the rate and adjustable-rate instruments. The carrying value of other debt outstanding contract serves to lengthen securities, all other loans and leases, an asset’s maturity (i.e., long futures) Item 1(a), ARM Securities (use and all other interest-bearing assets Memoranda section below): Report the then the first entry is negative and the 13 should be reported on the following second entry is positive. If the total carrying value of all adjustable- basis: outstanding contract serves to shorten rate mortgage-backed pass-through certificates, such as those guaranteed by (1) Assets which carry a fixed rate of an asset’s maturity (i.e., pay-fixed swap) the Government National Mortgage interest should be spread among the then the first entry is positive and the Association (GNMA) and those issued Columns according to their remaining second entry is negative. Reporting by the Federal National Mortgage maturity (as defined below), and instructions for particular types of off- Association (FNMA), the Federal Home (2) Assets which carry a floating or balance sheet contracts are provided in adjustable rate of interest should be Loan Mortgage Corporation (FHLMC), sections that follow. reported on the basis of the time and others (e.g., other depository remaining until the next repricing date. Excluded from this section are: (1) institutions or insurance companies) Interest rate option contracts, including Distribution of Time Deposits, Non- caps, floors, collars, corridors, and 13 For purposes of this schedule, available-for-sale Maturity Deposits, and All Other swaptions, and (2) interest rate swaps debt securities are to be reported on the basis of Interest-Bearing Liabilities with embedded options, such as index their fair value, while held-to-maturity debt amortizing swaps. These items are securities are to be reported on the basis of their All time deposits and other interest- amortized cost. Therefore, throughout the bearing nondeposit liabilities should be included in the self-reported section instructions to this schedule, references to the distributed across Columns B through H below. carrying value should be read as such. 39548 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules which are included in Schedule RC–B, estimate of the instrument’s current (3) Securities issued by states and Items 4(a)(1) through 4(a)(3). average life. political subdivisions in the U.S. The reporting of these adjustable-rate Item 1(d), Non-Amortizing Securities: reported in Schedule RC–B, Items 3(a) pass-through securities by reset Report all debt securities with coupons through 3(c). frequency depends upon the greater than 3 percent that have either: (4) Other debt securities reported in institution’s asset concentration level (1) regularly scheduled principal Schedule RC–B, Item 5 (and the and is requested in the Memoranda payments less frequently than on an appropriate subitems on the FFIEC 031, Section of this schedule as well as in annual basis, or (2) full repayment of 032, and 033 report forms). Schedules 3 and 4. principal at maturity. Also reported in Exclude from zero- or low-coupon Item 1(b), Fixed-Rate Mortgage this item are amortizing securities securities: Securities: Report the carrying value of which require a balloon payment of 75 (1) All equity securities reported in all fixed-rate mortgage-backed pass- percent or more of the original principal Schedule RC–B, Items 6(a) through 6(c). through certificates, such as those at maturity. Non-amortizing securities (2) All debt securities which are on guaranteed by the Government National may include: nonaccrual status. Mortgage Association (GNMA) and (1) U.S. Treasury securities reported (3) All structured notes (include in those issued by the Federal National in Schedule RC–B, Item 1. Item 8 of the self-reported items below). Mortgage Association (FNMA), the (2) U.S. Government agency and (4) All ‘‘high-risk’’ mortgage securities Federal Home Loan Mortgage corporation obligations reported in (include in Item 6 of the self-reported Corporation (FHLMC), and others (e.g., Schedule RC–B, Items 2(a) and 2(b). items below). Item 2, Loans and Leases: Loan other depository institutions or (3) Securities issued by states and amounts should be reported net of insurance companies) which are political subdivisions in the U.S. unearned income to the extent that they included in Schedule RC–B, Items reported in Schedule RC–B, Items 3(a) have been reported net of unearned 4(a)(1) through 4(a)(3). through 3(c). income in Schedule RC–C. Item 1(c), All Other Amortizing (4) CMOs and REMICs reported in Schedule RC–B, Items 4(b)(1) through The sum of Items 2(a), 2(b) and 2(c), Securities: Report the carrying value of Column A of this schedule, plus the all other debt securities (not reported in 4(b)(3) if the institution is not required or does not elect to self-report the amount of permanent loans secured by Items 1(a) and 1(b) above) which have first liens on 1–4 family residential regularly scheduled principal estimated changes in the market values of these instruments for a 200 basis mortgages in nonaccrual status reported amortization more frequently than on an in Schedule RC–N, Column C, annual basis, exclude amortizing point increase and decrease in interest rates. Institutions should not report Memorandum Item 4(c)(2) on FFIEC 033 securities which require a balloon and 034, and Memorandum Item 3(c)(2) payment of 25 percent or more of the CMO and REMIC holdings in this item if these exceed 10% of total assets. If on FFIEC 031 and 032 must equal RC– original principal at maturity. This may C, Item 1(c)(2)(a). include: CMOs and REMIC holdings exceed 10% of total assets, they must be included in Included in Items 2(c), 2(d) and 2(e) (1) U.S. Government agency and is information regarding both fixed- and corporation obligations reported in the self-reporting section below. (5) Other debt securities reported in adjustable-rate instruments. Schedule RC–B, Item 2(a) and 2(b). Item 2(a), ARM Loans (use (2) Securities issued by states and Schedule RC–B, Item 5 (and the appropriate subitems on the FFIEC 031, Memorandum section below): Report political subdivisions in the U.S. the total amount of permanent loans reported in Schedule RC–B, Items 3(a) 032, and 033 report forms). Exclude from non-amortizing secured by first liens on 1–4 family through 3(c). securities: residential mortgages that are included (3) Other debt securities reported in (1) All equity securities reported in in RC–C, Item 1(c)(2)(a), which are Schedule RC–B, Item 5, including home Schedule RC–B, Items 6(a) through 6(c). subject to a floating or adjustable equity loan-backed securities (and the (2) Zero- or low-coupon (3 percent or interest rate. Exclude from this item any appropriate subitems on the FFIEC 031, less) securities (report in Item 1(e) loans in nonaccrual. Also exclude loans 032, and 033 report forms). below). held for sale with firm commitments Exclude from all other amortizing (3) All debt securities which are on (report in Item 2(c) below). securities: nonaccrual status. The reporting of these items according (1) All equity securities reported in (4) All structured notes (include in to reset frequency depends on the Schedule RC–B, Items 6(a) through 6(c). Item 8 of the self-reported items below). institution’s asset concentration level (2) Zero- or low-coupon (3 percent or (5) All ‘‘high-risk’’ mortgage securities and is requested in the Memoranda less) securities (report in Item 1(e) (include in Item 6 of the self-reported section of this schedule as well as below). items below). Schedules 3 and 4. (3) All debt securities which are on (6) Non-high-risk mortgage securities Item 2(b), Fixed-Rate Mortgage Loans: nonaccrual status. that are included in the self-reported Report all permanent loans secured by (4) All structured notes (include in items below. first liens on 1–4 family residential Item 8 of the self-reported items below). Item 1(e), Zero- or Low-Coupon mortgages included in RC–C, Item (5) All ‘‘high-risk’’ mortgage securities Securities Report: On the basis of final 1(c)(2)(a) that are subject to a fixed or (include in Item 6 of the self-reported maturity, all holdings of debt securities predetermined interest rate on the basis items below.) with coupon rates of 3 percent or less. of time remaining until their final (6) CMO and REMIC holdings. If CMO Such holdings may include: contractual maturity. Exclude any loans and REMIC holdings exceed 10% of (1) U.S. Treasury securities reported in nonaccrual status. Also exclude loans total assets, they must be included in in Schedule RC–B, Item 1, including all held for sale with firm commitments Items 6 or 7 of the self-reporting section U.S. Treasury bills issued on a discount (report in Item 2(c) below). below. For holdings of 10% or less of basis. Item 2(c), Mortgage Loans Held for assets, an institution may elect to report (2) U.S. Government agency and Sale with Firm Commitments: Report in these balances in the non-amortizing corporation obligations reported in this item the total amount of all section based on bank management’s Schedule RC–B, Items 2(a) and 2(b). outstanding loans secured by first liens Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39549 on 1–4 family residential mortgages (2) money market deposit accounts in Columns E and F, ‘‘3–5 years’’ and which are held by the bank for sale and (MMDAs); and (3) NOW accounts, all ‘‘5–10 years.’’ delivery to a secondary market other savings deposits, and all other Item 4(a), Time Deposits: Report the participant under the terms of a binding retail demand deposit accounts. The total amount of all time deposits, commitment. distribution of these non-maturity regardless of amount. This item Item 2(d), Other Amortizing Loans: deposits across the time bands will be includes both time certificates of Report all other loans and leases with based on management determination deposit and open-account time deposits. regularly scheduled principal within defined constraints. The amount in Column A must equal amortization (more frequently than The term ‘‘commercial’’ for purposes the sum of Schedule RC–E, annually), which are not included above of this schedule refers to all demand Memorandum Items 2(b), 2(c), and 2(d). in Items 2(a), 2(b) and 2(c). deposit accounts in which the beneficial For purposes of this schedule, time Include in this item all revolving lines interest is held by a depositor that is not deposits with ‘‘step up’’ features should of credit and credit card receivables. an individual or sole proprietorship. be reported on the basis of remaining The reporting of adjustable-rate Such accounts include, but are not maturity. revolving credit should be according to limited to, demand deposits held by: Item 4(b), All Other Interest-Bearing the next repricing date, while fixed-rate corporations, partnerships, and other Nondeposit Liabilities: The amount revolving credit should be reported associations; the U.S. and foreign reported in this item must equal the based on management determination of governments; states and political sum of the following items from the likely repayment horizon. Relevant subdivision in the U.S.; U.S. and foreign Schedule RC: Item 14(a), ‘‘Federal funds considerations in assigning a repayment banks. Only those commercial accounts purchased;’’ Item 14(b), Securities sold period should include, at a minimum: which are noninterest-bearing demand under agreements to repurchase;’’ Item (1) Required minimum monthly deposit accounts are differentiated for 15(a), ‘‘Demand notes issued to the U.S. payments, (2) the effect of ‘‘payment reporting purposes; all other Treasury;’’ Item 16(a), ‘‘Other borrowed holidays,’’ (3) historical repayment commercial deposits (i.e., NOW money with original maturity of one patterns, (4) the effect of credit card accounts, MMDAs and other savings year or less;’’ Item 16(b), ‘‘Other accounts used strictly for transactions deposits) are not differentiated for borrowed money with original maturity purposes, and (5) the effect of pricing purposes of this schedule. of more than one year;’’ Item 17, incentives such as tiered rates linked to ‘‘Mortgage indebtedness and obligations The term ‘‘retail’’ for purposes of this the amount outstanding. under capitalized leases;’’ Item 19, report refers to all demand deposit Exclude amortizing loans which ‘‘Subordinated notes and debentures;’’ accounts in which the beneficial interest require a balloon payment of 75 percent and Item 22, ‘‘Limited-life preferred is held by a depositor that is an or more of the original principal at stock and related surplus.’’ maturity. For this schedule, such loans individual or sole proprietorship. Item 4(c), Commercial Demand are considered to be non-amortizing and Institutions must report all non- Deposits—Rising Rates: Report the total are included in Item 2(d), ‘‘All other maturity deposits across the time bands amount of all demand deposit accounts loans’’, below. Also exclude any loans each quarter according to management’s (included in Schedule RC–E, Columns in nonaccrual status. own assumptions and experience in A and B) representing funds in which Item 2(e), All Other Loans: Report all both a rising rate and a declining rate any beneficial interest is held by a other loans and leases with no scenario in accordance with the depositor which is not an individual or scheduled principal amortization or following parameters: sole proprietorship. with principal amortization scheduled (1) Commercial Demand Deposit Item 4(d), MMDAs—Rising Rates: annually or less frequently that are not Accounts: A minimum of 50 percent of Report the total amount of all MMDAs included above in Items 2(a) through an institution’s commercial demand as reported on Schedule RC–E, 2(c). Also include loans which require deposit accounts is required to be Memorandum Item 2(a)(1). a balloon payment of 25 percent or more reported in Column B, ‘‘Up to 3 Item 4(e), NOW Accounts, Other of the original principal at maturity. months.’’ The remaining balances can Savings Deposits, and Other Demand Exclude any loans in nonaccrual status. be distributed across Columns B Deposits—Rising Rates: Report the total Item 3, All Other Interest-Bearing through E (‘‘Up to 3 months,’’ ‘‘Greater amount of all NOW accounts that are Assets: Report all interest-earning than 3 months–1 year,’’ ‘‘1–3 years,’’ included in Schedule RC–E, assets, other than loans and securities. and ‘‘3–5 years’’) with a maximum of 20 Memorandum Item 3, all other savings The sum of the amount reported in percent of the total balance in Column deposits as reported on Schedule RC–E, Column A for this item must equal the E, ‘‘3–5 years.’’ Memorandum Item 2(a)(2), and all sum of Schedule RC, Item 1(b), (2) MMDA Accounts: These deposit demand deposits representing funds in ‘‘Interest-bearing balances due from accounts may be distributed across which any beneficial interest is held by depository institutions,’’ Item 3(a), Columns B through D (‘‘Up to 3 an individual or sole proprietorship ‘‘Federal funds sold,’’ and Item 3(b) months,’’ ‘‘Greater than 3 months–1 included in Schedule RC–E, Item 1, ‘‘Securities purchased under agreements year,’’ and ‘‘1–3 years’’) with a Columns A and B. to resell,’’ less any amount reported in maximum of 50 percent reported in the Item 4(f), Commercial Demand nonaccrual status. Column D, ‘‘1–3 years.’’ Deposits—Declining Rates: Report the Item 4, Liabilities: For purposes of (3) NOW Accounts, Other Savings total amount of all demand deposit this schedule, report all fixed-rate time Deposits and Retail Demand Deposit accounts (included in Schedule RC–E, deposits and interest-bearing Accounts: These deposit accounts may Columns A and B) representing funds in nondeposit liabilities on the basis of be distributed across Columns B which any beneficial interest is held by their remaining maturity, and through F (‘‘Up to 3 months,’’ ‘‘Greater a depositor which is not an individual adjustable-rate time deposits and than 3 months–1 year,’’ ‘‘1–3 years,’’ or sole proprietorship. nondeposit interest-bearing liabilities on ‘‘3–5 years,’’ and ‘‘5–10 years’’) under Item 4(g), MMDAs—Declining Rates: the basis of their next repricing date. the following constraints: a maximum of Report the total amount of all MMDAs Non-maturity deposits include: (1) 20 percent in Column F, ‘‘5–10 years,’’ as reported on Schedule RC–E, Commercial demand deposit accounts; and a maximum of 20 percent combined Memorandum Item 2(a)(1). 39550 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Item 4(h), NOW Accounts, Other future date at a specified price or yield. instrument if the underlying instrument Savings Deposits, and Other Demand For outstanding long positions, the first carries an adjustable rate. Deposits—Declining Rates: Report in entry corresponding to the contract For commitments to originate or buy this item the total amount of all NOW settlement date must be negative. The non-amortizing loans or securities, the accounts that are included in Schedule offsetting positive entry must be first entry corresponding to the contract RC–E, Memorandum Item 3, all other reported according to the settlement settlement date must be negative. The savings deposits as reported on date plus the maturity of the instrument offsetting positive entry must be Schedule RC–E, Memorandum Item underlying the contract. reported according to the settlement 2(a)(2), and all demand deposits Short positions in futures contracts date plus the maturity of the underlying representing funds in which any and forward rate agreements represent instrument if the underlying instrument beneficial interest is held by an commitments to sell specified financial carries a fixed rate, or to the settlement individual or sole proprietorship instruments at a specified future date at date plus the time until the next included in Schedule RC–E, Item 1, a specified price or yield. For an repricing date if the underlying Columns A and B. outstanding short position, the first instrument carries an adjustable rate. Item 5, Off-Balance Sheet Positions: In entry corresponding to the contract For commitments to sell non- this section, respondents must report settlement date must be positive. The amortizing loans or securities, the first selected off-balance sheet contracts offsetting negative entry must be entry corresponding to the contract using two entries. Each contract has two reported according to the settlement settlement date must be positive. The offsetting entries (one is positive, one is date plus the maturity of the instrument offsetting negative entry must be negative) which reflect the timing of the underlying the contract. reported according to the settlement cash flows. This reporting method Interest rate swaps must be reported date plus the maturity of the underlying reflects the way in which the off-balance in Columns B through H on the instrument if the underlying instrument sheet instruments affect the institution’s following basis: The first entry carries a fixed rate, or to the settlement date plus the time until the next economic value. corresponds to the next repricing date of Item 5(a), Non-Amortizing Contracts: repricing date of the underlying the adjustable-rate coupon, and the Report the notional amounts of the instrument if the underlying instrument offsetting entry corresponds to the following contracts that are not held for carries an adjustable rate. maturity of the swap. trading: (1) Futures contracts whose Item 5(b) Amortizing Contracts: For swaps in which the reporting predominant risk characteristic is Report all outstanding commitments to bank pays an adjustable rate and interest rate risk as reported in Schedule originate, buy and sell mortgages and receives a fixed rate, the first entry RC–L, Item 14(a), ‘‘Futures contracts, other amortizing loans and securities. Column A, ‘‘Interest Rate Contracts;’’ (2) corresponding to the next repricing date Include only those commitments for forward contracts whose predominant of the floating rate coupon must be which interest rates have already been risk characteristic is interest rate risk negative. The offsetting positive entry locked in, either on a fixed-rate or reported in Schedule RC–L, Item 14(b), must be reported according to the adjustable-rate basis. Also include all ‘‘Forward contracts,’’ Column A, maturity of the swap. other interest rate contracts whose ‘‘Interest Rate Contracts;’’ and (3) For swaps in which the reporting notional value amortizes over time. interest rate swaps, excluding basis bank pays a fixed rate and receives an Commitments to originate, buy or sell swaps, reported in Schedule RC–L, Item adjustable rate, the first entry mortgages and other amortizing loans or 14(e), ‘‘Swaps,’’ Column A, ‘‘Interest corresponding to the next repricing date securities must be reported in Columns Rate Contracts.’’ Also included in this of the floating rate coupon must be B through H on the following basis: The item are commitments to originate, buy, positive. The offsetting negative entry first entry corresponds to the settlement and sell non-amortizing loans and must be reported according to the date of the commitment contract. The securities. Exclude all unused lines of maturity of the swap. offsetting entry corresponds to the credit. Securitized credit cards where the settlement date plus the maturity of the Exclude from this item all exchange- credit card holders pay a fixed rate and underlying instrument if the underlying traded option contracts and over-the- the security has an adjustable-rate instrument carries a fixed rate, or to the counter option contracts and any swaps coupon are treated similarly to interest settlement date plus the time until the with embedded options. Swaptions, i.e., rate swaps. Like swaps, the first entry next repricing date of the underlying options to enter into a swap contract, corresponds to the repricing date of the instrument if the underlying instrument and contracts known as caps, floors, adjustable-rate coupon that is paid to carries an adjustable rate. All collars and corridors should be reported the holder of the security. However, the commitments should be reported on a as options and are included in Item 11 offsetting entry in these transactions gross basis, using a zero percent fallout of the self-reported section below. Also corresponds to the expected maturity of factor. exclude all contracts held for trading the security. Exclude securitized credit For commitments to originate or buy (report in Item 12 of the self-reporting cards where the cards and the security mortgages and other amortizing loans or section below.) are both fixed rate or both variable rate. securities, the first entry corresponding Futures contracts and interest rate Firm commitments to originate, buy to the contract settlement date must be forwards must be reported in Columns or sell non-amortizing loans or negative. The offsetting positive entry B through H on the following basis: The securities must be reported in Columns must be reported according to the first entry corresponds to the settlement B through H on the following basis: The settlement date plus the maturity of the date of the contract, and the offsetting first entry corresponds to the settlement underlying instrument if the underlying entry corresponds to the settlement date date of the commitment contract. The instrument carries a fixed rate, or to the plus the maturity of the instrument offsetting entry corresponds to the settlement date plus the time until the underlying the contract. settlement date plus the maturity of the next repricing date of the underlying Long positions in futures contracts underlying instrument if the underlying instrument if the underlying instrument and forward rate agreements represent instrument carries a fixed rate, or to the carries an adjustable rate. commitments to purchase specified settlement date plus the time until the For commitments to sell mortgages financial instruments at a specified next repricing date of the underlying and other amortizing loans or securities, Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39551 the first entry corresponding to the concerning these products, refer to the lifetime interest rate cap is the upper contract settlement date must be instructions for Schedule RC–B, limit on the mortgage rate that can be positive. The offsetting negative entry Memorandum Item 9. charged over the life of a loan. Report must be reported according to the (1) Step-up Bonds in Memorandum Items 1 and 2 the settlement date plus the maturity if the (2) Index Amortizing Notes (IANs) entire amount of those instruments underlying instruments carry a fixed (3) Dual Index Notes whose rates are greater than or equal to rate, or to the settlement date plus the (4) De-leveraged Bonds 200 bp away from their lifetime interest time until the next repricing date if the (5) Range Bonds rate cap according to the frequency with underlying instruments carry an (6) Inverse Floaters which the interest rate on the mortgage adjustable rate. Item 9, Mortgage Servicing Rights: may contractually reset. Report in Self-Reported Items Report the unamortized portion of Memorandum Items 3 and 4 the total excess residential mortgage servicing amount of adjustable ARM securities Maturity and repricing information is and loans whose rates are less than 200 not requested in this section. However, fees receivable included in Schedule RC–F, Item 3. Also report the bp from their lifetime interest rate cap. banks must report the carrying value of With respect to the relationship of unamortized amount (carrying value) of on-balance sheet instruments in Column this memoranda section to the main mortgage servicing rights included in A and the market value of all body of this schedule, the sum of Schedule RC–M, Item 7(a) on FFIEC instruments in Column B. In addition Memorandum Items 1, Columns A 034; Item 5(a) on FFIEC 033; and Item banks must report in Columns C and D, through C, and Memorandum Item 3 respectively, each instrument’s 6(a) on FFIEC 031 and 032. Item 10, Interest Rate Swaps with must equal Schedule 1, Item 1(a). estimated change in market value given The sum of Memoranda Item 2, Embedded Options: Report all interest a 200 basis point instantaneous and Columns A through C, and rate swaps with embedded options. parallel rise and decline in interest Memorandum Item 4 must equal Exclude all interest rate swaps held for rates. These estimates may be obtained Schedule 1, Item 2(a). from a reliable third party source or trading. from the institution’s internal risk Item 11, Interest Rate Options: Report Memoranda measurement system. Item 7 in this interest rate option contracts not held in Item 1, ARM Securities: Report the section requests estimated market value trading accounts, including options to carrying value of all adjustable-rate, changes of the institution’s trading purchase/sell interest-bearing financial mortgage-backed pass-through securities account holdings given 100 basis point instruments and whose predominant on the basis of their reset frequency. instantaneous and parallel rise and risk characteristic is interest rate risk as Exclude any securities in nonaccrual decline in interest rates. well as contracts known as caps, floors, status. Also exclude those pass-through Item 6, High-Risk Mortgage Securities: collars, corridors and swaptions. securities whose rates are less than 200 Report all high-risk mortgage securities Include all exchange-traded and over- bp of their lifetime interest rate cap. For included in Schedule RC–B, the-counter interest rate contracts as this memoranda section, such securities Memorandum Item 8. This item reported on Schedule RC–L, Items 14(c), are to be reported in Memorandum Item includes all mortgage derivative Column A, and Item 14(d), Column A. 3. products (stripped mortgage-backed Item 12, Trading Account: Report in Column A, 0 to 6 Months: Report the securities, CMOs, REMICs, and CMO this item the carrying value of all dollar amount of the bank’s adjustable- and REMIC residuals) that meet the trading account assets, liabilities and rate pass-through securities whose rates definition of a high-risk mortgage off-balance sheet contracts. Also report may reset semiannually or more security under the FFIEC’s Supervisory the market value changes of these frequently (e.g., semiannually, quarterly, Policy Statement on Securities holdings given both a 100 basis point monthly, weekly, daily). Activities. instantaneous and parallel rise and Column B, 6 Months to 1 Year: Report Item 7, Nonhigh-Risk Mortgage decline in interest rates. The carrying the dollar amount of the bank’s Securities: Non-high risk mortgage value of these items are included in adjustable-rate, pass-through securities securities are those mortgage derivative Schedule RC, Items 5 and 15(b), and whose rates reset annually or more products which did not meet the Schedule RC–L, Item 15, Column A on frequently, but less frequently than definition of a high-risk mortgage FFIEC 033 and 034; and Schedule RC– semiannually. security under the FFIEC’s Supervisory D, Items 12 and 15, and Schedule RC– Column C, Greater than 1 Year: Report Policy Statement on Securities L, Item 15, Column A on FFIEC 031 and the dollar amount of the bank’s Activities as of their most recent testing 032. adjustable-rate, pass-through securities date. Institutions with greater than 10% Memoranda Section whose rates reset less frequently than of total assets in nonhigh-risk mortgage annually. derivative securities as of the report date This memoranda section is to be Item 2, ARM Loans: Report all must report information about such completed only by those banks whose adjustable-rate, permanent loans instruments in this item. Institutions ARM holdings are less than 10% of total secured by first liens on 1–4 family that are not required to complete this assets as of the report date and have residential mortgages on the basis of the item may elect to do so on a voluntary checked an ‘‘X’’ in the ‘‘No’’ boxes on reset frequency. Exclude all loans in basis. Item 1 of both Schedules 3 and 4. nonaccrual status. Also exclude those Item 8, Structured Notes: Report all Memoranda Items 1–4 divide total loans whose rates are less than 200 bp structured notes included in Schedule ARM securities and loans included in from their lifetime interest rate cap. For RC–B, Memorandum Item 9. Structured Schedule 1, Items 1(a) and 2(a) above this memoranda section, such loans are notes are debt securities whose cash into two categories, those adjustable-rate to be reported in Memorandum Item 4. flow characteristics are dependent upon instruments whose rates are greater than Column A, 0 to 6 Months: Report the one or more indices and/or have or equal to 200 basis points (bp) away dollar amount of the bank’s adjustable- embedded forwards or options. from their lifetime interest rate cap, and rate, permanent loans secured by first Included below is a list of common those whose rates are less than 200 bp liens on 1–4 family residential structures. For further information from their lifetime interest rate cap. The mortgages whose rates reset 39552 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules semiannually or more frequently (e.g. Examples Schedule RC–B, Items 4(a)(1) through semiannually, quarterly, monthly, An 8%, fixed-rate, residential 4(a)(3), Columns A and D. weekly, daily.) mortgage loan which matures in 15 Exclude from this schedule Column B, 6 Months to 1 Year: Report years would be reported in Item 5, (1) Fixed-rate residential mortgage the dollar amount of the bank’s Column C. loans held for sale and delivery to adjustable-rate, permanent loans An 8.5%, fixed-rate, mortgage pass- secondary market participants, such as secured by first liens on 1–4 family through security which matures in three FNMA and FHLMC, under terms of a residential mortgages whose rates reset years would be reported in Item 7, binding commitment. annually or more frequently, but less Column A. Note that 50 bp added to the (2) Fixed-rate residential mortgage frequently than semiannually. 8.5% rate results in a 9% estimated holdings that are on nonaccrual status. Column C, Greater than 1 Year: Report weighted average coupon rate of the (3) All collateralized mortgage the dollar amount of the bank’s underlying collateral. obligations (CMOs), real estate mortgage adjustable-rate, permanent loans For purposes of this supplemental investment conduits (REMICs), and secured by 1–4 family residential schedule the following definitions stripped mortgage-backed securities. mortgages whose rates reset less apply: (4) All pass-through securities held frequently than annually. A fixed interest rate is a rate that is for trading. Near Lifetime Cap specified at the origination of the Column Instructions transaction, is fixed and invariable Item 3, ARM Securities: Report the during the term of the loan or security, Distribute the carrying value of total amount of the bank’s adjustable- and is known to both the borrower and selected assets in accordance with the rate, pass-through securities whose rates the lender. Also treated as a fixed procedures described for Columns A are less than 200 bp from their lifetime interest rate is a predetermined interest through D below. interest rate cap. rate which is a rate that changes during Report in Column A the entire Item 4, ARM Loans: Report the total the term of the loan or security on a carrying value of the bank’s fixed-rate amount of the bank’s adjustable-rate, predetermined basis, with the exact rate residential mortgage holdings with permanent loans secured by 1–4 family of interest over the life of the instrument remaining maturities of 5 years or less. residential mortgages whose rates are known with certainty to both the Report in Column B the entire less than 200 bp from their lifetime borrower and the lender at loan carrying value of the bank’s fixed-rate interest rate cap. origination or when the debt security is residential mortgage holdings with remaining maturities of over 5 years IV. Reporting Instructions—Schedule 2 acquired. Remaining maturity is the amount of through 10 years. General Instructions time remaining from the report date Report in Column C the entire Institutions which complete Schedule until the final contractual maturity of a carrying value of the bank’s fixed-rate 2 should only report the total amount of loan or debt security. residential mortgage holdings with fixed-rate mortgage holdings on The carrying value of a held-to- remaining maturities of over 10 years Schedule 1, Items 1(b) and 2(b), Column maturity pass-through security is its through 20 years. Report in Column D the entire A. The distribution of these instruments amortized cost, while the carrying value carrying value of the bank’s fixed-rate across Columns B through H is not of an available-for-sale pass-through residential mortgage holdings with required. security is its fair value. The information required in this All loans are to be reported net of remaining maturities of over 20 years. supplemental schedule represents the unearned income to the extent that the Item Instructions loans have been reported net of distribution of individual fixed-rate Item 1: Test for determining whether mortgages holding balances by maturity unearned income in Schedule RC–C, Item 1(c)(2)(a). Schedule 2 should be completed. Either and coupon rate. In the distribution of repeat the instruction on page 1 of the Schedule 2 items, the entire carrying Include as fixed interest rate residential mortgage holdings the General Instructions or cross-reference value of all fixed-rate mortgage holdings it. In Items 2 through 9, distribute, in should be reported on the basis of final following instruments: (1) All permanent loans secured by accordance with Column instructions, maturities. The bank’s own estimate of the carrying value of the bank’s fixed- expected cash flows is not reported on first liens on 1–4 family residential mortgages included in Schedule RC–C, rate residential mortgage holdings. this schedule. Item 2: Report the bank’s fixed-rate Items 2 through 9 of Schedule 2 list Item 1(c)(2)(a), that have fixed interest rates regardless of whether they are residential mortgage holdings with a eight coupon rate ranges, beginning coupon rate of less than or equal to with a rate of less than or equal to current or are reported as ‘‘past due and still accruing’’ in Schedule RC–N, 6.75%. 6.75% proceeding in 50 bp increments, Item 3: Report the bank’s fixed-rate to a rate of greater than 9.75%. Columns Columns A and B. (2) The carrying value of all pass- residential mortgage holdings with a A through D list four time ranges, which through securities which have fixed coupon rate of 6.76% through 7.25%. represent the time remaining from the interest rates and are included in Item 4: Report the bank’s fixed-rate report date until the final maturity of residential mortgage holdings with a the instrument: 5 years or less, over 5 individual loan’s coupon or stated interest rate, coupon rate of 7.26% through 7.75%. years through 10 years, over 10 years pass-through securities are to be reported according Item 5: Report the bank’s fixed-rate through 20 years, and greater than 20 to the weighted average coupon (WAC) of the residential mortgage holdings with a years. Respondents must report selected underlying collateral. If this rate is not known, it coupon rate of 7.76% through 8.25%. assets by the coupon rate 14 in each of should be estimated by adding 50 bp to the rate the bank receives on each pass-through certificate. The Item 6: Report the bank’s fixed-rate the relevant time bands. 50 bp represents the deduction of servicing fees and residential mortgage holdings with a any applicable guarantee fees. As a consequence of coupon rate of 8.26% through 8.75%. 14 The term ‘‘coupon rate’’ is used in this these fees, the pass-through rate is lower than the schedule as a generic term, but for loans and pass- WAC of the underlying of mortgages. Therefore, to Item 7: Report the bank’s fixed-rate through securities it has two distinct definitions. estimate the WAC of the mortgage pool, the fees residential mortgage holdings with a Whereas loans are to be reported according to each should be added back to the pass-through rate. coupon rate of 8.76% through 9.25%. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39553 Item 8: Report the bank’s fixed-rate In the distribution of Schedule 3 (3) All collateralized mortgage residential mortgage holdings with a items, the entire carrying value of all obligations (CMOs) and real estate coupon rate of 9.26% through 9.75%. ARM holdings should be reported on mortgage investment conduits Item 9: Report the bank’s fixed-rate the basis of the reset frequency. (REMICs), and stripped mortgage- residential mortgage holdings with a Examples backed securities. coupon rate of greater than or equal to (4) All pass-through securities held 9.76%. An adjustable-rate permanent loan for trading. secured by a first lien on a 1–4 family V. Reporting Instructions—Schedule 3 residence whose current rate is 7.5% Column Instructions and that has a lifetime cap of 12% and General Instructions Distribute the carrying value of a periodic cap of 200 bp which reprices This supplemental schedule primarily selected assets in accordance with the annually would be reported to Item 4, procedures described for Columns A requests information related to the Column E. interest rate sensitivity of adjustable-rate An adjustable-rate pass-through though G below. mortgage (ARM) holdings. The security whose current coupon is 8% Report in Column A the carrying information required in this and has a lifetime cap of 10.5% and a value of the bank’s ARM holdings supplemental schedule represents the periodic cap of 100 bp which reprices which reprice in 6 months or less and categorization of the reporting bank’s semiannually would be reported to Item have no periodic cap. ARM holdings according to the distinct 3, Column B. Report in Column B the carrying characteristics of each loan or security. For purposes of this supplemental value of the bank’s ARM holdings The defining ARM characteristics schedule the following definitions which reprice in 6 months or less and requested for this schedule include: apply: have a periodic cap. (1) Reset frequency. The reset A floating or adjustable rate is a rate Report in Column C the carrying frequency is how often the contract that varies, or can vary, in relation to an value of the bank’s ARM holdings permits the interest rate on a loan to be index, to some other interest rate such which reprice over 6 months through 1 changed (e.g., daily, monthly, quarterly, as the rate on certain U.S. Government year and have no periodic cap. semiannually, annually) without regard securities or the bank’s ‘‘prime rate,’’ or Report in Column D the carrying to the length of time between the report to some other variable criterion the value of the bank’s ARM holdings date and the date the rate can next exact value of which cannot be known which reprice over 6 months through 1 change. in advance. Therefore, the exact rate the year and have a periodic cap equal to or (2) Lifetime interest rate cap. The loan or security carries at any lifetime cap is the upper limit on the subsequent time cannot be known at the less than 150 bp. mortgage rate that can be charged over time of origination or acquisition. Report in Column E the carrying value the life of a loan. This lifetime loan cap All loans are to be reported net of of the bank’s ARM holdings which is expressed in terms of the initial rate. unearned income to the extent that the reprice over 6 months through 1 year For example, if the initial mortgage rate loans have been reported net of and have a periodic cap greater than 150 is 7% and the lifetime cap is 5%, the unearned income on RC–C, Item bp. maximum interest rate that the bank can 1(c)(2)(a). Report in Column F the carrying value charge over the life of the loan is 12%. Include as adjustable-rate residential of the bank’s ARM holdings which (3) Periodic cap. A periodic cap limits mortgage holdings the following reprice over 1 year and have no periodic the amount that the interest rate may instruments: cap. increase at the reset (repricing) date. (1) All permanent loans secured by Report in Column G the carrying The periodic cap is expressed in basis first liens on 1–4 family residential value of the bank’s ARM holdings points (bp). For example, the bank owns mortgages included in Schedule RC–C, which reprice over 1 year and have a a 7% adjustable-rate mortgage loan. If Item 1(c)(2)(a), that have adjustable periodic cap. the periodic cap is 100 bp, then the interest rates, regardless of whether they maximum rate the bank can charge at are current or are reported as ‘‘past due Item Instructions and still accruing’’ in Schedule RC–N the next reset date is 8%. If the indexing In Items 2 through 5, distribute, in Columns A and B. rate rose by 150 bp, making the fully accordance with column instructions, (2) The carrying values 15 of all pass- indexed mortgage rate 8.5%, the bank the carrying value of the bank’s ARM could only charge 8% at the next reset through securities which have adjustable interest rates and are holdings. date. Item 1: Test for determining whether Schedule 3, Columns A through G, included in RC–B, Items 4(a)(1) through 4(a)(3), Columns A and D. Schedule 3 should be completed. Either list three reset frequency Columns repeat the instruction on page 1 of the which are divided by the presence of a Exclude from this schedule General Instructions or cross-reference periodic cap, and, in the over ‘‘6 months (1) Adjustable-rate residential it. through 1 year’’ Column only, by the mortgage loans held for sale and Item 2: Report the bank’s ARM size of the periodic cap. Items 2 through delivery to secondary market holdings that are within 200 bp of their 5 list four basis point ranges for how far participants such as FNMA and FHLMC lifetime cap. the ARM’s current rate is from the under terms of a binding commitment. instrument’s lifetime interest rate cap. Item 3: Report the bank’s ARM (2) All adjustable-rate mortgage holdings that are 201–400 bp from their In terms of ARM pass-through holdings that are on nonaccrual status. securities, the information required lifetime cap. pertains to the relationship between the 15 For purposes of this schedule, available-for-sale Item 4: Report the bank’s ARM current interest rates and caps of the debt securities are to be reported on the basis of holdings that are 401–600 bp from their underlying mortgages. If the loans in the their fair value, while held-to-maturity debt lifetime cap. securities are to be reported on the basis of their mortgage pool are not uniform in terms amortized cost. Therefore, throughout the Item 5: Report the bank’s ARM of periodic caps and lifetime caps, the instructions to this schedule, references to the holdings that are greater than 600 bp weighted cap information is required. carrying value should be read as such. from their lifetime cap. 39554 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules VIII. Reporting Instructions—Schedule 4 lagging, each of which is divided by All loans are to be reported net of General Instructions reset frequencies. The current market unearned income to the extent that the index columns are further divided by loans have been reported net of This supplemental schedule primarily the presence of a periodic cap, and, in unearned income on RC-C, Item requests information related to the the —Over 6 months through 1 year— 1(c)(2)(a). interest rate sensitivity of adjustable-rate columns only, by the size of the Adjustable-rate residential mortgage mortgage (ARM) holdings. The periodic cap. Items 2 through 9 cover loans that are held by the bank for sale information required in this four distance groups, in terms of basis and delivery to a secondary market supplemental schedule represents the point ranges, of current ARM rates in participant under the terms of a binding categorization of the reporting bank’s relation to the instrument—s lifetime contract should be reported according to ARMs according to the distinct interest rate cap. For each distance their repricing frequency regardless of characteristics of each loan or security. group, both the ARM balances and the the delivery date specified in the The characteristics of an ARM include: associated weighted average coupon commitment. (1) Underlying Index. The underlying (WAC) rates must be reported. The Include as adjustable-rate residential index of an ARM represents the base or weighted average coupon rate for this mortgage holdings the following reference point for calculating the schedule is determined by multiplying instruments: mortgage rate of an ARM loan. There are the balance of each ARM loan by the (1) All permanent loans secured by two main categories of indices: (1) those applicable annual interest rate (i.e., the first liens on 1–4 family residential based on a current market index, and (2) annualized rate in effect for the asset as mortgages included in Schedule RC-C, those derived from a lagging market of the report date) and by dividing the Item 1(c)(2)(a) that have adjustable index. A current market index is one sum of all such calculated amounts by interest rates, regardless of whether they that adjusts quickly to changes in the total carrying value of the category. are current or are reported as ‘‘past due market interest rates. Examples include The WAC required for ARM securities and still accruing’’ in Schedule RC-N, rates on Treasury securities, and the in this schedule is that of the underlying Columns A and B. London Interbank Offered Rate (LIBOR). mortgages, which should be estimated (2) The carrying values 16 of all pass- A lagging market index is one that by adding 75 bp to the bank’s pass- through securities which have adjusts to changes in market interest through rate. The 75 bp represents the adjustable interest rates and are rates more slowly than the —current deduction of servicing fees and any included in RC-B, Items 4(a)(1) through market indexes— such as rates on applicable guarantee fees. As a 4(a)(3), Columns A and D. Treasury securities, the London consequence of these fees, the coupon Exclude from this schedule: Interbank Offered Rate (LIBOR), etc. rate of the pass-through is lower than (1) All adjustable-rate mortgage Examples of lagging market indexes are that of the WAC of the underlying holdings that are on nonaccrual status. (2) All collateralized mortgage the various published FHLB cost-of- mortgages. Therefore, to estimate the obligations (CMOs) and real estate funds indexes and the National Average WAC of the mortgage pool, the fees mortgage investment conduits. Contract Rate for the Purchase of should be added back to the coupon Previously Occupied Homes. rate. Column Instructions (2) Lifetime Interest Rate Cap. The Distribute the balance of selected lifetime cap is the upper limit on the Examples assets in accordance with the mortgage rate that can be charged over An adjustable-rate permanent loan procedures described for Columns A the life of a loan. This lifetime loan cap secured by a first lien on a 1–4 family through I below. is expressed in terms of the initial rate. residence repricing quarterly whose Report in Column A the balance of the For example, if the initial mortgage rate current rate is 7.25% and has a lifetime bank’s ARM holdings which are based is 7% and the lifetime cap is 5%, the cap of 10%, no periodic cap, and based on the current market index, reprice 6 maximum interest rate that the bank can on the COFI index would be reported in months or less, and have no periodic charge over the life of the loan is 12%. Items 4 and 5, Column I. cap. (3) Periodic Cap. A periodic cap limits An ARM pass-through security, Report in Column B the balance of the the amount that the interest rate may repricing annually whose current bank’s ARM holdings which are based increase or decrease at the reset coupon is 7.75% and has a lifetime cap on the current market index, reprice 6 (repricing) date. The periodic cap is of 14.25%, periodic cap of 200 bp, and months or less, and have a periodic cap. expressed in basis points (bp). For based on the Treasury index would be Report in Column C the balance of the example, the bank owns a 7% reported in Items 6a and 7, Column E. bank’s ARM holdings which are based adjustable-rate mortgage loan. If the Note the WAC of the underlying on the current market index, reprice, periodic cap is 100 bp, then the mortgages in this case is estimated to be over 6 months through 1 year, and have maximum rate the bank can charge at 8.5%, which is the pass-through rate of no periodic cap. the next reset date is 8%. Even if the 7.75% plus 75 bp. Report in Column D the balance of the indexing rate rose by 150 bp, making the For purposes of this supplemental bank’s ARM holdings which are based fully indexed mortgage rate 8.5%, the schedule the following definitions on the current market index, reprice bank could only charge 8% at the next apply: over 6 months through 1 year,, and have reset date. A floating or adjustable rate is a rate a periodic cap equal to or less than 150 (4) Reset Frequency. The reset or that varies, or can vary, in relation to an bp. repricing frequency is how often the index, to some other interest rate such Report in Column E the balance of the contract permits the interest rate on a as the rate on certain U.S. Government bank’s ARM holdings which are based loan to be changed (e.g., daily, monthly, securities or the bank’s ‘‘prime rate,’’ or quarterly, semiannually, annually) to some other variable criterion the 16 For purposes of this schedule, available-for-sale without regard to the length of time exact value of which cannot be known debt securities are to be reported on the basis of between the report date and the date the in advance. Therefore, the exact rate the their fair value, while held-to-maturity debt securities are to be reported on the basis of their rate can next change. loan or security carries at any amortized cost. Therefore, throughout the Columns A through I on Schedule 4 subsequent time cannot be known at the instructions to this schedule, references to the list the two major indices, current and time of origination or acquisition. carrying value should be read as such. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39555 on the current market index, reprice Item Instructions Appendix 3—Risk Weight Tables over 6 months through 1 year, and have In Items 2 through 9, distribute, in a periodic cap greater than 150 bp. This appendix contains the risk accordance with column instructions, Report in Column F the balance of the weights that would be used in the the carrying value as well as the bank’s ARM holdings which are based proposed supervisory model. Table 1 on the current market index, reprice weighted average coupon rate of the provides the risk weights used for the over 1 year, and have no periodic cap. bank’s ARM holdings. baseline module and reporting Schedule Report in Column G the balance of the Items 2 and 3: Report the bank’s ARM 1. Table 2 provides the risk weights holdings which are within 200 bp of bank’s ARM holdings which are based used for the fixed-rate mortgage their lifetime cap. on the current market index, reprice supplemental module and Schedule 2 Items 4 and 5: Report the bank’s ARM over 1 year, and have a periodic cap. while Table 3 provides the risk weights Report in Column H the balance of the holdings which are 201–400 bp from their lifetime cap. used for adjustable-rate mortgages bank’s ARM holdings which are based reported in Schedule 3. Table 4 on the lagging market index and Items 6 and 7: Report the bank’s ARM provides the risk weights used for reprice1 month or less. holdings which are 401–600 bp from Report in Column I the balance of the their lifetime cap. adjustable-rate mortgages reported in bank’s ARM holdings which are based Items 8 and 9: Report the bank’s ARM Schedule 4. on the lagging market index and reprice holdings which are greater than 600 bp over 1 month. from their lifetime cap. 39556 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39557 39558 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules BILLING CODE 6714±01±C Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39559 39560 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39561 39562 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39563 39564 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39565 BILLING CODE 6714±01±C 39566 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Appendix 4—Technical Description of (4) Liabilities: The only set of risk were obtained from the OTS as part of Supplemental Modules and Risk weights used for liabilities is a separate data request by the agencies. Weights represented by the percentage price Representative benchmark fixed-rate This appendix is intended to provide change for a semi-annual interest- mortgage instruments for Schedule 1 detailed information on the methods bearing instrument with an assumed were drawn from a combination of used to derive the risk weights used in coupon and yield equal to 3.75%.18 hypothetical mortgage pass-through the supervisory measurement system. (5) Off-Balance Sheet Positions: The instruments and mortgage pool Descriptions of the derivation of non- risk weights for interest rate futures, securities listed in the OTS Asset and mortgage risk weights are provided, forwards and swaps are the same as Liability Price Tables. The mortgage followed by the descriptions for fixed those applied to the ‘‘All Other’’ pool security price information and adjustable-rate mortgage risk category. Off-balance sheet positions contained in the OTS Asset and weights. Titles and locations of with amortizing features are assigned Liability Price Tables were calculated reference documents are also provided. the same risk weights as the ‘‘Other using the OTS Net Portfolio Value Amortizing’’ category. Model. A brief overview of the pricing I. Non-Mortgage Risk Weights methodology in The OTS Net Portfolio The non-mortgage risk weights were B. Derivation of Non-Mortgage Risk Value Model Manual, published in derived using hypothetical market Weights November 1994, states that ‘‘the model instruments that are representative of The prices and risk weights for each uses the options-based approach to the asset or liability category that is rate scenario were calculated in the determine the market value of 1 to 4 measured. Each weight approximates following manner: family mortgages. Cash flows consist of the percentage change in the price of the (1) The benchmark instruments were scheduled principal payments, interest, benchmark instruments given a 200 priced at par in the base case, or current and prepaid principal. Prepayments are basis point, instantaneous and uniform interest rate environment. Using the modeled using a prepayment equation shift in market interest rates. Separate coupon and maturity of the instruments that relates the prepayment rate for a risk weights are constructed for the and static discounted cash flow particular period to, among other rising and falling interest rate scenarios analysis, the bond-equivalent yields factors, the difference between the for the following categories: were calculated. mortgage coupon rate and the current market interest rate. Scheduled (1) Other amortizing assets; (2) Prices for the benchmark principal and interest cash flows are (2) Zero or low coupon assets; instruments were then calculated for the (3) All other assets; estimated by amortizing the remaining (4) Liabilities; and rising and declining rate scenarios by balance in each period over its (5) Off-balance sheet. shifting the bond-equivalent yields up remaining term. To calculate market and down by 200 basis points. The values in each of the alternate interest A. Benchmark Instruments for Non- present values of the expected cash Mortgage Risk Weights rate scenarios, cash flows for that flows in each scenario were then scenario are discounted by the The benchmark instruments for each determined to arrive at the new price for simulated Treasury rates for that category of assets and liabilities, each instrument. scenario plus the option-adjusted corresponding maturities, coupons and (3) The percentage change in the price spread.’’ For additional detail and bond-equivalent yields are listed below. from the base case price of par model specifications, refer to The OTS (1) Other Amortizing Assets: For other represents the risk weight for the Net Portfolio Value Model, published by (non-mortgage) amortizing assets, a benchmark instrument in the the OTS, Risk Management Division, benchmark monthly amortizing corresponding rate scenarios. If the risk Washington, District of Columbia. instrument with an original maturity weight was determined to be less than Copies of the aforementioned equal to the end point of the specific 1 percentage point, it was expanded to publication are available for review in time band; a remaining maturity equal the nearest 5 basis points interval. If the the FDIC Reading Room, 550 North 17th to the midpoint of the time band; and risk weight was greater than 1 Street, N.W., Washington, District of a coupon and bond-equivalent yield percentage point, it was rounded to the Columbia, and the in the OCC Library 17 equal to 7.50% was used. No nearest 10 basis points interval. at 250 E Street SW., Washington, prepayments are assumed for this District of Columbia. category of instruments. II. Treatment of Fixed-rate Mortgages and Derivation of Risk Weights The OTS model projects prices for (2) Zero- or Low-Coupon Assets: The numerous fixed-rate and adjustable-rate risk weights for zero- or low-coupon Office of Thrift Supervision Pricing mortgage securities with various instruments were calculated using the Information weighted average coupons (WAC) and percentage change in the price of a zero- WARM given different interest rate coupon instrument with an assumed Representative benchmark mortgage instruments used in the calculation of scenarios. Price tables are provided for maturity equal to the mid-point of each different types of mortgage pool time band and a bond-equivalent yield risk weights for Schedules 1 through 4 were based on instruments available in securities. Each table contains mortgage of 7.50%. pool security prices as a percentage of (3) All Other Assets: The risk weights the Office of Thrift Supervision (OTS) Asset and Liability Price Tables as of the underlying mortgage balance in the for the ‘‘All Other’’ category were base case (current interest rates) as well calculated assuming semi-annual September 30, 1994. Publicly available data on certain coupon ranges and as price projections for interest rate interest payments, a maturity equal to movements up and down 400 basis the mid-point of each time band, and an weighted average remaining maturities (WARM) not specifically presented in points in 100 basis point increments. assumed coupon and yield equal to Fixed-rate residential mortgage assets the OTS Asset and Liability Price Tables 7.50%. have embedded options that make the value of the instrument more sensitive 17 For the third quarter of 1994, the average 18 The 3.75% coupon approximates the effective effective yield on earning assets at all commercial cost of interest-bearing liabilities at all commercial to interest rate changes than fixed banks was approximately 7.50% on an annualized banks for the third quarter of 1994 on an annualized maturity instruments. In order to more basis. basis. effectively analyze the impact of Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39567 embedded options on the value of this mortgages with attributes most through H of Schedule 1 as shown in asset class, additional reporting representative of the mortgage market as Table 1. The balances in each time band schedules are required depending on of September 30, 1994. Balances would be assigned risk weights equal to the amount of an institution’s mortgage reported by banks would be assigned the price sensitivity of the benchmark holdings in relation to its total assets. risk weights corresponding to these instruments chosen for that specific Both one-to-four family residential benchmark instruments. It is believed time band. The benchmark instrument mortgage loans and pass-through that the benchmark risk weights will for the first three time bands (Columns securities are considered mortgage provide reasonable approximations of B, C, and D) on Schedule 1 are monthly holdings for the purposes of these the price sensitivity of an institution’s amortizing instruments with original schedules. CMOs and other mortgage actual holdings. maturities equal to the end point of the derivative securities are accorded 1. Benchmark Instruments for Schedule specific time band; remaining maturities separate treatment as described in the 1 equal to the midpoint of each time band; body of the Policy Statement. For Schedule 1, outstanding balances and a coupon and bond-equivalent yield A. Benchmark Instruments would be reported according to their equal to 7.50%. No prepayments are Risk weights have been derived from remaining maturity in one of seven time assumed for those time bands. a group of benchmark fixed-rate bands represented by Columns B TABLE 1.ÐFIXED-RATE MORTGAGES RISK WEIGHT DERIVATIONS FOR SCHEDULE 1 B DEFGH Column C 3 Months to 1 ≤ 3 months year 1 to 3 years 3 to 5 years 5 to 10 years 10 to 20 years > 20 years Source ...... Discounted Discounted Discounted OTS Data ...... OTS Data ...... OTS Data ...... OTS Data. Cash Flow. Cash Flow. Cash Flow. The benchmark mortgage instruments 2. Benchmark Instruments for Schedule contained in the OTS Asset and for the remaining four time bands are as 2 Liability Price Tables as of 9/30/94 as follows: The benchmark instruments used to well as data obtained from the OTS in (1) Column E (3 to 5 years): 7-year derive the risk weights for Schedule 2 a separate request by the agencies. As fixed-rate balloon mortgage pool include the following: previously noted, the OTS price tables security with a 48-month WARM and a (1) Column A (0–5 years): 7-year present prices of mortgage pool 7.50% WAC; fixed-rate balloon mortgage pool securities based on bond-equivalent security with a 48 month WARM; yields, given an increase and decrease (2) Column F (over 5 to 10 years): 7- (2) Column B (Over 5 to 10 years): 7- in interest rates from 100 to 400 basis year fixed-rate balloon mortgage pool year fixed-rate balloon mortgage pool points in 100 basis point increments. security with a 72-month WARM and a security with a 72 month WARM; The supervisory measurement system 7.50% WAC; (3) Column C (Over 10 to 20 years): risk weights are derived using the 200 15-year fixed-rate mortgage pool (3) Column G (over 10 to 20 years): 15- basis point increase and decrease security with a 160 month WARM; year fixed-rate mortgage pool security scenarios. with a 160-month WARM and a 7.50% (4) Column D ( Over 20 years): FHLMC/FNMA 30-year fixed-rate Table 2 includes prices for the WAC; mortgage pool security with a 330 representative mortgage instrument (4) Column H (over 20 years): month WARM. chosen for the first column of Schedule FHLMC/FNMA 30-year fixed-rate The weighted average coupon rates of 2, which is a 7-year fixed-rate balloon mortgage pool security with a 330- the benchmark instruments were the with a 48-month WARM. All mortgage month WARM and a 7.50% WAC. midpoints of the coupon ranges with the holding balances reported in the 0–5 The coupon rate of 7.50 percent was exception of those coupons equal to or year column would receive a risk weight chosen for consistency with the average less than 6.75 percent and equal to or equal to the percentage change in price greater than 9.76 percent. For those effective annualized yield on earning for this instrument given ±200 basis coupon ranges, the WACs used were assets at all commercial banks as of point rate shifts. Price changes for each 6.50 percent and 10.50 percent benchmark vary depending on the September 30, 1994. Consideration was respectively. also given to the average dollar amount particular WAC as depicted in the table. of outstanding 30 year Federal National B. Derivation of Fixed-rate Mortgage The midpoint of each WAC range was Mortgage Association (FNMA) mortgage Risk Weights selected to determine which benchmark pass-through securities in September The following examples have been instrument to use from the OTS price 1994. taken directly from the information table. TABLE 2.Ð7±YEAR FIXED-RATE BALLOON WITH A 48±MONTH WARM PRICES AS A PERCENT OF THE UNDERLYING MORTGAGE BALANCE AS OF SEPTEMBER 30, 1994 0±5 Year time band benchmark Interest rate scenario Coupon ±200 bp 0 bp +200 bp ≥6.75% ...... 101.57 96.01 90.26 39568 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules TABLE 2.Ð7±YEAR FIXED-RATE BALLOON WITH A 48±MONTH WARM PRICES AS A PERCENT OF THE UNDERLYING MORTGAGE BALANCE AS OF SEPTEMBER 30, 1994ÐContinued 0±5 Year time band benchmark Interest rate scenario Coupon ±200 bp 0 bp +200 bp 6.76%±≤7.25% ...... 102.54 97.50 91.77 7.26%±≤7.75% ...... 103.17 98.76 93.10 7.76%±≤8.25% ...... 103.74 100.01 94.49 8.26%±≤8.75% ...... 104.33 101.23 96.00 8.76%±≤9.25% ...... 104.89 102.26 97.47 9.26%±≤9.75% ...... 105.34 102.99 98.74 >9.75% ...... 106.30 104.12 100.98 Example of a Risk Weight Calculation: or ¥5.7%.) Negative 5.7% serves as the weight for this benchmark mortgage The risk weights for the 7.26%-7.75% risk weight for the benchmark mortgage becomes 4.5% in the -200 bp scenario. coupon range are calculated as follows: in the +200 bp scenario. As a result, all Consequently, all balances in this item Using 7.50 percent as the midpoint of balances reported on Schedule 2, in the receive the 4.5% risk weight in the the coupon range, the base case price as 0–5 year remaining maturity column, declining rate analysis. The of September 30, 1994, for a 7.50 and the 7.26%–7.75% coupon row aforementioned method for calculating percent, 7-year fixed-rate balloon would receive a risk weight of ¥5.7 in the risk weights is used to determine the mortgage, with a 48 month WARM is the rising rate analysis. risk weights for the other mortgage 98.76. In the +200 bp scenario, the base In the –200 bp scenario, the base price instruments. Tables 3, 4, and 5 are the price of 98.76 is subtracted from +200 of 98.76 is subtracted from the –200 bp price tables for the other three fixed-rate bp price of 93.10: (93.10¥98.76= price of 103.17: (103.17¥98.76=4.41). ¥5.66). The absolute change is ¥5.66 The absolute change is 4.41 representing benchmark instruments used in the representing a percentage decrease in a percentage increase in price of 4.5% supervisory measurement system. price of ¥5.7% (¥5.66/98.76=¥0.057 (4.41/98.76=0.0446 or 4.5%). The risk TABLE 3.Ð7-YEAR FIXED-RATE BALLOON WITH A 72-MONTH WARM PRICES AS A PERCENT OF THE UNDERLYING MORTGAGE BALANCE AS OF SEPTEMBER 30, 1994 Coupon >5±10 year time band benchmark Interest rate scenario ¥200 bp 0 bp +200 bp ≤6.75% ...... 101.24 93.90 86.47 6.76%¥≤7.25% ...... 102.48 95.89 88.44 7.26%¥≤7.75% ...... 103.25 97.57 90.19 7.76%¥≤8.25% ...... 103.94 99.211 92.02 8.26%¥≤8.75% ...... 104.63 100.79 93.98 8.76%¥≤9.25% ...... 105.30 102.14 95.89 9.26%¥≤9.75% ...... 105.87 103.10 97.55 ≤9.75% ...... 107.09 104.57 100.53 TABLE 4.Ð15-YEAR FIXED-RATE POOL WITH A 160-MONTH WARM PRICES AS A PERCENT OF THE UNDERLYING MORTGAGE BALANCE AS OF SEPTEMBER 30, 1994 >10±20 year time band benchmark Interest rate scenario Coupon ¥200 bp 0 bp +200 bp ≤6.75% ...... 99.74 91.29 83.12 6.76%¥≤7.25% ...... 101.39 93.48 85.28 7.26%¥≤7.75% ...... 102.74 95.55 87.40 7.76%¥≤8.25% ...... 103.93 97.59 89.59 8.26%¥≤8.75% ...... 105.09 99.64 91.93 8.76%¥≤9.25% ...... 106.31 101.70 94.45 9.26%¥≤9.75% ...... 107.53 103.63 96.99 ≤9.75% ...... 109.79 106.72 101.53 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39569 TABLE 5 30-YEAR FIXED-RATE POOL WITH A 330-MONTH WARM PRICES AS A PERCENT OF THE UNDERLYING MORTGAGE BALANCE AS OF SEPTEMBER 30, 1994 20 year time band benchmark Interest rate scenario Coupon ¥200 bp 0 bp +200 bp ≤6.75% ...... 97.78 86.20 75.61 6.76%¥≤7.25% ...... 100.13 89.33 78.66 7.26%¥≤7.75% ...... 101.87 92.07 81.46 7.76%¥≤8.25% ...... 103.36 94.73 84.33 8.26%¥≤8.75% ...... 104.77 97.36 87.33 8.76%¥≤9.25% ...... 106.20 99.97 90.52 9.26%¥≤9.75% ...... 107.67 102.49 93.80 ≤9.75% ...... 110.67 106.91 100.15 III. Treatment of Adjustable-Rate representative of the ARM securities (1) Reset Frequency—0 to 6 Months: Mortgages and Derivation of Risk outstanding. In an effort to maintain Six month Constant Maturity Treasury Weights consistency with the risk weights (CMT) index, 275 basis point margin, Adjustable-rate mortgage loans and applied to the non-mortgage products four month reset period, 100 basis point securities (ARMS) have price and FRM holdings in Schedule 1, a periodic cap and 500 basis points to the sensitivities that are substantially 7.5% WAC was selected for all of the lifetime cap; different than fixed-rate mortgage assets benchmark ARM instruments in (2) Reset Frequency—6 Months to 1 primarily due to their coupon reset Schedule 1 as well as for Schedule 3. Year: One year CMT, 275 basis point features. The coupon adjustments are 1. Benchmark Instruments for Schedule margin, six month reset period, 200 generally limited by caps and floors 1 basis point periodic cap and 500 basis both for the life of the mortgage and also points to the lifetime cap; at their reset period. These caps are The benchmark instruments for (3) Reset Frequency—Greater than 1 known as lifetime caps and periodic Schedules 1, 3, and 4 represent the Year: Three year CMT, 275 basis point caps. In general, there are three factors characteristics of the ARM mortgages margin, 18 month reset period, 200 basis that most influence the price sensitivity most prevalent in the market place point periodic cap and 500 basis points of an ARM: the reset frequency, the according to reported index, margin, to the lifetime cap; periodic cap, and the lifetime cap. periodic cap, and distance to lifetime A review of ARM price behavior cap. Schedules 1 and 3 are based on (4) Reset Frequency—Near Lifetime reveals that the relationship between the instruments with 7.5% WACs and share Cap: One year CMT, 275 basis point periodic and lifetime caps and the effect other common characteristics, hence, all margin, six month reset period, no of that relationship on ARM prices is of the benchmark instruments and risk periodic cap and 200 basis points from complex and varies based upon the weights used for Schedule 1 may be the lifetime cap. likelihood that either cap will become found in Schedule 3. However, the 2. Benchmark Instruments for Schedule binding. Consequently, information on benchmark WACs in Schedule 4 do not 3 both the periodic cap and the lifetime necessarily fall precisely on a 7.5 cap would be reported by institutions percent WAC. To obtain the 7.5 percent The benchmark instruments for with significant ARM holdings. WAC sensitivity for Schedules 1 and 3 Schedule 3 represent the characteristics Benchmark mortgages representative of an additional interpolation was used. of the ARM mortgages most prevalent in the ARM market have been identified The interpolation used was the the market place according to reported and are used to assign risk weights. following: index, margin, periodic cap, and distance to lifetime cap. Banks are Supplemental reporting schedules were (1) for the 6-month and 1-year ARMs: required to report their ARM holdings also developed to capture the effect of P7.5=1/3[P8.5–P7.0]+P7.0; these characteristics on the price of by reset frequency, periodic interest rate (2) for the 3-year ARMs: P7.5=1/3[P9.5– ARMs. cap levels, and distance from the P7.5]+P6.5. lifetime cap in Schedule 3. The A. Benchmark ARM Instruments Where as Px=PriceWAC(X) benchmark instruments for each reset The coupon ranges provided in The benchmark instruments for frequency and lifetime cap are Schedule 4 were chosen to be Schedule 1 are as follows: summarized in Table 6. 39570 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules TABLE 6.ÐBENCHMARK INSTRUMENTS FOR SCHEDULE 3 RESET frequency Over 6 months to 1 year: 1 Year treasury 275 margin 330 Over 1 year: 3 Year treasury 275 6 Months or less: 6 Month treasury 275 month WARM 7.50% WAC margin 330 month WARM 7.50% margin 330 month WARM 7.50% WAC WAC Cap <150bp: 100 Cap > 150bp: 200 No Cap: No peri- Cap: 100 bp peri- No Cap: No peri- bp periodic cap and bp periodic cap No Cap: No peri- Cap: 200 bp peri- odic cap odic cap and floor odic cap floor and floor odic cap odic cap DISTANCE FROM LIFETIME CAP Instruments 200 basis points or less from lifetime cap: 200 basis points Instruments 201 to 400 basis points from lifetime cap: 300 basis points. Instruments 401 to 600 basis points from lifetime cap: 500 basis points. Instruments more than 600 basis points from lifetime cap: 700 basis points. 3. Benchmark Instruments for Schedule periodic and lifetime caps as shown in 4 Table 7. Schedule 4 collects information on an ARM’s rate index, reset frequency, TABLE 7.ÐADJUSTABLE-RATE MORTGAGE INFORMATION FOR SCHEDULE 4 Current market index by reset frequency Lagging market index by reset frequency 6 Months or less Over 6 months to 1 year Over 1 year Cap of 150 Cap of more 1 Month or Over 1 month No cap Cap No Cap bp or less than 150 No Cap Cap less Treasury ARM securities were used as TABLE 8.ÐBENCHMARK WACS FOR 6 TABLE 9.ÐBENCHMARK WACS FOR the benchmark for the class of mortgages MONTH TREASURY ARMS 12-MONTH TREASURY ARMS labeled Current Market Index. COFI ARM securities were used as the Bench- Bench- benchmark for the class of mortgages mark mark Weighted average coupon WAC Weighted average coupon WAC labeled as Lagging Market Index. Within (per- (per- each reset frequency and cap range for cent) cent) the Current Market Index and Lagging Market Index mortgage classes, 4.75% and under ...... 4.00 4.75% and under ...... 4.00 4.76% to 6.25% ...... 5.50 benchmark instruments were used. The 4.76% to 6.25% ...... 5.50 6.26% to 7.75% ...... 7.00 6.26% to 7.75% ...... 7.00 WAC and cap benchmarks for the Over 7.75% ...... 8.50 instruments used for Schedule 4 are as Over 7.75% ...... 8.50 follows: (4) Over 6 Months to 1 Year, Cap of (2) 6 Months or Less, Cap: The same 150 Basis Points of Less: The same a. Current Market Index By Reset benchmark WAC’s as those listed in Frequency benchmark WAC’s as those listed in Table 7 were used for the benchmark Table 10 were used for the benchmark instruments in this category, subject to (1) 6 Months or Less, No Cap: 6-month instruments in this category, subject to a 100 basis point periodic cap and floor. Treasury ARM securities, as published a 100 basis point periodic cap and floor. in the OTS price tables as of September (3) Over 6 Months to 1 year, No Cap: (5) Over 6 Months to 1 Year, Cap of 30, 1994, subject to the aforementioned 12-Month Treasury ARM securities, as More Than 150 Basis Points: The same linear interpolation were used for this published in the OTS price tables as of benchmark WAC’s as those listed in category. OTS price tables provide price September 30, 1994, were used for this Table 10 were used for the benchmark data on 7.00 percent WAC and 8.50 category. Because the WAC ranges instruments in this category, subject to provided in the OTS price tables vary a 200 basis point periodic cap and floor. percent WAC 6-Month Treasury ARM based on the underlying index, the (6) Over 1 Year, No Cap: 36–Month securities. The benchmark weighted WAC ranges developed for the Treasury ARM securities, as published average coupons for each WAC range supervisory measurement system also in the OTS price tables as of September are provided in Table 8. vary with the underlying index. OTS 30, 1994, were used for this category. price tables provide price information Because the WAC ranges provided in on 7.00 percent WAC and 8.50 WAC the OTS price tables vary based on the 12–Month Treasury ARM securities. underlying index, the WAC ranges The benchmark weighted average developed for the supervisory coupon used for the WAC ranges are measurement system also vary with the provided in Table 9. underlying index. OTS price tables Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39571 provide price information on 6.50 developed for the supervisory Schedules 1,3, and 4 were based on percent WAC and 9.50 WAC 36-Month measurement system also vary with the ARM securities available in the OTS Treasury ARM securities. The underlying index. OTS price tables Asset and Liability Price Tables as of benchmark weighted average coupons provide price information on 6.00 September 30, 1994 and industry data. used for the WAC ranges are provided percent WAC and 7.00 WAC 1 Month The OTS price tables do not contain in Table 10. COFI ARM securities. No periodic cap prices for the benchmark instruments or floor were used for the benchmark used in the supervisory measurement TABLE 10.ÐBENCHMARK WACS FOR instrument in this category. Table 11 system. 36 MONTH TREASURY ARMS provides the benchmark weighted average coupons used for each WAC Using the OTS price tables, a series of Bench- range. linear interpolations was performed to mark generate prices for the benchmark Weighted average coupon WAC instruments, using bond-equivalent (per- TABLE 11.ÐBENCHMARK WACS FOR 1 cent) MONTH COFI ARMS yields, selected for the supervisory measurement system. Prices were 5.50% and under ...... 4.50 Bench- calculated for each WAC underlying a 5.51% to 8.00% ...... 6.50 mark benchmark instrument (e.g., for Weighted average coupon WAC 8.01% to 10.50% ...... 9.50 benchmark instruments tied to the 6- Over 10.50% ...... 11.50 (per- cent) month CMT-based ARM, WACs of 4.00 (7) Over 1 Year, Cap: The same percent, 5.50 percent, 7.00 percent, 7.50 5.00% and under ...... 4.00 percent and 8.50 percent were benchmark WAC’s as those listed in 5.01% to 6.50% ...... 6.00 Table 11 were used for the benchmark 6.51% to 8.00% ...... 7.00 calculated). Prices for the benchmark instruments in this category, subject to Over 8.00% ...... 9.00 instruments for each of the selected a 200 basis point periodic cap and floor. WACs were interpolated for selected (2) Over 1 Month: The same loan characteristics (i.e., margin, b. Lagging Market Index By Reset benchmark WAC’s as those listed in lifetime cap, and reset frequency) in Frequency Table 12 were used for the benchmark each of the three interest rate scenarios (1) 1 Month or Less: 1 Month COFI instruments in this category, subject to used in the supervisory measurement ARM securities, as published in the a 200 basis point periodic cap and floor. system (i.e., +200 basis points, base OTS price tables as of September 30, case, and ¥200 basis points). Table 12 1994, were used for this category. B. Derivation of Benchmark Instrument Prices and Risk Weights presents the OTS price table for a 6 Because the WAC ranges provided in month CMT-based ARM with a 7.0 the OTS price tables vary based on the Benchmark ARM instruments used in percent WAC. underlying index, the WAC ranges the calculation of risk weights for TABLE 12.Ð6-MONTH TREASURY ARM SECURITY PRICES AS OF SEPTEMBER 30, 1994 (WAC 7.00 PERCENT) ARM parameters Interest rate scenario Lifetime cap Months to ∂200 Price Margin (percent) reset ¥200 Price 0 Base 200 basis points ...... 11.0 2 100.85 99.64 95.13 200 basis points ...... 11.0 6 101.34 99.42 94.03 200 basis points ...... 15.0 2 100.86 100.07 97.58 200 basis points ...... 15.0 6 101.35 99.85 96.32 350 basis points ...... 11.0 2 104.30 101.68 95.29 350 basis points ...... 11.0 6 104.52 100.73 94.18 350 basis points ...... 15.0 2 104.39 103.02 99.02 350 basis points ...... 15.0 6 104.61 102.02 97.60 In addition to the criteria established benchmark instrument. With each layer Office of the Comptroller of the in the OTS price table presented above, of interpolation, a new set of prices was Currency the ARM securities have the following produced. At the completion of the Dated: June 29, 1995. characteristics: requisite number of interpolations (1) WARM of 330 months; needed to generate a price estimate Eugene A. Ludwig, (2) Lifetime floor 1200 basis points given the set of criterion for the Comptroller of the Currency. below the lifetime cap; and variables underlying a benchmark By Order of the Board of Governors of the (3) Periodic cap and floor of 100 basis instrument, the resulting price table was Federal Reserve System. points. The OTS price table provides the data used to calculate the risk weights for Dated: July 7, 1995. for the linear interpolation process. As that particular instrument. Once the William Wiles, stated above, an interpolated price for interpolated price table was developed, Secretary of the Board. each property of the benchmark the risk weights were calculated in the By order of the Board of Directors. instrument is derived through this same manner as those for fixed-rate process. mortgages. Dated at Washington, DC this 27th day of For each value of a selected variable, June, 1995. a linear interpolation was performed to generate a particular price of the 39572 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Federal Deposit Insurance Corporation. Jerry L. Langley, Executive Secretary. [FR Doc. 95–18099 Filed 8–1–95; 8:45 am] BILLING CODE 4810±33±P, 6210±01±P, 6714±01±P federal register August 2,1995 Wednesday 1940; ProposedRules Under theInvestmentCompanyActof Status ofInvestmentAdvisoryPrograms 17 CFRParts270and274 Commission Exchange Securities and Part III 39573 39574 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules SECURITIES AND EXCHANGE Counsel, or Eric C. Freed, Special portfolio management services on a COMMISSION Counsel, (202) 942–0660, Office of Chief discretionary basis to a large number of Counsel, Division of Investment individual clients. 17 CFR Parts 270 and 274 Management, 450 Fifth Street NW., Revised proposed rule 3a–4 would Washington, DC 20549. exclude any investment advisory [Release No. IC±21260; IA±1510; S7±24±95] SUPPLEMENTARY INFORMATION: The program from the definition of RIN 3235±AG07 Securities and Exchange Commission investment company provided that the (‘‘Commission’’) is publishing for program is organized and operated in 1 Status of Investment Advisory comment revised proposed rule 3a–4 compliance with the rule’s conditions. Programs Under the Investment [17 CFR 270.3a–4] under the Investment The revised proposed rule would Company Act of 1940 Company Act of 1940 [15 U.S.C. 80a–1 require that: (i) Each client’s account be et seq.] (the ‘‘Investment Company managed on the basis of the client’s AGENCY: Securities and Exchange Act’’). Rule 3a–4 would provide a financial situation, investment Commission. nonexclusive safe harbor from the objectives, and instructions; (ii) the ACTION: Proposed rule and form; request definition of investment company for sponsor of the program obtain for comment. certain programs under which information from each client that is investment advisory services are necessary to manage the client’s account SUMMARY: The Commission is individually; (iii) the sponsor and publishing for public comment revised provided to clients (‘‘investment advisory programs’’). The Commission portfolio manager be reasonably proposed rule 3a–4 under the available to consult with clients; (iv) also is proposing new Form N–3a4 [17 Investment Company Act of 1940, each client have the ability to impose CFR 274.222] under the Investment which would provide a nonexclusive reasonable restrictions on the Company Act, which would be filed by safe harbor from the definition of management of the account; (v) each sponsors of investment advisory investment company for certain client be provided with a quarterly programs that intend to rely on rule 3a– programs under which investment statement containing a description of all 4. Finally, the Commission is requesting advisory services are provided to activity in the client’s account; (vi) each comment with respect to certain issues clients. Programs that are organized and client retain the indicia of ownership of that investment advisory programs raise operated in a manner consistent with all securities and funds in the account; under the Investment Advisers Act of the rule’s conditions would not be (vii) the sponsor establish and effect required to register under the 1940 (the ‘‘Advisers Act’’). written procedures that are reasonably Investment Company Act or to comply TABLE OF CONTENTS designed to ensure that each of the with the Act’s substantive requirements. Executive Summary conditions of rule 3a–4 is met; (viii) if The Commission also is proposing Form I. Background the sponsor designates another person N–3a4 under the Investment Company II. Discussion to perform certain obligations under the Act, which would be filed with the A. Revised Proposed Rule 3a–4 rule, the sponsor obtain from that Commission by sponsors of programs 1. Role of the Sponsor person a written agreement to perform intending to rely on rule 3a–4. The rule 2. Individualized Treatment those obligations; (ix) the sponsor and form are intended to provide i. Management of Client Accounts maintain and preserve the policies, guidance regarding the status of ii. Client Contact—Initial and Ongoing procedures, agreements and other investment advisory programs under the iii. Reasonable Management Restrictions documents relating to the program in Investment Company Act, and to iv. Quarterly Account Statements the manner set forth in the rule; and (x) v. Minimum Account Size the sponsor furnish to the Commission facilitate Commission examination of 3. Indicia of Ownership persons involved in the operation of i. Ability to Withdraw and Pledge upon demand copies of specified these programs. Finally, in connection Securities documents. The conditions of the with the preparation of an interpretive ii. Right to Vote Securities revised proposed rule are based on the release, the Commission is requesting iii. Right to Receive Confirmations and conditions of a previously proposed comment regarding the application of Other Documents rule, as modified and interpreted in a certain provisions of the Investment iv. Rights as Securityholders series of no-action letters issued by the Advisers Act of 1940 to investment 4. Written Procedures and Agreements Commission staff over the past thirteen advisers participating in investment B. Form N–3a4 years. advisory programs. Programs that are organized and C. Advisers Act Issues Raised by operated in a manner consistent with DATES: Comments on the revised Investment Advisory Programs the rule would not be required to proposed rule and the proposed form III. Cost/Benefit Analysis register under the Investment Company should be received on or before October IV. Summary of Initial Regulatory Flexibility Act or be subject to that Act’s 2, 1995. Analysis V. Statutory Authority provisions. The rule is intended to be a ADDRESSES: Comments should be Text of Revised Proposed Rule and Proposed nonexclusive safe harbor; it is not submitted in triplicate to Jonathan G. Form intended to create any presumption Katz, Secretary, Securities and Exchange about a program that is not organized Executive Summary Commission, 450 Fifth Street NW., and operated in compliance with the Washington, DC 20549. All comment The Commission is publishing for rule. letters should refer to File No. S7–24– public comment revised proposed rule The Commission also is proposing 95. All comments received will be 3a–4 under the Investment Company Form N–3a4 under the Investment available for public inspection and Act to provide a nonexclusive safe copying in the Commission’s Public harbor from the definition of investment 1 If revised proposed rule 3a–4 is adopted, Reference Room, 450 Fifth Street, N.W., company for certain investment interests in investment advisory programs that are Washington, D.C. 20549. organized and operated in compliance with the advisory programs. Investment advisory conditions of the rule would not require registration FOR FURTHER INFORMATION CONTACT: programs typically are designed to under section 5 of the Securities Act of 1933 (15 Rochelle Kauffman Plesset, Senior provide the same or similar professional U.S.C. 77e). Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39575 Company Act. Revised proposed rule portfolio managers usually meet the Under wrap fee and other investment 3a–4 would require Form N–3a4 to be definition of ‘‘investment adviser’’ advisory programs, a client’s account filed by sponsors of programs intending under the Advisers Act 5 and are typically is managed on a discretionary to rely on the rule. required to register under that Act,6 basis in accordance with pre-selected Finally, the Commission is requesting unless they are excepted from the investment objectives. Clients with comment with respect to the application definition of investment adviser 7 or similar investment objectives often of certain provisions of the Advisers Act exempted from registration.8 receive the same investment advice and to investment advisers participating in Included among these investment may hold the same or substantially the investment advisory programs. These advisory programs are those commonly same securities in their accounts. In comments will be considered in the referred to as ‘‘wrap fee programs.’’ In light of this similarity of management, preparation of an interpretive release a wrap fee program, the client is some of these investment advisory dealing with certain issues raised under typically provided with portfolio programs meet the definition of the Advisers Act by investment advisory management, execution of transactions, investment company under the programs. asset allocation, and administrative Investment Company Act, and can be services for a single fee based on assets deemed to be issuing securities for I. Background under management.9 As of year-end purposes of the Securities Act of 1933 In recent years, there has been a 1994, assets in wrap fee programs (‘‘Securities Act’’).11 proliferation of investment advisory totaled approximately $116.8 billion, an Section 3(a)(1) of the Investment programs that typically are designed to increase of 42 percent over a two-year Company Act defines the term provide professional portfolio period.10 investment company generally to management services to a large number include any ‘‘issuer’’ which is engaged of individual clients. These programs unaffiliated investment adviser rather than the primarily in the business of investing, sponsor may serve as the primary contact for its reinvesting, or trading in securities.12 have historically been marketed to clients that participate in the program. See, e.g., clients who are investing an amount of Westfield Consultants Group, supra note . The definition of issuer includes any money less than the amount otherwise 5 15 U.S.C. 80b-1 et seq. organized group of persons, whether or required by portfolio managers but more 6 Section 203(a) of the Advisers Act (15 U.S.C. not incorporated, that issues or proposes than the minimum account size of most 80b–3(a)) requires any person who meets the to issue any security.13 An investment definition of investment adviser and is not advisory program could be considered mutual funds. otherwise exempt from registration to register with Investment advisory programs the Commission. Section 202(a)(11) of the Advisers to be an issuer because the client typically are organized and Act (15 U.S.C. 80b–2(a)(11)) defines ‘‘investment accounts in the program, taken together, administered by a sponsor, which adviser’’ as ‘‘any person who, for compensation, could be considered to be an organized engages in the business of advising others, either group of persons.14 Investors in the provides, or arranges for the provision directly or through publications or writings, as to of, asset allocation advice and the value of securities or as to the advisability of program could be viewed as purchasing administrative services.2 In some investing in, purchasing, or selling securities, or securities in the form of investment 15 programs, the sponsor or its employees who, for compensation and as part of a regular contracts. If an investment advisory business, issues or promulgates analyses or reports also provide portfolio management concerning securities . . . .’’ mutual fund asset allocation programs, represented services, including the selection of 7 See section 202(a)(11)(A)–(F) of the Advisers Act 11% of total assets in wrap fee programs as of year- particular securities, to the program’s (15 U.S.C. 80b–2(a)(11)(A)–(F)) (persons excepted end 1994. These programs differ from traditional clients. In other programs, the sponsor from the definition of investment adviser). A wrap fee programs, in part, in that a client’s assets sponsor of an investment advisory program that is are allocated only among specified mutual funds. selects, or provides advice to clients a broker-dealer or a registered representative of a 11 15 U.S.C. 77a et seq. See In the Matter of Clarke regarding the selection of, a portfolio broker-dealer generally cannot rely on the exception from the definition of investment adviser for broker- Lanzen Skalla Investment Firm, Inc., Investment manager (which may or may not be Company Act Release No. 21140 (June 16, 1995); affiliated with the sponsor).3 In these dealers in section 202(a)(11)(C) of the Advisers Act. See, e.g., National Regulatory Services, Inc. (pub. SEC v. First National City Bank, Litigation Release programs, the sponsor generally is avail. Dec. 2, 1992). That exception is available only No. 4534 [1969–1970 Transfer Binder] Fed. Sec. L. responsible for continuously monitoring to a broker-dealer that provides investment advice Rep. (CCH) ¶ 92592 (Feb. 6, 1970). 12 the portfolio manager selected and its that is ‘‘solely incidental’’ to its brokerage business 15 U.S.C. 80a–3(a)(1). and that does not receive special compensation for 13 Section 2(a)(22) of the Investment Company Act management of client accounts. The the investment advice. Id. The staff is of the view defines issuer generally to include any person who sponsor, rather than the portfolio that an investment advisory program generally is issues any security (15 U.S.C. 80a–2(a)(22)). Under manager, often serves as the primary not incidental to a sponsor’s broker-dealer business section 2(a)(28), a person includes a company, and contact for the client in connection with and, at least in a wrap fee program, the sponsor’s under section 2(a)(8), a company includes any organized group of persons, whether incorporated the program.4 The sponsor and the portion of the wrap fee is special compensation. Id. 8 See section 203(b) of the Advisers Act (15 U.S.C. or not (15 U.S.C. 80a–2(a)(28), 2(a)(8)). 80b-3(b)) (persons exempted from registration). 14 The accounts managed by a particular portfolio 2 The sponsor is often a broker-dealer or mutual Unlike a person excepted from the definition of manager also can be considered an organized group fund adviser or, in some instances, a bank or money investment adviser, a person that meets the of persons under certain circumstances. The management firm. See, e.g., Wall Street Preferred definition but is exempted from registration legislative history of the Investment Company Act Money Managers, Inc. (pub. avail. Apr. 10, 1992) remains subject to the Advisers Act’s antifraud explained that one type of investment company (broker-dealer); Strategic Advisers Inc. (pub. avail. provision, section 206 (15 U.S.C. 80b–6). The involves ‘‘an agency relationship between the Dec. 13, 1988) (mutual fund adviser); Atlantic Bank exemption from registration provided in section individual contributors to the fund and the of New York (pub. avail. June 7, 1991) (bank). The 203(b)(3) of the Advisers Act would not be available management upon whom they confer substantially sponsor also may execute some or all of the as a general matter to the sponsor or portfolio a power of attorney to act as agent in the investment transactions in client accounts. manager of an investment advisory program of the moneys contributed. The group of individual 3 More than one portfolio manager may manage because participation in the program would cause investors is not a legal entity but rather constitutes the client’s assets, depending on the program, the the sponsor or portfolio manager to be holding itself in essence a combination of distinct individual client’s investment objectives, and the size of the out to the public as an investment adviser. See, e.g., interests.’’ H.R. Doc. No. 707, 75th Cong., 3rd Sess. client’s account. See, e.g., Westfield Consultants Resource Bank & Trust (pub. avail. Mar. 29, 1991). 24 (1939). In Prudential Insurance Co. of America Group (pub. avail. Dec. 13, 1991); Rauscher Pierce 9 See paragraph (g)(4) of rule 204–3 under the v. SEC, the court, citing this legislative history, Refsnes, Inc. (pub. avail. Apr. 10, 1992); Wall Street Advisers Act (17 CFR 275.204–3(g)(4)) (defining found that an organized group of persons does not Preferred Money Managers, Inc., supra note . wrap fee program for purposes of wrap fee brochure refer only to identifiable business entities. 326 F.2d 4 Some investment advisory programs, however, requirement). 383 (3rd Cir.), cert. denied, 377 U.S. 953 (1964). are marketed by the sponsor through unaffiliated 10 The Cerulli Report, The State of the Wrap 15 The definition of security in both section investment advisers, such as small financial Account Industry 3 (1995). According to this report, 2(a)(36) of the Investment Company Act (15 U.S.C. planners. In some of these programs, the assets in mutual fund wrap programs, also called Continued 39576 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules program is deemed to be an ‘‘issuer,’’ it the conditions of the rule.18 The Since the proposal of rule 3a–4, the also would be deemed to be an proposed rule would have required that: Division of Investment Management investment company because it is (i) The client receive continuous advice (‘‘Division’’) has responded to numerous engaged in the business of investing, based on its individual needs; (ii) the inquiries with respect to the status of reinvesting, or trading in securities. persons authorized to make investment wrap fee and other types of investment The status of investment advisory decisions have significant contact with advisory programs under the Investment programs under the Investment the client, as described in the rule; (iii) Company Act. The Division has issued Company Act and the Securities Act has each client maintain all indicia of over 20 letters to persons requesting assurance that the Division would not been a subject of debate for twenty-five ownership of the securities in its recommend that the Commission bring years. In 1972, the Commission account; and (iv) each client have the enforcement action with respect to established the Advisory Committee on opportunity and authority to instruct investment advisory programs that are Investment Management Services for the person managing its account to not registered under the Investment Individual Investors (‘‘Advisory refrain from purchasing particular Company Act (the ‘‘no-action letters’’).22 Committee’’) to assist the Commission securities that otherwise might be Each of these letters was conditioned on in developing policies regarding these purchased. The Commission expressed representations that were based programs.16 The Advisory Committee the view that when an investment primarily on the terms of proposed rule published a report generally concluding manager provides each client with 3a–4.23 that an investment advisory program individualized treatment, the likelihood should not be required to register under of a common enterprise existing among II. Discussion the Investment Company Act as long as a group of advisory clients is substantially reduced and no The investment advisory program the program’s clients maintain all industry has developed and matured investment company is created.19 indicia of ownership of the securities in since the original proposal of rule 3a– their accounts, thereby avoiding the Commenters generally opposed the 4 in 1980. During this time period, the ‘‘pooling’’ of client assets.17 proposed rule, arguing, among other Commission has acquired substantial In 1980, the Commission proposed things, that the rule’s conditions were experience with the organization and rule 3a–4 under the Investment burdensome, would cause unnecessary operation of investment advisory Company Act, which would have changes in industry practice, and were programs. This experience has come provided a safe harbor from the too detailed for purposes of a safe from the review of numerous requests 20 definition of investment company for harbor rule. In contrast, one for no-action relief, as well as from investment advisory programs meeting commenter argued that the proposed examinations of sponsors and other rule would have permitted programs registered investment advisers that are 80a–2(a)(36)) and section 2(1) of the Securities Act that are de facto investment companies involved with operating these programs. (15 U.S.C. 77b(1)) includes an ‘‘investment to be excluded from regulation under For many of these programs, registration contract.’’ The Supreme Court, in SEC v. W.J. the Investment Company Act merely by and regulation under the Investment Howey Co., defined an investment contract for meeting ‘‘mechanistic and ritualistic Company Act would not appear to be purposes of the Securities Act as a scheme that 24 ‘‘involves an investment of money in a common conditions,’’ the performance of which necessary. Nevertheless, that the law enterprise with profits to come solely from the is not indicative of individualized in this area has been defined and efforts of others.’’ 328 U.S. 293, 301 (1946). The investment advice being provided.21 redefined principally through a series of Commission has taken the view that an investment The proposed rule was never adopted. no-action letters has created some advisory program could satisfy the common enterprise element of the Howey test if the accounts uncertainty regarding the status of these are discretionary, the investors receive the same or 18 See Release 11391, supra note . Release 11391 programs under the federal securities substantially overlapping investment advice, and also stated that the Commission’s Division of laws. While counsel can (and frequently the investment advice is not ‘‘individualized.’’ See Corporation Finance had indicated that if rule 3a– does) offer advice and issue opinions Individualized Investment Management Services, 4 was adopted, that Division would not recommend Investment Company Act Release No. 11391 (Oct. that the Commission take enforcement action under based on the no-action letters, those 10, 1980), 45 FR 69479 (Oct. 21, 1980) (‘‘Release the Securities Act with respect to the interests in letters do not provide the same degree 11391’’). See also In the Matter of Clarke Lanzen an investment advisory program operated in of certainty that would be provided by Skalla Investment Firm Inc., supra note ; SEC v. accordance with the proposed rule’s requirements. a Commission rule and may not be as Id. at n.15. First National City Bank, supra note. readily accessible. The Commission is 16 The Advisory Committee was established after 19 Id. at note and accompanying text. Although the Commission instituted an enforcement action the statements in the Release 11391 focused on the therefore publishing for comment against an investment adviser and broker-dealer for necessity for each client to be provided with revised proposed rule 3a–4 to provide a operating an unregistered investment company in individualized treatment, the proposed rule also regulatory safe harbor from investment the form of an investment advisory program. While would have included conditions designed to avoid company regulation for programs that the program was advertised as offering the ‘‘pooling’’ of client assets. individualized advice, the adviser invested client 20 E.g., Letter from the American Bar Association satisfy certain conditions. The funds in a virtually identical manner and made to George A. Fitzsimmons, Secretary, SEC 1–2, 4 Commission also is proposing new investment decisions in a generally uniform manner (Jan. 9, 1981), File No. S7–854; Letter from the Form N–3a4, which would be filed with to all clients. SEC v. First National City Bank, supra Investment Counsel Association of America, Inc. to the Commission by sponsors of note . The Division subsequently denied no-action George A. Fitzsimmons, Secretary, SEC 3–4 (Jan. 9, relief to similar investment advisory programs. See, 1981), File No. S7–854; Letter from Neuberger and e.g., Wheat & Co., Inc. (pub. avail. July 9, 1971); Berman to George A. Fitzsimmons, Secretary, SEC 22 In each case, the Division of Corporation Finanswer America/Investments, Inc. (pub. avail. 2 (Jan. 12, 1981), File No. S7–854. Finance also has granted no-action relief with Apr. 26, 1971); Jacobs Persinger & Parker (pub. 21 Letter from the Investment Company Institute respect to registration of interests in the programs avail. Mar. 8, 1971). to George A. Fitzsimmons, Secretary, SEC 2, 4 (Jan. under the Securities Act. 17 Advisory Committee on Investment 9, 1981), File No. S7–854. This commenter also 23 See, e.g., Wall Street Preferred Money Management Services for Individual Investors, pointed out that the proposed rule would have Managers, Inc., supra note ; Rauscher Pierce Small Account Investment Management Services permitted commercial banks, which are excepted Refsnes, Inc., supra note . (Jan. 1973). The Advisory Committee also from regulation under the Advisers Act, to sponsor 24 The Commission, however, recently brought an concluded that the interests in the program (i.e., the investment advisory programs without being enforcement action against a sponsor of an client accounts) should not be required to be subject to the Advisers Act’s prohibitions against investment advisory program that was operating as registered as securities under the Securities Act if conflicts of interest, the Act’s brochure an unregistered investment company. In the Matter the program provides each client with requirements, and inspection by Commission staff. of Clarke Lanzen Skalla Investment Firm, Inc., individualized treatment. Id. at 2. supra note . Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39577 investment advisory programs intending Advisers Act, which sets forth a derived from a provision in the to rely on rule 3a–4.25 separate brochure requirement for originally proposed rule that would sponsors of wrap fee programs.28 The have required each client to be A. Revised Proposed Rule 3a–4 definition of sponsor is broad, and, in furnished with continuous advice as to Revised proposed rule 3a–4 would some investment advisory programs, the investment of funds on the basis of provide a nonexclusive safe harbor from more than one person performing the client’s individual needs.31 the definition of investment company services for the program may meet the Paragraph (a)(1) is intended to for investment advisory programs that definition. Accordingly, paragraph (b) delineate one of the key differences are organized and operated in a manner would provide that if a program has between clients of investment advisers consistent with the rule’s conditions.26 more than one sponsor, the sponsors and investors in investment companies. The revised proposed rule would must designate one person as the Each client of an investment adviser include a number of conditions principal sponsor, and that person typically is provided with intended to ensure that clients in would be responsible for carrying out individualized advice regarding the programs that rely on the rule receive the sponsor’s duties and responsibilities management of the client’s account that individualized treatment. While the under the rule.29 is based on the client’s financial Commission believes that an investment situation and investment objectives. The advisory program that meets the rule’s 2. Individualized Treatment investment adviser of an investment conditions need not be regulated as an Revised proposed rule 3a–4 would company, on the other hand, need not investment company, the Commission contain four provisions that are consider the individual needs of the acknowledges that there may be intended to ensure that clients of company’s shareholders when making investment advisory programs that do investment advisory programs that are investment decisions regarding the not comply with all of the rule’s organized and operated in reliance on company’s portfolio, and has no conditions and yet also should not be the rule receive individualized obligation to ensure that each security regulated as investment companies. treatment. These provisions are based purchased for the company’s portfolio is Thus, revised proposed rule 3a–4 is on provisions of rule 3a–4 as originally an appropriate investment for each intended to be a nonexclusive safe proposed, as those conditions were shareholder. Thus, the clients of an harbor, and is not intended to create any applied in the no-action letters. investment advisory program complying presumption about a program that is not i. Management of Client Accounts. with paragraph (a)(1) would receive organized and operated in compliance Paragraph (a)(1) would require that each individualized advice of a type not with the rule’s requirements.27 client’s account be managed on the basis typically provided to investment of the client’s financial situation, 1. Role of the Sponsor company shareholders. investment objectives, and Unlike the originally proposed rule, Generally, the rule would require the instructions.30 This paragraph is paragraph (a)(1) of the revised proposed ‘‘sponsor’’ of the program or another rule would not require a portfolio person designated by the sponsor to 28 The sponsor of an investment advisory program manager to make separate usually is required to register under the Advisers perform the duties and responsibilities determinations regarding the set forth in the rule. Under paragraph Act and comply with the substantive provisions of that Act and the rules thereunder. See supra appropriateness of each transaction for (b), ‘‘sponsor’’ would be defined as any notes—and accompanying text. Revised proposed each client prior to effecting the person who receives compensation for rule 3a–4 would be available to any sponsor of transaction.32 The revised proposed rule sponsoring, organizing, or administering investment advisory programs, even if the sponsor is excepted from the definition of investment also would modify the Commission’s the program, or for selecting, or prior view that the use of model providing advice to clients regarding the adviser under the Act (e.g., banks) or is exempt from registration. Persons wishing to rely on the portfolios is ‘‘presumptively selection of, persons responsible for revised proposed rule, however, would be required, inconsistent with individualized managing the client’s account in the among other things, regardless of their status under treatment.’’ 33 The Commission believes program. This definition is the same as the Advisers Act, to furnish certain specified that an investment advisory program in the definition of sponsor used in records to the Commission upon demand. See infra section II.A.4. (Written Procedures and which clients with similar investment paragraph (f) of rule 204–3 under the Agreements). objectives hold substantially the same 29 Paragraph (b) would not specify which sponsor securities in their accounts in 25 The Commission previously has adopted must be designated as the principal sponsor. amendments to rule 204–3 (17 CFR 275.204–3) and However, the principal sponsor would be accordance with the portfolio manager’s Form ADV under the Advisers Act to require responsible for carrying out the duties of the model does not necessarily indicate that sponsors of wrap fee programs to provide sponsor under the rule, which would include the clients in the program have not prospective clients of these programs with specified establishing and effecting written procedures and information. Disclosure by Investment Advisers Act entering into agreements with other persons. See received individualized treatment, Regarding Wrap Fee Programs, Investment Advisers infra section II.A.4. (Written Procedures and particularly if the program is operated Release No. 1411 (Apr. 19, 1994), 59 FR 21657 (Apr. Agreements). Typically the principal sponsor in a manner consistent with revised 26, 1994). would be the person or entity that is responsible for proposed rule 3a-4.34 26 If revised proposed rule 3a–4 is adopted, the overall organization and operation of the interests in investment advisory programs that are program. The person designated as the principal organized and operated in compliance with the sponsor would be the person whose name appears instructions are modified, the client will not be conditions of the rule would not require registration on the program’s Form N–3a4. See infra section II.B. permitted to participate in the program. under the Securities Act. See Preliminary Note to (Form N–3a4). 31 See proposed paragraph (a)(1). revised proposed rule 3a–4. 30 Under paragraph (a)(1), a sponsor or portfolio 32 See Release 11391, supra note 15, at text 27 Id. In addition, adoption of revised proposed manager would have to comply with any accompanying n.18. rule 3a–4 would not affect the status of no-action instructions given by a client concerning the 33 See id., at text following n.18. letters previously issued by the Division with management of the client’s account in an 34 The Division has issued no-action letters with respect to investment advisory programs. Therefore, investment advisory program, unless the respect to programs that allocate client assets in investment advisory programs that operate in a instructions are so extensive or burdensome to the accordance with computerized investment manner consistent with these letters would not be management of the account as to be unreasonable, allocation models. See, e.g., Qualivest Capital required to register under the Investment Company or the sponsor or portfolio manager believes that the Management Inc. (pub. avail. July 30, 1990) Act. If rule 3a–4 is adopted, the Division as a instructions are inappropriate for the client. See (sponsor will use computerized investment general matter will not consider requests for no- infra section II.A.2.iii. (Reasonable Management allocation model to allocate and reallocate client action or exemptive relief with respect to programs Restrictions). In these cases, the sponsor or portfolio assets among money managers); Atlantic Bank of that do not comply with the rule. manager must notify the client that, unless the Continued 39578 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules ii. Client Contact—Initial and Ongoing if there have been any changes in the Regardless of the person responsible Paragraph (a)(2) would contain four client’s financial situation, investment for contacting the client and obtaining 38 requirements that generally are intended objectives or instructions. The the information necessary to manage the to ensure that the sponsor has sufficient paragraph also requires the sponsor or client’s account, the Commission contact with each client to be able to designated person to provide the client expects that, in most cases, the obtain the information necessary to with a means in which such contact is information obtained would be manage the client’s account in to be made (e.g., by giving a telephone provided to the client’s portfolio accordance with paragraph (a)(1). number or an address). Like paragraph manager. If such information is not Paragraph (a)(2)(i) would require that, at (a)(2)(ii), this provision is intended to provided to the portfolio manager, the the opening of the account, the sponsor provide a procedure by which sponsors manager may not be able to manage the or a person designated by the sponsor 35 can obtain current information about client’s account on the basis of the obtain information from the client clients of the program. However, unlike client’s financial situation, investment concerning the client’s financial paragraph (a)(2)(ii), paragraph (a)(2)(iii) objectives, and instructions, as would be situation and investment objectives. The would require the sponsor or designated required under paragraph (a)(1). The client must at that time also be asked to person only to remind the client to Commission, however, requests provide specific instructions, if any, contact the sponsor or designated comment whether the sponsor or concerning the management of the person if any changes have occurred in designated person should be explicitly account. The provision permits the the client’s financial situation, required by rule 3a-4 to convey this sponsor (or its designee) to obtain this investment objectives, or instructions. information to the portfolio manager. information through interviews (either The client would be responsible for Paragraph (a)(2)(iv) would require the in person or by telephone) and/or contacting the sponsor or designated sponsor and the client’s portfolio 39 through questionnaires that clients must person if changes had occurred. manager to be reasonably available to complete and return prior to the Paragraphs (a)(2)(i)-(iii) would place consult with the client concerning the opening of the account.36 the obligations to contact or notify the management of the client’s account. Paragraph (a)(2)(ii) would require client on the sponsor or a person This provision is intended to provide that, at least annually, the sponsor or a designated by the sponsor. In contrast, for reasonable client access to the person designated by the sponsor the originally proposed rule would have sponsor and the portfolio manager to contact the client to determine whether required the portfolio manager to ask questions or to seek additional 40 there have been any changes in the contact the client. The revised information about an investment client’s financial situation, investment proposed rule recognizes that, in many advisory program. Even if a program’s objectives, or instructions. This contact investment advisory programs, the sponsor serves as the primary contact need not be made in any particular way sponsor is the person primarily for clients in the program, a procedure 41 and could be made, for example, in responsible for client contact. The must be provided by which the client person, by telephone, or by letter revised proposed rule, however, would has reasonable access to the portfolio 43 requesting the client to provide the permit a person other than the sponsor manager. Individualized treatment information.37 The provision would to fulfill these obligations, so long as the would not be provided if a program’s require sponsors to request current sponsor specifically designated the procedures do not provide an 42 information about clients of the program person to do so. opportunity for reasonable availability 44 that is necessary for the individualized of the portfolio manager. 38 The notice need not be included as a separate management of a client’s account. piece of paper, but could be included on another Paragraph (a)(2)(iii) would require provisions designed to monitor and record the mailing sent to the client. For example, the actions taken by such persons. See infra section that, at least quarterly, the sponsor or a notification could appear in the quarterly statement II.A.4. (Written Procedures and Agreements). person designated by the sponsor notify that would be sent to clients in accordance with 43 See, e.g., Rauscher Pierce Refsnes, Inc., supra the client in writing that the sponsor or proposed paragraph (a)(4). See infra section note 3 (the portfolio manager, when necessary, will II.A.2.iv. (Quarterly Account Statements). The designated person should be contacted be available to discuss more complex questions notice also could be delivered to the client by e- regarding the client’s account); Westfield mail or other electronic means consented to by the Consultants Group, supra note 3 (client will be New York, supra note 2 (sponsor’s asset allocation client. furnished the name and direct telephone number of recommendation will be based on client’s 39 See, e.g., Scudder, Stevens & Clark Ltd. (pub. manager, who will be reasonably available during investment needs and sponsor’s model portfolios). avail Aug. 17, 1988) (quarterly statement will business hours). In one no-action request, a 35 See infra note 63. include a reminder that client should contract representation was made that the client would be 36 See, e.g., Rauscher Pierce Refsnes, Inc., supra sponsor if client needs or objectives change); able to contact an unaffiliated adviser, the sponsor note 3 (prospective client will be interviewed and Qualivest Capital Management, Inc. supra note 34 or the portfolio manager to obtain information or client will complete questionnaire during (client will be sent reminders to notify sponsor of assistance during normal business hours, but the interview); Strategic Advisers, Inc., supra note 2 any change in client’s financial situation or client might be charged hourly fees whenever the (prospective client will be interviewed over the investment objectives). client requests the services of investment officers to telephone); Manning & Napier Advisors, Inc. (Apr. 40 Paragraph (b) of proposed rule 3a-4. answer specific questions regarding investment 24, 1990) (prospective client initially will submit 41 See, e.g., Strategic Advisers, Inc., supra note strategies with respect to its account. Manning & written questionnaire followed by interview over (sponsor primarily responsible); Wall Street Napier Advisors, Inc., supra note 36. Sponsors of telephone). Preferred Money Managers, Inc., supra note (same). programs complying with revised proposed rule 3a– 37 The Commission recognizes that in some 42 The revised proposed rule would permit 4 may impose similar procedures, provided the circumstances the sponsor or designated person persons such as portfolio managers or advisers that client is informed prior to entering the program that may be unable to reach the client. The Commission refer clients to the program to be primarily such fees may be charged. would not take any enforcement action under this responsible for client contact. Paragraph (a)(6)(i) 44 Whether a sponsor or portfolio manager is provision if the sponsor or designated person is would require the sponsor to obtain from each ‘‘reasonably available’’ would depend on an unsuccessful in obtaining this information from the designated person an agreement in writing to analysis of the facts and circumstances. The client, provided the sponsor or designated person perform these duties. In addition, paragraph (a)(6)(i) procedures required under paragraph (a)(6)(i) may makes reasonable efforts to contact the client and would require the sponsor to establish written include provisions detailing the manner in which documents these efforts. Sponsors may wish to procedures that are reasonably designed to ensure the sponsor and the portfolio manager intend to include the procedures for contacting clients and that each of the conditions of the rule is met. The meet this requirement. Such procedures could, for documenting these efforts in the procedures procedures might, for example, describe in detail example, describe the manner in which the sponsor enacted pursuant to paragraph (a)(6)(i) of the rule. the manner in which paragraphs (a)(2)(i)-(iii) are to and portfolio manager will be reasonably available See infra section II.A.4. (Written Procedures and be effectuated, specify the persons primarily to clients while still allowing for time to perform Agreements). responsible for client contact, and include their duties. However, a sponsor or portfolio Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39579 iii. Reasonable Management Restrictions individual restriction, taken alone, including those with relatively small 47 Paragraph (a)(3) would require each would be reasonable. accounts, with greater efficiency and client to have the ability to impose The ability of clients of a program to minimal costs. A requirement for a reasonable restrictions on the place restrictions is a critical factor in minimum account size also could management of its account. These determining whether individualized effectively deny certain investors the restrictions could include, for example, treatment is provided under that opportunity to participate in investment the designation of particular securities program. This ability is a crucial advisory programs that may be or types of securities that should not be difference between a client receiving appropriate for them. Nonetheless, investment advisory services and an providing individualized advice to a purchased for the client’s account. 48 The originally proposed rule would investor in an investment company. large number of small accounts may be have required that each client have the iv. Quarterly Account Statements so costly and time-consuming as to ability to instruct its portfolio manager render individualized treatment Paragraph (a)(4) would require that to refrain from purchasing particular impracticable. each client be provided, on a quarterly securities that otherwise might be The Commission requests comment basis, with a statement describing all purchased.45 Under the revised whether a minimum account size activity in the client’s account during proposal, the client must be able to should be required. Commenters the preceding quarter, including all impose reasonable restrictions on the favoring this requirement should specify transactions made on behalf of the management of its account. The revised the minimum size that they believe that account, all contributions and proposal specifically states that would be most appropriate (e.g., withdrawals made by the client, and all restrictions may include prohibitions $50,000, $100,000, $200,000), and fees and expenses charged to the with respect to the purchase or sale of address whether the minimum amount account. The statement also would be particular securities or types of should be required to be met only at the required to include the value of the securities. time the account is opened, or whether Whether a particular restriction is account at both the beginning and end the minimum or some lesser amount reasonable would depend on an analysis of the quarter. The originally proposed should be required to be maintained of relevant facts and circumstances, rule also would have required quarterly while the client remains in the program. including the nature of the restriction statements, but did not specify the Commenters favoring a requirement that information to be included in such a client maintain a minimum account and the portfolio manager’s investment 49 strategy.46 For example, the exclusion of statements. size while in the program also should individual stocks, stocks of an industry v. Minimum Account Size comment whether the client should be group, or stocks from a specific country removed from the program if the Like the proposed rule, the revised account size fell below the initial generally would be considered to be proposed rule would not specify a reasonable restrictions. A restriction minimum due to investment loss rather minimum size for client accounts in the than withdrawal. In addition, would not be unreasonable simply program, leaving the account size for because it placed administrative commenters favoring a minimum size each program up to the sponsor of the requirement should address whether the burdens on the manager or could affect 50 program. The conditions of the revised minimum should apply to the client’s the performance of the accounts. proposed rule should be sufficient to Nonetheless, a restriction would be aggregate investment in the program, or ensure individualized treatment. In to each account managed by a portfolio unreasonable if it was clearly addition, innovations in computer contradictory to the adviser’s manager. Commenters should also technology may permit individualized address whether any or all of the investment philosophy or strategies. For treatment to be provided to clients, example, it may be unreasonable for a conditions of the revised proposed rule would be rendered unnecessary by a client to instruct a portfolio manager 47 If particular restrictions sought to be imposed whose investment strategy is to achieve by a client are found to be unreasonable, the client minimum account size requirement. long-term capital appreciation through should be notified and given a chance to restate the Finally, commenters should address investments in equity securities to restriction more reasonably. If unable or unwilling whether programs with small account purchase only short-term debt to do so, the client may be removed from the minimums should be subject to program. additional conditions not imposed on securities. Restrictions also may be 48 Under paragraph (a)(2), a sponsor or person deemed unreasonable if the client designated by the sponsor would be required to ask programs with larger minimums, and if changes the restrictions on the account the client for instructions regarding the so, what those conditions should be. management of its account. The request for with such frequency that it interferes 3. Indicia of Ownership with the orderly management of the instructions is intended, in part, to give the client the opportunity to convey any investment Paragraph (a)(5) would require that a account. This may be true even if each restrictions it wishes to impose on the management of its account. client in an investment advisory manager would not be ‘‘reasonably available,’’ for 49 Proposed paragraph (b)(3). A number of the no- program retain certain indicia of example, if a client’s contact with the sponsor or action letters have specified the content of the ownership of all securities and funds in portfolio manager were limited to viewing or quarterly reports. See Westfield Consultants Group, the client’s account. The paragraph lists listening to recorded interviews. supra note 2 (quarterly statements will contain a specific attributes of ownership that the 45 Proposed paragraph (d). The no-action letters review and analysis of client account); Strategic involving investment advisory programs typically Advisers, Inc., supra note 2 (quarterly statements client must retain. have included representations that were based on will contain a description of investments); Republic The proposed rule would have the proposed provision. See, e.g., Rauscher Pierce National Bank of New York (pub. avail. Aug. 23, required clients to maintain all indicia Refsnes, Inc, supra note; 3. 1982) (quarterly statements will show holdings, of ownership of the funds in their 46 value and change in value since preceding quarter). The procedures required by paragraph (a)(6)(i) accounts, and specified certain requisite may define what restrictions are considered 50 The Division has granted no-action relief to 51 unreasonable. To the extent that the investment advisory programs with varying attributes of ownership. The revised ‘‘unreasonableness’’ of restrictions is a matter of minimum account sizes. See, e.g., Qualivest Capital proposed rule would not require the judgment, the procedures, for example, may Management, Inc., supra note 34 ($5 million); client to maintain all indicia of identify the person or persons responsible for this Atlantic Bank of New York, supra note 2 determination and specify the factors to be ($500,000); Wall Street Preferred Money Managers, ownership, but would require the client considered by those persons. See infra section Inc., supra note 2 ($100,000); Strategic Advisers, II.A.4. (Written Procedures and Agreements). Inc., supra note 2 ($50,000). 51 Proposed paragraph (c). 39580 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules to maintain, at a minimum, those However, the client must be permitted Paragraph (a)(5)(iv) also would indicia listed. The Commission believes to revoke the delegation at any time.55 require the client (or the client’s agent) to be provided with other documents that these specific indicia of ownership, iii. Right to Receive Confirmations and that the client (or its agent) would which are based on those represented as Other Documents being retained by clients of programs receive had the same securities been described in the no-action letters, Paragraph (a)(5)(iv) would provide, in owned by the client outside the provide clients with the ability to act as part, that the client must have the right program. These documents may include owners of their securities.52 to receive in a timely manner prospectuses, periodic shareholder confirmations of securities transactions reports, proxies, and any other i. Ability to Withdraw and Pledge of the type required by rule 10b–10 56 information and disclosure required by Securities under the Securities Exchange Act of applicable laws or regulations.61 1934.57 Proposed rule 3a–4 would have Paragraph (a)(5)(i) would require that required clients to receive a iv. Rights as Securityholders the clients be able to withdraw ‘‘notification of each security Paragraph (a)(5)(v) would require that securities or cash from their accounts. transaction.’’ 58 In subsequent no-action a client have the right to proceed Paragraph (a)(5)(ii) also would specify letters, the Division modified this directly as a securityholder against the that clients must be able to pledge the position, permitting monthly account issuer of any security in the client’s securities in their accounts.53 Under statements to be provided to clients account without having to join any some circumstances, programs may unless more frequent confirmations person involved in the operation of the require a client to withdraw the were requested.59 program or any other client of the securities from his or her account before Under the revised proposal, clients program as a condition precedent to using them as collateral. Such a could waive receipt of individual proceeding against an issuer. This requirement would be consistent with confirmations to the extent the waiver provision, which is based on conditions the rule. would otherwise be permitted under in several no-action letters,62 is intended rule 10b–10. Thus, paragraph (a)(5) ii. Right to Vote Securities to ensure that the client would have the effectively would provide a client in an same rights as any person holding the Paragraph (a)(5)(iii) would require investment advisory program with the same securities outside an investment that the client have the right to vote the option to receive either individual advisory program. The right to proceed securities in his or her account. Implicit confirmations for each transaction or against an issuer of securities in a in this requirement is the requirement periodic statements, delivered no less client’s account is another important that the client receive proxies in frequently than quarterly, that include difference between a client of an sufficient time to permit the client to the information required by rule 10b–10 investment adviser and an investment with respect to all transactions that consider how to vote and to submit the company shareholder, as the latter occurred within the period covered by proxy. The provision would permit generally would not be able to proceed the statement.60 clients to delegate the authority to vote directly against an issuer of securities securities to another person, such as the held by the investment company. 55 The procedure for such revocation should be 54 portfolio manager or other fiduciary. described in the procedures for the program. See 4. Written Procedures and Agreements infra section II.A.4. (Written Procedures and Paragraph (a)(6) contains four 52 The revised proposed rule would not require Agreements). the client to be the record owner of the securities 56 17 CFR 240.10b–10. If a program is structured requirements regarding the held in its account. The Division has taken the so that each client’s securities transactions are establishment of written procedures and position that an investment advisory program executed by a registered broker-dealer, rule 10b–10 agreements covering the operation of the would not be deemed to be an investment company would govern the delivery of confirmations. If program and the maintenance of records solely because securities are held in nominee or client transactions are executed by an entity that is street name. The Division reasoned that placing not subject to rule 10b–10, the revised proposed related to these procedures and securities in nominee or street name is an rule would require the delivery of confirmations in agreements. These conditions and their administrative mechanism used to record and the manner required by rule 10b–10, to the same purposes are described in more detail facilitate the transfer of ownership. In addition, extent as if the transactions were executed by a below. The Commission, however, is requiring securities to be held in the client’s name registered broker-dealer. would be inconsistent with Commission policy of 57 15 U.S.C. 78a et seq. sensitive to imposing undue burdens on encouraging the holding of securities in nominee 58 Proposed paragraph (c)(2). sponsors of investment advisory name to promote the establishment of centralized 59 See, e.g., Westfield Consultants Group, supra programs. Comment is therefore clearance and settlement systems and the note; Manning & Napier Advisors, Inc., supra note; requested whether any of the conditions elimination of certificated securities. UMB Bank, Jefferies & Company (pub. avail. June 16, 1989). discussed below would impose an n.a. (pub. avail. Jan. 23, 1995) (investment company 60 The Commission has taken the view that, for securities). See, e.g., Manning & Napier Advisors, purposes of complying with rule 10b–10, a broker- Inc., supra note 36 (non-investment company dealer may provide a person whose account is revised proposed rule would incorporate this securities). The recent enforcement action against managed on a discretionary basis by a fiduciary, position. Clarke Lanzen Skalla Investment Firm, Inc., in such as a client in an investment advisory program, 61 The Commission recently approved a proposed which, among other things, securities purchased on with a periodic statement (delivered no less amendment of a rule of the National Association of behalf of clients were held in nominee name, was frequently than quarterly) in lieu of the immediate Securities Dealers, Inc. to permit beneficial owners not inconsistent with the Division’s position in the confirmation for each transaction, if the broker- of stock to designate a registered investment adviser UMB Bank no-action letter. See supra note 11. dealer obtains from the person a written agreement to receive and vote proxies on their behalf. Self- 53 The proposed rule would have required that the stating that the immediate confirmation will be Regulatory Organizations; Order Approving client maintain the right to ‘‘hypothecate’’ securities provided to the fiduciary. The periodic statement Proposed Rule Change by National Association of in its account. That term is not included in the the broker-dealer sends to the person must contain Securities Dealers, Inc. Relating to Interpretation of revised proposed rule because it is generally the same information that could have been in the the Board of Governors—Forwarding of Proxy and considered to be synonymous with ‘‘pledge.’’ See immediate confirmation for each transaction. Other Material Under Article III, Section 1 of the Black’s Law Dictionary 669 (5th ed. 1979). Although the person may waive his or her right to NASD Rules of Fair Practice, Securities Exchange 54 Any such delegation should be contained in the the immediate confirmation, the person may not Act Release No. 35681 (May 5, 1995), 60 FR 25749 investment advisory agreement or in another waive his or her right to the periodic statement. (May 12, 1995). document and retained with the records relating to Confirmation of Transactions, Securities Exchange 62 E.g., Westfield Consultants Group, supra note 3; the program. The procedures for delegation may Act Release No. 34962, notes 34–36 and Manning & Napier Advisors, Inc., supra note 36; also be specified in the procedures adopted under accompanying text (Nov. 10, 1994), 59 FR 59612 Jefferies & Company, supra note 59; Rauscher Pierce the rule. (Nov. 17, 1994). By reference to rule 10b–10, the Refsnes, Inc., supra note 3. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39581 undue burden on persons relying on the in that capacity, so that they are copies of such books and records within rule, or whether the burden of any available for easy reference. These a reasonable time of the sponsor’s condition would outweigh its benefits. documents also must be retained in an request. Comment is specifically requested easily accessible place for three years These requirements are intended to whether any of these conditions can be after the sponsor of the program ceases avoid duplicative recordkeeping by eliminated, consolidated, or otherwise to serve as the sponsor should any allowing the sponsor to designate made less burdensome without questions later arise about the operation another person involved in the compromising investor protection. of the program. operation of the investment advisory Paragraph (a)(6)(i) would require the Paragraph (a)(6)(ii)(B) would require program to maintain copies of books sponsor of the program to establish and the sponsor or another person and records provided that person has a effect written policies and procedures designated by the sponsor to maintain contractual obligation to provide the that are reasonably designed to ensure and preserve all documents created records to the sponsor upon request. In that each of the provisions of the rule is pursuant to the policies and procedures addition, the requirement that each implemented. The paragraph also would governing the operation of the program, party’s recordkeeping responsibilities be require that, to the extent that the such as client contracts, client included in the party’s agreement with sponsor designates another person to questionnaires, and copies of client the sponsor would help to ensure that carry out certain obligations under the statements, in an easily accessible place each person is aware of its rule, the sponsor must obtain from that for a period of not less than five years responsibilities. Finally, since the person an agreement in writing to carry from the end of the fiscal year during provision would require that the out those obligations. These provisions which the document was created. Under sponsor be able to request and obtain are designed to require the sponsor to this provision, these documents would promptly the books and records formalize the manner in which it be required to be maintained and maintained by such persons, it intends to comply with rule 3a–4, and, preserved in a manner similar to that effectively would permit the sponsor to if the sponsor delegates its required for advisory books and records monitor more effectively the person’s 65 responsibilities under the rule, to under paragraph (e)(i) of rule 204–2. performance of its duties under the specifically record the delegation and Unlike rule 204–2, however, paragraph contract, and help facilitate Commission obtain from the other parties an (a)(6)(ii)(B) would not require the examinations. agreement acknowledging their documents to be kept for the first two Paragraph (a)(6)(iv) would require the 63 responsibilities. The requirement that years in the office of the person creating sponsor to furnish to the Commission a sponsor establish and effect written or receiving the records (i.e., the upon demand copies of the policies, procedures detailing compliance with sponsor). Rather, the paragraph would procedures, all documents created the conditions of rule 3a–4 also is permit the sponsor to designate another pursuant to the policies and procedures, intended to provide the Commission person to maintain and preserve these 66 and the written agreements with other with a readily available source of documents. persons involved in the operation of the Paragraph (a)(6)(iii) would require the information regarding the manner in program. This provision is intended to sponsor to enter into a written which the rule is being interpreted and facilitate Commission examination of agreement with any person designated applied by the investment advisory investment advisory programs relying to maintain and preserve the books and industry. on rule 3a–4. Paragraph (a)(6)(ii)(A) would require records pertaining to the program (other As discussed above, most sponsors of the sponsor to maintain and preserve all than the written policies, procedures investment advisory programs are written policies, procedures and and agreements). The paragraph also required to be registered under the agreements that pertain to the operation would require that the agreement 67 of the investment advisory program in include a list of the books and records Advisers Act. Thus, these sponsors are its office for as long as it serves as the maintained and preserved by that already required under section 204 of sponsor of that program.64 The person and a provision obligating the the Advisers Act to make advisory records available to the Commission paragraph also would require the person maintaining the books and 68 sponsor to maintain and preserve these records to provide the sponsor with upon request. Revised proposed rule documents in an easily accessible place 3a–4, however, would be available to all for not less than three years after the 65 See supra note 64. Revised proposed rule 3a– sponsors of investment advisory sponsor ceases to serve as sponsor of the 4 would not require the creation of any records programs, regardless of their status program. Given the importance of these other than the policies, procedures, and written under the Advisers Act. Accordingly, agreements if the sponsor designates another person paragraph (a)(6)(iv) is intended to documents, the Commission believes to perform obligations under the revised proposed that the documents must be maintained rule or to maintain and preserve certain books and ensure that the Commission would have and preserved in the office of the records. Paragraphs (a)(6)(i), (a)(6)(iii). Paragraph access to certain records with respect to sponsor for as long as the sponsor acts (a)(6)(ii)(B), however, would specify how records investment advisory programs that are that are created pursuant to the policies and sponsored by persons that are not procedures (whether or not also required by rule 63 In addition, because the procedures would be 204–2 under the Advisers Act) must be maintained. subject to the Advisers Act. reasonably designed to ensure that the provisions If records pertaining to the program are required to of the rule are implemented, sponsors may wish to be created under rule 204–2, but not under the B. Form N–3a4 specify in the procedures the persons other than the policies or procedures, those records would be Paragraph (a)(7) would require any principal sponsor that are involved in the operation required to be maintained in accordance with of the program, and each person’s duties. The paragraph (e) of rule 204–2. See National Regulatory sponsor of an investment advisory procedures need not, however, specify each Services, Inc., supra note (portfolio manager in an program intending to rely on the safe individual by name. investment advisory program must maintain harbor provided in rule 3a–4 to file with 64 Because an adviser may have more than one records of brochure delivery at its office, even if the Commission Form N–3a4.69 Form office, paragraph (a)(6)(ii)(A) would provide that sponsor created such records). these records should be kept ‘‘in an appropriate 66 However, as discussed below, the sponsor 67 office of the sponsor.’’ This language is similar to would be required to enter into a written agreement See supra notes 5–8 and accompanying text. that used in paragraph (e)(i) of rule 204–2 under the with the designated person that specifies that 68 15 U.S.C. 80b–4. Advisers Act (15 CFR 275.204–2), which sets forth documents to be maintained by that person and that 69 In addition, in the event that another person the recordkeeping requirements for investment copies of such documents would be provided to the had previously served as principal sponsor of, and advisers. sponsor upon request. Continued 39582 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules N–3a4 would notify the Commission of revised proposed rule 3a–4. This timing IV. Summary of Initial Regulatory investment advisory programs that are would allow the interpretive release to Flexibility Analysis intended to be organized and operated reflect, where appropriate, these in compliance with the rule’s comments. Such a time schedule will The Commission has prepared an Initial Regulatory Flexibility Analysis in requirements.70 The form would assist also permit the consideration of accordance with 5 U.S.C. 603 regarding the Commission in monitoring the use comment from members of the revised proposed rule 3a–4 and of rule 3a–4 and facilitate Commission investment advisory program industry proposed Form N–3a4. The Analysis examination of persons involved in regarding the issues expected to be investment advisory programs. notes that the revised proposed rule is addressed in the interpretive release. intended to provide a nonexclusive safe C. Advisers Act Issues Raised by Commenters are urged to submit such harbor from the definition of investment Investment Advisory Programs comments on these and any other issues company for investment advisory investment advisory programs raise Wrap fee and other investment programs organized and operated in under the Advisers Act. Comment is advisory programs raise, in addition to compliance with the conditions of the specifically requested regarding how the Investment Company Act issues rule, and that the proposed form would investment advisers participating in addressed in this release, a number of be filed with the Commission by investment advisory programs currently issues under the Advisers Act. The sponsors of investment advisory Commission expects to publish an understand and comply with their programs intending to rely on the rule. interpretive release that would address Advisers Act obligations. Commenters The Analysis explains that the rule is many of these issues. also are urged to suggest specific factual intended to provide guidance regarding In particular, the Commission expects situations that the release should the status of investment advisory that the release will address the address. programs under the Investment suitability obligations of sponsors and III. Cost/Benefit Analysis Company Act, and that the rule and the portfolio managers to clients of the form would facilitate Commission investment advisory program, including Revised proposed rule 3a–4 under the examination of persons involved in the suitability obligations regarding client Investment Company Act would operation of a program. The Analysis participation in the program, the provide a nonexclusive safe harbor from concludes that the rule would not be selection of portfolio managers, and the the definition of investment company overly costly or burdensome to sponsors selection of investments. The release for investment advisory programs. of investment advisory programs that will discuss how an adviser’s obligation Programs that are organized and intend to rely on the safe harbor. A copy to seek best execution applies in the operated in a manner consistent with of the Initial Regulatory Flexibility context of wrap fee programs when the rule’s conditions would not be Analysis may be obtained from Rochelle brokerage commissions are not charged required to register under the Kauffman Plesset, at Mail Stop 10–6, separately for each transaction. In Investment Company Act or comply Securities and Exchange Commission, addition, the interpretive release may with the Act’s substantive requirements. 450 Fifth Street NW., Washington, DC discuss the application of the The revised proposed rule is intended to 20549. restrictions on principal and agency provide guidance to persons operating V. Statutory Authority cross transactions in section 206(3) of investment advisory programs regarding the Advisers Act to investment advisory the status of these programs under the The Commission is publishing for programs, including whether these Investment Company Act, and help to public comment revised proposed rule restrictions apply to transactions with a ensure that such programs do not 3a–4 and Form N–3a4 pursuant to the sponsor that is unaffiliated with the operate as investment companies authority set forth in sections 6(c) and portfolio manager recommending the without clients of the programs 38(a) of the Investment Company Act transactions. Finally, the release may benefitting from the Act’s protections. [15 U.S.C. 80a–6(c), –37(a)]. address certain issues unique to programs under which client assets are Proposed Form N–3a4 would be filed Text of Revised Proposed Rule and invested in mutual funds, including the with the Commission by sponsors of Proposed Form disclosure obligations of investment programs intending to rely on rule 3a– List of Subjects in 17 CFR Parts 270 and advisers regarding the various fees 4. The proposed form would help the 274 associated with these programs.71 Commission in monitoring the use of The release will not be issued until rule 3a–4 and facilitate Commission Investment companies, Reporting and after comments have been received on examination of persons involved in recordkeeping requirements, Securities. these programs. For the reasons set out in the submitted Form N–3a4 with respect to, an The Commission anticipates that the preamble, title 17, chapter II of the Code investment advisory program, the new principal sponsor would be required to submit an amended cost of compliance with revised of Federal Regulations is proposed to be Form N–3a4 identifying itself as the new sponsor proposed rule 3a–4 and the proposed amended as follows: and specifying the name of the prior principal form would be small. In addition, the sponsor. Commission does not believe that PART 270ÐRULES AND 70 Paragraph (a)(7) also would require sponsors to compliance with any of the proposed REGULATIONS, INVESTMENT file with the Commission any amendments to the COMPANY ACT OF 1940 form. Thus, proposed Form N–3a4 also would be provisions would be unduly used to change information included in a prior burdensome. Comment is requested, 1. The authority citation for Part 270 filing, to notify the Commission that the sponsor no however, on the costs and benefits longer intends to operate the program in reliance on continues to read, in part, as follows: the safe harbor, or to notify the Commission that a associated with the revised proposed program operating in reliance on the safe harbor rule and proposed form. Commenters Authority: 15 U.S.C. 80a–1 et seq., 80a–37, will cease operations. should submit estimates for any costs 80a–39 unless otherwise noted; 71 The recently adopted wrap fee disclosure and benefits perceived, together with * * * * * requirements set forth in Schedule H of Form ADV apply only to sponsors of wrap fee programs and any supporting empirical evidence 2. By adding § 270.3a–4 to read as not to sponsors of mutual fund wrap programs. available. follows: Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39583 § 270.3a±4 Status of Investment Advisory behalf of the account, all contributions (iii) The sponsor shall enter into a Programs. and withdrawals made by the client, all written agreement with any person Note: This section is a nonexclusive safe fees and expenses charged to the designated by the sponsor to maintain harbor from the definition of investment account, and the value of the account at and preserve the books and records company for certain programs that provide the beginning and end of the quarter. pertaining to the program (other than investment advisory services to clients. (5) Each client retains indicia of those specified in paragraph (a)(6)(ii)(A) Interests in programs that are organized and ownership of all securities and funds in of this section). Such agreement shall operated in compliance with the conditions of § 270.3a–4 also are not required to be the account, including the right to: include a list of the books and records registered under section 5 of the Securities (i) Withdraw securities or cash; to be maintained and preserved by that Act of 1933 [15 U.S.C. 77e]. The section is (ii) Pledge securities; person and a provision that the person not intended, however, to create any (iii) Vote securities, or delegate the will provide the sponsor copies of such presumption about a program that is not authority to vote securities to another books and records within a reasonable organized and operated in compliance with person; time of the sponsor’s request. the conditions. (iv) Be provided in a timely manner (iv) The sponsor shall furnish to the (a) Notwithstanding section 3(a) of the with confirmations of securities Commission upon demand copies of all Act [15 U.S.C. 80a–3], any program transactions of the type required by documents maintained under paragraph under which investment advisory § 240.10b–10 of this chapter, and all (a)(6)(ii) of this section. services are provided to clients will not other documents that would have been (7) The sponsor has filed with the be deemed to be an investment provided to the client (or the client’s Commission Form N–3a4 [17 CFR company within the meaning of the Act, agent) had the client purchased or sold 274.222] and any amendments thereto. provided that: the same securities outside the program; (b) As used in this section, the term (1) Each client’s account in the and sponsor refers to any person who program is managed on the basis of the (v) Proceed directly as a receives compensation for sponsoring, client’s financial situation, investment securityholder against the issuer of any organizing or administering the objectives, and instructions. security in the client’s account and not program, or for selecting, or providing (2) (i) At the opening of the account, be obligated to join any person involved advice to clients regarding the selection the sponsor or another person in the operation of the program, or any of, persons responsible for managing the designated by the sponsor obtains other client of the program, as a client’s account in the program. If a information from the client regarding condition precedent to initiating such program has more than one sponsor, one the client’s financial situation and proceeding. person shall be designated the principal investment objectives, and gives the (6) (i) The sponsor of a program sponsor, and such person shall comply client the opportunity to provide relying on this section must establish with the provisions of this section specific instructions concerning the and effect written policies and relating to the duties and management of the account; procedures that are reasonably designed responsibilities of the sponsor. (ii) At least annually, the sponsor or to ensure that each of the conditions of PART 274ÐFORMS PRESCRIBED another person designated by the this section is met. To the extent that UNDER THE INVESTMENT COMPANY sponsor contacts the client to determine the sponsor designates another person ACT OF 1940 whether there have been any changes in to carry out its obligations under this the client’s financial situation, section, the sponsor must obtain from 3. The authority citation for Part 274 investment objectives, or instructions in that person an agreement in writing to continues to read as follows: the preceding year; carry out those obligations. Authority: 15 U.S.C. 77f, 77g, 77h, (iii) At least quarterly, the sponsor or (ii) Notwithstanding the requirements 77j, 77s, 78c(b), 78l, 78m, 78n, 78o(d), another person designated by the of paragraph (e) of § 275.204–2 of this 80a–8, 80a–24, and 80a–29 unless sponsor notifies the client in writing to chapter as such requirements would otherwise noted. contact the sponsor or such other person apply to the records set forth in if there have been any changes in the paragraph (a)(6)(ii) of this section: 4. By adding § 274.222 to subpart C to client’s financial situation, investment (A) The sponsor shall maintain and read as follows: objectives, or instructions, and provides preserve in an appropriate office of the § 274.222 Form N±3a4, Notification of the client with a means through which sponsor during the period that it serves reliance on rule 3a±4 under the Investment such contact is to be made; and as the sponsor of the program, and in an Company Act. (iv) The sponsor and persons easily accessible place for a period not This form shall be filed with the authorized to make investment less than three years after the sponsor Commission as required by rule 3a–4 decisions for the client’s account are ceases to serve in that capacity, all (§ 270.3a–4 of this chapter) by sponsors reasonably available to the client for written policies, procedures and of investment advisory programs that consultation. agreements required to be established intend to rely on the safe harbor (3) Each client has the ability to under paragraphs (a)(6)(i) and (a)(6)(iii) provided by that rule. impose reasonable restrictions on the of this section; and Editorial Note: The text of Form N–3a4 management of its account, including (B) The sponsor or another person appears in the Appendix to this document the designation of particular securities designated by the sponsor shall and will not appear in the Code of Federal or types of securities that should not be maintain and preserve in an easily Regulations. purchased for the account, or that accessible place for a period of not less Dated: July 27, 1995. should be sold if held in the account. than five years from the end of the fiscal By the Commission. (4) The sponsor or person designated year during which the document was Margaret L. McFarland, by the sponsor provides each client with created, all documents created pursuant Deputy Secretary. a quarterly statement containing a to the policies and procedures description of all activity in the client’s (including any client contracts, client Appendix account during the preceding quarter, questionnaires, and copies of client Note: The following Appendix will not including all transactions made on statements). appear in the Code of Federal Regulations. 39584 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules OMB APPROVAL a. Full name of previous principal sponsor: intends to operate the program in reliance on lllllllllllllllllllll OMB Number: the safe harbor, or to notify the Commission Expires: b. Previous principal sponsor’s status that a program operating in reliance on the Estimated average burden hours per under the Investment Advisers Act safe harbor will cease operations. response: [ ] Previous principal sponsor is/was 2. This form shall be filed in triplicate with registered under that Act; its SEC the Commission. One copy shall be manually Form N–3a4 Investment Advisers Act file number is/ signed; the other copies may have facsimile U.S. Securities and Exchange Commission was: 801– or typed signatures. [ ] Previous principal sponsor is/was not 3. Under Item 1, insert name under which Washington, D.C. 20549 registered under that Act the investment advisory program is marketed Notification of Intention to Rely on Safe 7. The undersigned hereby notifies the to clients. If no such name is used, insert a Harbor Pursuant to Rule 3a–4 [17 CFR Securities and Exchange Commission, in name used to identify the program in internal 270.3a–4] its capacity as principal sponsor, that documents (e.g. contracts) or any other name [ ] it intends to operate the program in that would clearly identify the program. [ ] Initial Filing [ ] Amendment [ ] reliance on the safe harbor provided in Withdrawal 4. The principal sponsor of an investment rule 3a–4 under the Investment advisory program shall file this form 1. Full name of investment advisory program: Company Act of 1940. lllllllllllllllllllll promptly after becoming principal sponsor of [ ] it no longer intends to operate the the program. In the event that the previously 2. Full name of principal sponsor (as defined program in reliance on the safe harbor in rule 3a–4) of investment advisory submitted form becomes inaccurate, the provided in rule 3a–4 under the principal sponsor shall amend the form by program: Investment Company Act of 1940. lllllllllllllllllllll submitting an amended form, completed in [ ] the program will cease operating as an its entirety, with the appropriate box checked 3. Principal sponsor’s status under the investment advisory program as of llllll at the top of the form. If a previous principal Investment Advisers Act (insert date in blank). sponsor of the program had filed a Form N– [ ] Principal sponsor is registered under that Signed by: lllllllllllllll 3a4, the new principal sponsor shall submit Act; its SEC Investment Advisers Act file (Name of person signing on behalf of an amended form, completed in its entirety number is: 801 principal sponsor) including the information requested in Item [ ] Principal sponsor is not registered under lllllllllllllllllllll 6. that Act (title of person) 5. If the principal sponsor no longer 4. Address of principal sponsor’s principal llllllllllllllllll intends to operate the program in reliance on place of business (number, street, city, Date: rule 3a–4, or the program is ceasing state, zip code): Instructions lllllllllllllllllllll operations, the principal sponsor shall 1. This form is to be used to notify the withdraw its notification on Form N–3a4 by 5. Telephone number at this location Commission of the intention of the principal submitting another form, completed in its (include area code): sponsor of an investment advisory program entirety including the information required lllllllllllllllllllll to operate the program in reliance on the safe in Item 7, and checking the appropriate box 6. If another person had previously served as harbor in rule 3a–4 under the Investment at the top of the form. principal sponsor of, and filed Form N– Company Act. This form also is to be used 3a4 with respect to, the investment to amend a prior filing, to notify the [FR Doc. 95–18891 Filed 8–1–95; 8:45 am] advisory program identified in Item 1: Commission that the sponsor no longer BILLING CODE 8010±01±P federal register August 2,1995 Wednesday Extraction; FinalRule Chlorinated PesticidesandPCBsbyDisk for theAnalysisofPollutants; Guidelines EstablishingTestProcedures 40 CFRPart136 Protection Agency Environmental Part IV 39585 39586 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations ENVIRONMENTAL PROTECTION States Court of Appeals within 120 days regulations providing nationally- AGENCY after they are considered issued for approved testing procedures at 40 CFR purposes of judicial review. Under Part 136. Test procedures have 40 CFR Part 136 section 509(b)(2) of the Clean Water Act, previously been approved for 262 these amendments may not be different parameters. Those procedures [FRL±5267±2] challenged later in civil or criminal apply to the analysis of inorganic Guidelines Establishing Test proceedings brought by EPA to enforce (metal, non-metal, mineral) and organic Procedures for the Analysis of these requirements. chemical, radiological, bacteriological, Pollutants; Chlorinated Pesticides and FOR FURTHER INFORMATION CONTACT: Mr. nutrient, demand, residue, and physical PCBs by Disk Extraction James E. Longbottom, Environmental parameters. Monitoring Systems Laboratory, Office Additionally, some particular AGENCY: Environmental Protection of Research and Development, U.S. industries may discharge pollutants for Agency (EPA). Environmental Protection Agency, which test procedures have not been ACTION: Final rule. Cincinnati, Ohio 45268. Telephone proposed and approved under 40 CFR number: (513) 569–7308. Part 136. Under 40 CFR Part 122.41 SUMMARY: This amendment to the Guidelines Establishing Test Procedures SUPPLEMENTARY INFORMATION: permit writers may impose monitoring approves the use of an additional I. Authority requirements and establish test methods for pollutants for which no approved procedure for the determination of This regulation is promulgated under chlorinated pesticides and Part 136 method exists. 40 CFR 122.41(j) authority of sections 301, 304(h) and (4). EPA may also approve additional polychlorinated biphenyls (PCBs) in 501(a) of the Clean Water Act, 33 U.S.C. wastewater by adding appropriate test procedures when establishing 1251 et seq. (the Federal Water industry-wide technology-based effluent citations to Tables IC and ID and by Pollution Control Act Amendments of amending the incorporation by limitations guidelines and standards as 1972 as amended) (the ‘‘Act’’). Section described at 40 CFR 401.13. reference section of the regulation 301 of the Act prohibits the discharge of accordingly. The method differs from any pollutant into navigable waters The procedures for approval of other approved methods in that it unless the discharge complies with a alternate test procedures (ATPs) are incorporates a disk of octadecyl-bonded National Pollutant Discharge described at 40 CFR 136.4 and 136.5. silica enmeshed in a matrix of inert Elimination System (NPDES) permit, Under these procedures the polytetrafluoroethylene (PTFE) fibrils issued under section 402. Section 304(h) Administrator may approve alternate for extraction of the analytes. The of the Act requires the Administrator of test procedures for nationwide use precision and recovery for the the EPA to ‘‘promulgate guidelines which are developed and proposed by chlorinated pesticides and PCBs using establishing test procedures for the any person. 40 CFR 136.4 (a). this technique are not substantially analysis of pollutants that shall include Dischargers seeking to use such different from those obtained using the the factors which must be provided in alternate test procedures on a limited liquid-liquid extraction technique any certification pursuant to section 401 basis (e.g., for their own discharge), already approved. Use of approved of this Act or permit application must apply to the State or Regional EPA analytical techniques is required pursuant to section 402 of this Act’’. permitting office in which the discharge whenever the waste constituent Section 501(a) of the Act authorizes the occurs approval under 136.4 (d). As specified is required to be measured for: Administrator to ‘‘prescribe such specified below, today’s rule approves an NPDES permit application; discharge regulations as are necessary to carry out an optional nationwide alternate monitoring reports; state certification; his functions under this Act’’. procedure for determination of and other requests from the permitting chlorinated pesticides and PCBs in II. Regulatory Background authority for quantitative or qualitative wastewater test samples. effluent data. Use of approved test The CWA establishes two principal procedures is also required for the bases for effluent limitations. First, III. The Disk Extraction Test Procedure expression of pollutant amounts, existing discharges are required to meet characteristics, or properties in effluent The 3M Corporation, in accordance technology-based effluent limitations. with the regulations published at 40 limitations guidelines and standards of New source discharges must meet new CFR section 136.5, applied for performance and pretreatment source performance standards based on nationwide approval of their standards, unless otherwise specifically the best available demonstrated control ‘‘Organochlorine Pesticides and PCBs in noted or defined. technology. Second, where necessary, Wastewater Using Empore Disk’’. 3M DATES: This rule shall be effective on additional requirements are imposed to subsequently presented data to meet the September 1, 1995. In accordance with assure attainment and maintenance of method comparability criteria set forth 40 CFR 23.2 (45 FR 26048), these water quality standards established by in the EPA ‘‘Protocol for Approval of amendments to the regulation shall be the States under Section 303 of the Alternate Test Procedures for Inorganic considered issued for purposes of CWA. In establishing or reviewing and Organic Analytes in National judicial review at 1 p.m. eastern time, NPDES permit limits, EPA must ensure Pollutant Discharge Elimination System August 16, 1995. that permitted discharges will not cause The incorporation by reference of or contribute to a violation of water Monitoring’’, July 12, 1993. certain publications listed in the quality standards, including designated Extraction and concentration are regulation is approved by the Office of water uses. preparation steps that are required prior the Federal Register as of September 1, For use in permit applications, to the determination of many organic 1995. discharge monitoring reports, and state analytes that are found in wastewater. Under section 509(b)(1) of the Clean certification and to ensure compliance The disk extraction procedure is Water Act, judicial review of these with effluent limitations, standards of proposed as an alternate to the presently amendments can be obtained only by performance, and pretreatment approved liquid-liquid extraction filing a petition for review in the United standards, EPA has promulgated procedure. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39587 A. Scope of the Procedure C. Technical Justification for Approved establish (1) its acceptability under Part Method 3M 0222 is designed as an Procedure 136 and (2) its comparability to the alternate test procedure for currently The approval of this procedure is approved procedure for analysis of the approved EPA Method 608. The based on Agency review of the specified organochlorine pesticides and EmporeTM disk is used in place of supporting information and data PCBs. As an approved alternate test liquid-liquid extraction. This method is submitted by the applicant, 3M procedure, this procedure is acceptable being promulgated as an alternative Corporation. EPA is approving the for use by any person required to test for procedure for the determination of method based on the method these parameters. nineteen specified organochlorine description in EPA’s Environmental IV. Public Comments and Response to pesticides and seven PCBs listed below: Monitoring Management Council Most Significant Comments Aldrin format, comparative analyses using the The Agency requested comments on alpha-BHC proposed and approved procedures, and the proposal to approve the 3M method beta-BHC EPA’s technical and statistical reviews for pesticides and PCB’s. Comments Chlordane of each data package. were received from 5 individuals/ delta-BHC 3M Corporation provided test data organizations. All commenters favored Dieldrin comparing the proposed procedure with approval of disk extraction as an Endosulfan I appropriate approved procedure. The acceptable alternate procedure (ATP). Endosulfan II results from the proposed alternate The most significant comments were as Endosulfan sulfate method were compared to the approved follows: Endrin EPA Method using liquid-liquid Endrin aldehyde Comment: Other companies produce extraction/gas chromatography extraction disks on inert surfaces, so all gamma-BHC PCB-1254 procedures. EPA statisticians and Heptachlor references in the method to the disk in chemists conducted independent the 3M method should be generic in Heptachlor epoxide reviews of the data. The recovery and Methoxychlor nature so that other commercial precision of all the submitted data for Toxaphene products can be used by the analyst. 4,4′-DDD both the approved and proposed Commenter supports feasibility of 4,4′-DDE methods were also compared to the generic approach by noting the method 4,4′-DDT recovery and precision acceptance includes initial quality control PCB-1016 criteria derived for EPA Method 608 demonstrations that can demonstrate PCB-1221 from Performance Evaluation Studies applicability of the alternative vender’s PCB-1232 WP 18 and 23. product, and that EPA used general PCB-1242 The Agency has judged the currently product description language in the PCB-1248 approved Method 608 method to be comparable method approved in 40 CFR PCB-1254 acceptable in the evaluation of the 141 for drinking water analyses. PCB-1260 proposed procedure. EPA’s Response: EPA’s limited resources are The parameters listed in the table can Environmental Monitoring Systems not sufficient to fully evaluate all new be determined by gas chromatography Laboratory in Cincinnati, Ohio (EMSL- technologies that may be applicable to using Method 3M 0222. When the Cincinnati) thoroughly reviewed and monitoring programs under the Clean method is used to analyze unfamiliar evaluated the supporting data submitted Water Act. The nationwide alternate test samples for any or all of the compounds by the 3M Corporation. The procedure (ATP) program was listed, compound identifications should comparability reviews indicated that the established 40 CFR Part 136.4 to allow be supported by at least one additional analyses afforded comparable recovery developers of new commercial qualitative technique. The method and precision in the recommended instruments, product or supplies to describes analytical conditions for a concentration ranges for the listed demonstrate the efficacy of the second gas chromatographic column organochlorine pesticides and PCBs. measurement technology to measure that can be used to confirm EPA proposed approval of the pollutant concentration levels. The ATP measurements made with the primary EmporeTM disk procedure and sought program is expensive for the applicant column. public comment on the suitability of as applicability to a broad variety of this method as an alternate procedure wastewaters must be demonstrated. The B. Summary of the Methods for use in the determination of the Agency does not require this applicant A measured volume of sample, parameters listed in 59 FR 65878 to demonstrate that the extraction approximately 1–L, is extracted using a (December 21, 1994). The administrative technology can be made to work using 90 mm EmporeTM disk. The disk is record is on file at EMSL-Cincinnati, 26 competitor’s products. The use of a eluted with acetone followed by W. Martin Luther King Dr., Cincinnati, competitive product in this method methylene chloride. The eluant is dried Ohio 45268. The record is available for would require additional method by pouring through anhydrous sodium public inspection. The approved development to optimize solvents, flow sulfate and exchanged to hexane during procedure is also available from 3M rates, and other features of the method. concentration to a volume of 10-mL or Corporation, 3M Center Building 220– After these procedures have been less. The eluant is separated by gas 9E–10, St. Paul, MN 55144–1000. standardized, a suitable demonstration chromatography and the analytes are Based on EMSL-Cincinnati’s review, of applicability is required. Because of then measured with an electron capture and pursuant to 40 CFR Section 136.5, the diverse nature of wastewaters under detector. EPA has approved the 3M Corporation’s this regulation, a general statement of The method provides a Florisil ‘‘Organochlorine Pesticides and PCBs in applicability could be made only if a column cleanup procedure and an Wastewater Using EmporeTM Disk’’ number of different wastewaters are elemental sulfur removal procedure method as an acceptable alternative tested. Limited use approval could be using activated copper powder to aid in procedure for nationwide use. obtained on a case-by-case basis by the elimination of interferences that Specifically, the method exhibits demonstrating applicability to an may be encountered. sufficient precision and recovery to individual discharger’s wastestream. 39588 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations The quality control tests in the 3M regulatory impact analysis. EPA has private sector, from this rule will be far method referenced by the commenter determined that this regulation is not less than § 100 million. This rule should are performed using reagent water and major as it will not result in an effect on have minimal impact, if any, on the will not demonstrate applicability to the economy of $100 million or more, a existing regulatory burden imposed on wastewater. The Agency actions in Part significant increase in cost or prices, or NPDES permittees required to monitor 141 were based on research on drinking any of the effects described in the for regulated pollutants because the rule water with commercial products from Executive Order. This final rule would would merely make additional options multiple suppliers. Since drinking simply specify an alternative analytical available to the laboratory analyst waters do not contain the high organic procedure which may be used by conducting an existing approved test loads and suspended solids that laboratories in measuring method. EPA has determined that an challenge the solid-phase extraction concentrations of organochlorine unfunded mandates statement therefore procedures, it is easier to establish pesticides and PCBs using EPA Method is unnecessary. Similarly, the method general applicability to the matrix. 608 and, therefore, would have no approved today does not establish any Comment: Commenter has tried these adverse economic impacts. This rule is regulatory requirements that might disks and has encountered some not considered significant under the significantly or uniquely affect small problems with plugging and finds no Executive Order. governments. mention of what to do when this B. Regulatory Flexibility Act List of Subjects in 40 CFR Part 136 happens. Suggests method be limited to Environmental protection, samples with less than 2–5% solids. This amendment is consistent with Response: In the comparison study the objectives of the Regulatory Incorporation by reference, Water performed by 3M, both the approved Flexibility Act (5 U.S.C. 602 et seq.) pollution control. EPA Method 608 and the alternate 3M because it will not have a significant Dated: July 25, 1995. method produced lower results for economic impact on a substantial Carol M. Browner, wastewaters with very high suspended number of small entities. The procedure Administrator. solids and the 3M method contains an included in this final rule would give all In consideration of the preceding, appropriate caution in this regard. A laboratories the flexibility to use this EPA amends part 136 of title 40 Chapter sample with 2–5% solids is generally alternate procedure or not to use it. I of the Code of Federal Regulations as classified as a sludge and is beyond the C. Paperwork Reduction Act follows: scope of this rulemaking. PART 136ÐAMENDED Comment: Commenter provided a This rule contains no requests for series of questions for EPA to use in its information activities and, therefore, no 1. The authority citation for 40 CFR evalation of the 3M method. The information collection request (ICR) was part 136 continues to read as follows: questions addressed technical submitted to the Office of Management Authority: Secs. 301, 304(h), 307, and specifications for the inert and active and Budget (OMB) for review in 501(a) Public Law 95–217, Stat. 1566, et seq. components of the disk, and possible compliance with the Paperwork (33 U.S.C. 1251 et seq.)(the Federal Water limitations of the method caused by Reduction Act, (44 U.S.C. 3501 et seq.). Pollution Control Act Amendments of 1972 as amended by the Clean Water Act of 1977). absorptive capacity, selective absorption D. Unfunded Mandates or sample pH. 2. Section 136.3 is amended as Under Section 202 of the Unfunded Response: The applicant voluntarily follows: Mandates Reform Act of 1995, signed provided EPA with detailed responses a. In Table 1C of paragraph (a) by into law on March 22, 1995, EPA must to each of the questions, although much revising entries 76. PCB–1016, 77. PCB– prepare a written statement to of this information would normally be 1221, 78. PCB–1232, 79. PCB–1242, 80. accompany rules where the estimated treated by EPA as confidential business PCB–1248, 81. PCB–1254, 82. PCB– costs to State, local, or tribal information. The applicant’s response 1260; and by adding footnote 8. governments, or to the private sector has been incorporated into the b. In Table ID of paragraph (a) by will be § 100 million or more in any one α administrative record for this revising entries 1. Aldrin, 8. -BHC, 9. year. Under Section 205, EPA must β δ γ rulemaking. Alternate test procedures -BHC, 10. -BHC, 11. -BHC (Lindane), select the most cost-effective and least ′ ′ are evaluated primarily on the basis of 15. Chlordane, 18. 4,4 -DDD, 19. 4,4 - burdensome alternative that achieves ′ method performance characteristics DDE, 20. 4,4 -DDT, 28. Dieldrin, 32. the objective of such a rule and that is including accuracy, precision, and Endosulfan I, 33. Endosulfan II, 34. consistent with statutory requirements. sensitivity data quality. Endosulfan sulfate, 35. Endrin, 36. Section 203 requires EPA to establish a Endrin aldehyde, 40. Heptachlor, 41. V. Regulatory Requirements plan for informing and advising any Heptachlor epoxide, 46. Methoxychlor, small governments that may be A. Executive Order 12866 and 69. Toxaphene; and by adding significantly and uniquely affected by footnote 8. Under Executive Order 12866, EPA the rule. must judge whether a regulation is EPA estimates that the costs to State, § 136.3 Identification of test procedures. ‘‘major’’ and, therefore, requires a local or tribal governments, or the (a) * * * TABLE IC.ÐLIST OF APPROVED TEST PROCEDURES FOR NON-PESTICIDE ORGANIC COMPOUNDS 2 7 EPA method number Standard methods Parameter 1 ASTM Other GC GC/MS HPLC 18th ed. ******* 76. PCB±1016 ...... 608 625 ...... 6410 B ...... Note 3, p. 43; note 8. 77. PCB±1221 ...... 608 625 ...... 6410 B ...... Note 3, p. 43; note 8. 78. PCB±1232 ...... 608 625 ...... 6410 B ...... Note 3, p. 43; note 8. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39589 TABLE IC.ÐLIST OF APPROVED TEST PROCEDURES FOR NON-PESTICIDE ORGANIC COMPOUNDSÐContinued 2 7 EPA method number Standard methods Parameter 1 ASTM Other GC GC/MS HPLC 18th ed. 79. PCB±1242 ...... 608 625 ...... 6410 B ...... Note 3, p. 43; note 8. 80. PCB±1248 ...... 608 625 ...... Note 3, p. 43; note 8. 81. PCB±1254 ...... 608 625 ...... 6410 B ...... Note 3, p. 43; note 8. 82. PCB±1260 ...... 608 625 ...... 6410 B, 6630 B ...... Note 3, p. 43; note 8. ******* Table IC Notes 1 All parameters are expressed in micrograms per liter (µg/L). 2 The full text of Methods 601±613, 624, 625, 1624 and 1625, are given at appendix A, ``Test Procedures for Analysis of Organic Pollutants,'' of this part 136. The standardized test procedure to be used to determine the method detection limit (MDL) for these test procedures is given at appendix B, ``Definition and Procedure for the Determination of the Method Detection Limit'' of this part 136. 3 ``Methods for Benzidine: Chlorinated Organic Compounds, Pentachlorophenol and Pesticides in Water and Wastewater,'' U.S. Environmental Protection Agency, September, 1978. ******* 7 Each analyst must make an initial, one-time demonstration of their ability to generate acceptable precision and accuracy with Methods 601± 613, 624, 625, 1624 and 1625 (See appendix A of the part 136) in accordance with procedures each in section 8.2 of each of these Methods. Additionally, each laboratory, on and on-going basis must spike and analyze 10% (5% for Methods 624 and 625 and 100% for Methods 1624 land 1625) of all samples to monitor and evaluate laboratory data quality in accordance with sections 8.3 and 8.4 of these Methods. When the recovery of any parameter falls outside the warning limits, the analytical results for that parameter in the unspiked sample are suspect and can- not be reported to demonstrate regulatory compliance. 8 ``Organochlorine Pesticides and PCBs in Wastewater Using Empore TM Disk'', 3M Corporation Revised 10/28/94. TABLE ID.ÐLIST OF APPROVED TEST PROCEDURES FOR PESTICIDES 1 µ 2 7 Standard meth- Parameter g/L Method EPA ods 18th ed. ASTM Other 1. Aldrin ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B ******* 8. α-BHC ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 8. GC/MS 5 625 6410 B 9. β-BHC ...... GC 608 6630 C D3086±90 Note 8. GC/MS 5 625 6410 B 10. δ-BHC ...... GC 608 6630 C D3086±90 Note 8. GC/MS 5 625 6410 B 11. λ-BHC (Lindane) ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B ******* 15. Chlordane ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 8. GC/MS 625 6410 B ******* 18. 4,4′±DDD ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B 19. 4,4′±DDE ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B 20. 4,4′±DDT ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B ******* 28. Dieldrin ...... GC 608 6630 B & C Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B ******* 32. Endosulfan I ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 8. GC/MS 5 625 6410 B 33. Endosulfan II ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 8. GC/MS 5 625 6410 B 34. Endosulfan Sulfate ...... GC 608 6630 C Note 8. GC/MS 625 6410 B 35. Endrin ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. 39590 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations TABLE ID.ÐLIST OF APPROVED TEST PROCEDURES FOR PESTICIDES 1ÐContinued µ 2 7 Standard meth- Parameter g/L Method EPA ods 18th ed. ASTM Other GC/MS 5 625 6410 B 36. Endrin aldehyde ...... GC 608 Note 8. GC/MS 625 ******* 40. Heptachlor ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B 41. Heptachlor epoxide ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 6, p. S73; note 8. GC/MS 625 6410 B ******* 46. Methoxychlor ...... GC ...... 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. ******* 69. Toxaphene ...... GC 608 6630 B & C D3086±90 Note 3, p. 7; note 4, p. 30; note 8. GC/MS 625 6410 B ******* Table ID Notes: 1 Pesticides are listed in this table by common name for the convenience of the reader. Additional pesticides may be found under Table 1C, where entries are listed by chemical name. 2 The full text of Methods 608 and 625 are given at Appendix A. ``Test Procedures for Analysis of Organic Pollutants'', of this Part 136. The standardized test procedure to be used to determine the method detection limit (MDL) for these test procedures is given at Appendix B. ``Defini- tion and Procedure for the Determination of the Method Detection Limit'', of this Part 136. 3 ``Methods for Benzidine, Chlorinated Organic Compounds, Pentachlorophenol and Pesticides in Water and Wastewater'', U. S. Environmental Protection Agency, September, 1978. This EPA publication includes thin-layer chromatography (TLC) methods. 4 ``Methods for Analysis of Organic Substances in Water and Fluvial Sediments'', Techniques of Water-Resources Investigations of the U.S. Geological Survey, Book 5, Chapter A3 (1987). 5 The method may be extended to include α-BHC, 1Τ1δ-BHC, endosulfan I, endosulfan II, and endrin. However, when they are known to exist in the sample, Method 608 is the preferred method. 6 ``Selected Analytical Methods Approved and Cited by the United States Environmental Protection Agency''. Supplement to the Fifteenth Edi- tion of Standard Methods for the Examination of Water and Wastewater (1981). 7 Each analyst must make an initial, one-time, demonstration of their ability to generate acceptable precision and accuracy with Methods 608 and 625 (See Appendix A of this Part 136) in accordance with procedures given in section 8.2 of each of these methods. Additionally, each lab- oratory, on an on-going basis, must spike and analyze 10% of all samples analyzed with Method 608 or 5% of all samples analyzed with Method 625 to monitor and evaluate laboratory data quality in accordance with Sections 8.3 and 8.4 of these methods. When the recovery of any param- eter falls outside the warning limits, the analytical results for that parameter in the unspiked sample are suspect and cannot be reported to dem- onstrate regulatory compliance. These quality control requirements also apply to the Standard Methods, ASTM Methods, and other Methods cited. 8 ``Organochlorine Pesticides and PCBs in Wastewater Using EmporeTM Disk'', 3M Corporation, Revised 10/28/94. 3. In 136.3(b) the list entitled (b) * * * 10/28/94. 3M Corporation, 3M Center ‘‘References, Sources, Costs, and Table References, Sources, Costs, and Table Building 220–9E–10, St. Paul, MN Citations’’ is amended by adding citations: 55144–1000. Method available from 3M paragraph (33) to read as follows: * * * * * Corporation. Table IC, Note 8 and Table ID, Note 8. § 136.3 Identification of test procedures. (33) ‘‘Organochlorine Pesticides and PCBs in Wastewater Using Empore TM [FR Doc. 95–18866 Filed 8–1–95; 8:45 am] * * * * * Disk’’ Test Method 3M 0222, Revised BILLING CODE 6560±50±P federal register August 2,1995 Wednesday Outside theUnitedStates;ProposedRule Custody ofInvestmentCompanyAssets 17 CFRPart270 Commission Exchange Securities and Part V 39591 39592 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules SECURITIES AND EXCHANGE Investment Company Act of 1940 (15 under the rule to evaluate foreign COMMISSION U.S.C. 80a) (the ‘‘Act’’). custody arrangements to the fund’s Table of Contents investment adviser or officers or a U.S. 17 CFR Part 270 or foreign bank. The amended rule I. Executive Summary would provide the board with the [Release Nos. IC±21259; International II. Background III. Discussion flexibility to assign different delegates Series Release No. 831; File No. S7±23± responsibility for addressing different 95] A. Standard for Evaluating Foreign Custody Arrangements aspects of the fund’s arrangements. The RIN 3235±AE98 B. Delegation of Board Responsibilities amended rule also would provide for 1. Appropriate Delegate for Foreign general board oversight of a delegate’s Custody of Investment Company Custody Decisions actions by requiring the delegate to Assets Outside the United States 2. Custody in Foreign Countries provide the board with periodic reports a. Prevailing Custodial Risks concerning the fund’s arrangements. AGENCY: Securities and Exchange b. Compulsory Depositories The board would no longer be required Commission. 3. Selecting Foreign Custodians 4. Foreign Custody Contracts to approve foreign custody ACTION: Proposed rule amendments and arrangements annually. request for comment. a. Proposed Approach b. Request for Comment on Specific In addition to updating and refining SUMMARY: The Commission is proposing Contract Provisions certain other provisions of rule 17f–5, amendments to the rule under the 5. Monitoring Custody Arrangements and the amendments would expand the Withdrawing Assets from Custodians Investment Company Act of 1940 that class of foreign banks and depositories C. Eligible Foreign Custodians that could serve as fund custodians. governs the custody of investment 1. Banks and Trust Companies company assets outside the United Foreign banks would no longer have to a. Proposed Approach meet specific capital requirements and States. The amendments would revise b. Other Alternatives Considered the findings that currently must be 2. Non-Compulsory Depositories and foreign depositories would no longer made in establishing foreign custody Transnational Systems have to operate the only system for the arrangements to focus exclusively on D. Assets Maintained in Foreign Custody handling of securities in a country. The the safekeeping of investment company E. Canadian and Other Foreign Funds amended rule would require foreign assets. In addition, the amendments F. Disclosure of Custody Risks custodians to be subject to foreign G. Unit Investment Trusts would provide investment companies regulation. In addition, in connection IV. Cost/Benefit Analysis with a custodian’s selection, the with greater flexibility to address V. Summary of Initial Regulatory Flexibility foreign custody arrangements by amended rule would require a finding Analysis that the custodian will provide permitting a company’s board of VI. Statutory Authority directors to delegate its responsibilities Text of Proposed Rule Amendments reasonable protection for the fund’s under the rule to evaluate these assets based on all relevant factors, I. Executive Summary arrangements. The amendments also including the custodian’s financial would expand the class of foreign banks The Commission is proposing strength. This approach seeks to address and securities depositories that could amendments to rule 17f–5 to facilitate safekeeping considerations without serve as investment company the use of foreign custody arrangements imposing capital and other requirements custodians. The proposed amendments by registered management investment that may unnecessarily limit fund use of are intended to facilitate the use of companies (‘‘funds’’). Among other appropriate foreign custodians. foreign custody arrangements, things, the amendments would revise II. Background consistent with the safekeeping of the findings that must be made in investment company assets. establishing foreign custody Over the last ten years, the fund arrangements. Under the current rule, a industry has become increasingly DATES: Comments must be received on international in its investment or before October 6, 1995. fund’s board of directors must find that the fund’s arrangements are consistent perspective. At the end of 1984, shortly ADDRESSES: Comments should be with the best interests of the fund and after rule 17f–5 was adopted, only 35 submitted in triplicate to Jonathan G. its shareholders. This standard may be funds invested significant amounts of Katz, Secretary, Securities and Exchange overbroad since it suggests, for example, their assets in foreign securities.1 By the Commission, 450 Fifth Street, N.W., that, in considering foreign custody end of 1994, the number of funds Stop 6–9, Washington, D.C. 20549. All arrangements, a fund’s board needs to participating in foreign markets had comment letters should refer to File No. assess factors other than custodial risks. increased almost twentyfold, with over S7–23–95. All comments received will The amended rule would require 650 funds investing significant amounts be available for public inspection and findings that the fund’s foreign custody of their assets outside the United copying in the Commission’s Public arrangements will provide reasonable States.2 Reference Room, 450 Fifth Street, NW., protection for fund assets. The proposed Washington, DC 20549. ‘‘reasonable protection’’ standard 1 Investment Company Institute, The Growth FOR FURTHER INFORMATION CONTACT: Continues 1993 Perspective on Mutual Fund should facilitate evaluations of foreign Activity 7 (Summer 1993); Lipper Analytical Elizabeth R. Krentzman, Assistant Chief, custody arrangements by focusing Services, Inc. (‘‘Lipper’’), Year Over Year or Kenneth J. Berman, Assistant exclusively on safekeeping Comparison of Growth by Objective of Closed-End Director, (202) 942–0690, Office of considerations. Funds (1980–1990) (prepared for the Commission). Regulatory Policy, Division of 2 Investment Company Institute, Trends in The amendments also would allow Mutual Fund Activity (Dec. 1994) (ICI News No. Investment Management, 450 Fifth fund directors to play a more traditional ICI–95–05); Lipper, Closed-End Fund Performance Street, NW., Washington, DC 20549. oversight role with respect to foreign Analysis Service (Jan. 31, 1995) (as supplemented SUPPLEMENTARY INFORMATION: The custody arrangements than that required by the Commission staff to reflect closed-end funds that liquidated or converted to open-end status Commission today is requesting public under the current rule. Under the during the ten-year period ending December 31, comment on proposed amendments to amendments, the board would be 1994). Based on Commission filings, the Division of rule 17f–5 (17 CFR 270.17f–5) under the permitted to delegate its responsibility Investment Managements estimates that over 2,200 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39593 The availability of custodial Rule 17f–5 expanded the foreign commenters, as well as others, have arrangements in foreign markets where custody arrangements available to indicated that rule 17f–5 places a fund invests is important. Maintaining funds.8 Under the rule, the fund’s board inappropriate burdens on fund securities outside of their primary of directors must approve each country directors.15 Commenters have observed market can add significant costs to where the fund’s assets will be that the rule requires directors to investing in that market and may maintained, each foreign bank or ‘‘micro-manage’’ foreign custody preclude foreign investment.3 depository that will hold the assets, and arrangements, which is inconsistent Section 17(f) of the Act and the rules the contract governing the with the oversight role directors thereunder govern the safekeeping of arrangement.9 The rule requires foreign generally perform.16 Commenters also fund assets.4 The legislative history and custody contracts to contain certain have indicated that directors usually requirements of section 17(f) indicate provisions, and Notes to the rule lack the expertise to make foreign that Congress intended fund assets to be enumerate factors that the board should custody determinations, and that, in kept by financially secure entities that consider in placing fund assets in discharging their responsibilities under have sufficient safeguards against foreign countries and with foreign the rule, directors rely almost misappropriation.5 Under section 17(f), custodians.10 In addition, the rule exclusively on the analysis and only U.S. banks and their foreign requires the fund’s board to monitor recommendations of third parties such branches, members of a U.S. securities foreign custody arrangements and to as the fund’s adviser and primary exchange, funds themselves, and U.S. approve the arrangements at least custodian.17 securities depositories may serve as annually.11 Commenters, including the ICI and fund custodians.6 Before rule 17f–5 was Rule 17f–5 limits ‘‘eligible foreign the Custodian Group, also have adopted, therefore, funds seeking to custodians’’ to foreign banks and trust indicated that the rule’s definition of an maintain their assets outside the United companies that either have more than eligible foreign custodian is too States could use only foreign branches $200 million in shareholders’ equity or restrictive.18 Since rule 17f–5 was of U.S. banks as foreign custodians.7 are majority-owned subsidiaries of U.S. adopted, foreign custodial arrangements banks or bank holding companies with have evolved significantly. Today, the fund portfolios maintained some of their assets in more than $100 million in shareholders’ safekeeping of foreign investments foreign custody arrangements during the past year. equity.12 Foreign depositories that hold typically is effected through the fund’s 3 Moving securities away from their primary fund assets must operate either the only market may entail additional costs in connection primary custodian, which uses a global with hiring a servicing agent in the primary locality system for a country’s handling of custody network consisting of various to collect and disseminate information with respect securities or a transnational system for foreign custodians with which the to the securities, transferring the securities to an the central handling of securities.13 primary custodian has established eligible custodian and procuring insurance for The Commission’s Division of possible loss in transit, and exchanging coupons for relationships.19 In addition, many interest or dividends or for new shares in Investment Management (‘‘Division’’) countries have securities depositories, connection with a rights offering. Exemption for has received extensive submissions which offer ‘‘paperless’’ book-entry Custody of Securities by Foreign Banks and Foreign urging amendment of rule 17f–5 from systems for the custody of fund assets.20 Securities Depositories, Investment Company Act the Investment Company Institute Release No. 12354 (Apr. 5, 1982), 47 FR 16341, A number of exemptive orders and 16342 (hereinafter 1982 Proposing Release). Funds (‘‘ICI’’) and a group of custodians that no-action letters have addressed the also may be prevented from, or delayed in, selling provide global custody services to funds the securities if they are unable to make timely 14 (the ‘‘Custodian Group’’). These SEC (Oct. 13, 1993) (hereinafter ICI Letter II); Letter delivery to prospective purchasers in the primary from Stephen K. West, Sullivan & Cromwell, to market. Id. In addition, the best price for a foreign Barry P. Barbash, Division Director, SEC (Sept. 29, security typically may be obtained in its primary Manhattan Bank, Investment Company Act Release 1994) (hereinafter ICI Letter III); Letter from Daniel market. Id. Nos. 12002 (Oct. 23, 1981), 46 FR 53567 (Notice of Application) and 12053 (Nov. 20, 1981), 24 SEC L. Goelzer, Baker & Mackenzie (on behalf of Bankers 4 15 U.S.C. 80a–17(f). Docket 109 (Order). Trust Company, Boston Safe Deposit and Trust 5 Investment Trusts and Investment Companies: 8 Exemption for Custody of Investment Company Company, Brown Brothers Harriman & Co., Chase Hearings on S. 3580 Before a Subcomm. of the Assets Outside the United States, Investment Manhattan Bank, Morgan Guaranty Trust Company Senate Comm. on Banking and Currency, 76th Company Act Release No. 14132 (Sept. 7, 1984), 49 of New York, Morgan Stanley Trust Company, and Cong., 3d Sess. 264 (1940). Cf. 10 SEC Ann. Rep. FR 36080 (hereinafter 1984 Adopting Release). Rule State Street Bank and Trust Company), to Barry P. 169 (1944) (discussing section 17(f) and its 17f–5 was proposed in 1982 and reproposed in Barbash, Division Director, SEC (Feb. 9, 1994) protections against theft and embezzlement by 1984. See 1982 Proposing Release, supra note 3; (hereinafter Custodian Letter I); Letter from Daniel affiliated persons). Exemption for Custody of Investment Company L. Goelzer, Baker & Mackenzie, to Elizabeth R. 6 Bank custodians must be subject to federal or Assets Outside the United States, Investment Krentzman, Special Counsel, SEC (Oct. 20, 1994) state regulation and have at least $500,000 in Company Act Release No. 13724 (Jan. 17, 1984), 49 (hereinafter Custodian Letter II); Letter from Daniel aggregate capital, surplus, and undivided profits. FR 2904 (hereinafter 1984 Reproposing Release). In L. Goelzer, Baker & Mackenzie, to Barry P. Barbash, Investment Company Act sections 2(a)(5), 15 U.S.C. addition, certain technical amendments were made Division Director, SEC (Nov. 3, 1994) (hereinafter 80a–2(a)(5) (defining bank), and 26(a)(1), 15 U.S.C. to the rule after its adoption. Custody of Investment Custodian Letter III). These letters are located in the 80a–26(a)(1) (containing the $500,000 capital Company Assets Outside of the United States, Commission’s Public Reference Room under File requirement). See also rule 17f–1, 17 CFR 270.17f– Investment Company Act Release Nos. 14548 (May No. S7–23–95. 1 (custody by members of a U.S. securities 31, 1985), 50 FR 24540 (hereinafter 1985 Release 15 See Division of Investment Management, SEC, exchange), rule 17f–2, 17 CFR 270.17f–2 (custody Proposing Amendments), and 14711 (Sept. 11, Protecting Investors: A Half Century of Investment by funds themselves), and rule 17f–4, 17 CFR 1985), 50 FR 37654 (hereinafter 1985 Release Company Regulation 270 n.78 (1992) (hereinafter 270.17f–4 (custody by U.S. securities depositories). Adopting Amendments]) Protecting Investors report). See generally Custody of Investment Company 9 Rule 17f–5(a)(1)(i)–(iii). See also ‘‘Discussion— 16 Assets with Futures Commission Merchants and Id. Assets Maintained in Foreign Custody’’ below. 17 Commodity Clearing Organizations, Investment Id. 10 Company Act Release No. 20313 (May 24, 1994), 59 Rule 17f–5(a)(1)(iii), Rule 17f–5, Notes 1 and 2. 18 See, e.g., ICI Letter II, supra note 14; Custodian FR 28286 (proposing rule 17f–6, which would 11 Rule 17f–5(a)(2) and (3). Letter I, supra note 14. permit custody of fund assets by futures 12 Rule 17f–5(c)(2)(i) and (ii). Non-subsidiary 19 See John Paul Lee & Richard Schwartz, Global commission merchants and commodity clearing foreign bank and trust companies also must be Custody: A Guide for the Nineties (1990). Funds organizations). subject to foreign regulation. also use different custodian networks for different 7 1982 Proposing Release, supra note 3, at 16342 13 Rule 17f–5(c)(2)(iii) and (iv). geographical regions. See Andrew Sollinger, n.11. Before rule 17f–5 was adopted, several 14 Letter from Matthew P. Fink, President, ICI, to Breaking Away, Institutional Investor 171 (Sept. Commission orders under section 17(f) permitted Marianne K. Smythe, Division Director, SEC (Jan. 1991). funds to place their assets with certain foreign 18, 1993) (hereinafter ICI Letter I); Letter from 20 See Group of Thirty, Clearance and Settlement banks if the fund’s U.S. custodian assumed Catherine L. Heron, Vice President (Tax and Systems in the World’s Securities Markets 7, 51–64 responsibility for the arrangement. See Chase Pension), ICI, to Barry P. Barbash, Division Director, (Mar. 1989) (hereinafter Group of Thirty Report). 39594 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules eligibility of certain foreign banks and focusing exclusively on the safekeeping may include, in the case of foreign depositories to serve as fund of fund assets. delegates, the board’s ability to monitor custodians.21 Obtaining administrative the delegate’s performance and the B. Delegation of Board Responsibilities relief with respect to a particular fund’s ability to obtain U.S. jurisdiction custodian, however, may involve 1. Appropriate Delegate for Foreign over the delegate if problems arise in the significant amounts of time and Custody Decisions delegate’s performance. expense, and may delay or impede The amended rule would permit fund The amended rule would not require investment in some foreign boards to play a role more consistent the board to approve the fund’s foreign jurisdictions. Exemptive orders and no- with their traditional oversight role in custodians or other foreign custody action letters also may have the connection with a fund’s foreign matters on an initial or annual basis.29 unintended effect of suggesting custody arrangements, by allowing the The board also would not be required to Commission approval with respect to board to delegate its responsibilities pre-approve or ratify actions taken by safekeeping abilities of some custodians, under the rule to the fund’s investment the delegate, such as the selection of particularly in the case of foreign adviser or officers or a U.S. or foreign particular foreign custodians or changes depositories. bank.24 The fund’s investment adviser in those arrangements.30 Instead, the Based on the evolution of foreign or custodian are likely to be in a better amended rule would require the markets and related custodial systems, position than the fund’s board to delegate to provide the board with the concerns raised by industry evaluate the sorts of factors that would written reports notifying the board of commenters, and the Commission’s be involved in assessing whether a the placement of the fund’s assets in a administrative experience, the custodial arrangement will afford particular country and with a particular Commission is proposing amendments reasonable protection for fund assets. custodian.31 The delegate also would to rule 17f–5. The amendments seek to Under the amended rule, the board have to provide written reports of any facilitate the use of foreign custody could use different delegates for material changes in the fund’s arrangements, consistent with the different foreign custody arrangements.32 These reports, which safekeeping of fund assets. responsibilities.25 This approach seeks are intended to facilitate the board’s III. Discussion to provide the board with the flexibility oversight of the delegate’s performance, to delegate components of foreign would be provided to the board no later A. Standard for Evaluating Foreign custody decisions to the entity it than the next regularly scheduled board Custody Arrangements determines is in the best position to Rule 17f–5 currently requires fund evaluate those aspects of the fund’s information regarding the nature and operation of 26 boards of directors to find that the arrangements. a foreign country’s custody facilities); Gordon In selecting particular delegates for Altman Butowsky Weitzen Shalov & Wein, A fund’s foreign custody arrangements are foreign custody decisions, the board, Practical Guide to the Investment Company Act 30 consistent with the best interests of the (1993) (indicating that, under the current rule, the under the amended rule, would need to fund and its shareholders. This finding fund’s custodian typically provides the board with find that it is reasonable to rely on the must be made with respect to the information concerning foreign legal restrictions delegate to perform the delegated and the qualifications of the foreign custodians custody of the fund’s assets in a responsibilities.27 Factors typically used by the fund); Glorianne Stromberg, Regulatory particular country, each foreign Strategies for the Mid-’90s; Recommendations for involved in making this determination custodian that holds the assets, and the Regulating Investment Funds in Canada (prepared would include the expertise of the foreign custody contract.22 The for the Canadian Securities Administrators) 242 delegate and, if applicable, the (Jan. 1995) (suggesting it is unlikely that an Commission believes that the ‘‘best delegate’s intended use of third party individual investment company or its adviser will interest’’ standard may be overly broad have the expertise or bargaining power to deal with experts in performing its numerous and varied foreign custodians throughout and difficult for directors to apply. The responsibilities.28 Other relevant factors standard and certain Notes to the the world). 29 See rule 17f–5(a)(3) (requiring the board to current rule, for example, suggest that, 24 The Commission previously considered annually approve foreign custody arrangements). in considering foreign custody permitting U.S. custodians to select particular See also Revision of Certain Annual Review arrangements, a fund’s board needs to foreign custodians. 1982 Proposing Release, supra Requirements of Investment Company Boards of assess factors other than custodial risks, note 3, at 16345–46; 1984 Reproposing Release, Directors, Investment Company Act Release No. 23 supra note 8, at 2910. See also Protecting Investors 19719 (Sept. 17, 1993), 58 FR 49919 (rule such as the risk of expropriation. report, supra note 15, at 270–71 (recommending amendments eliminating certain annual approval The Commission believes that the that the Commission consider revising rule 17f–5 to requirements). amended rule should require foreign make the fund’s adviser or primary domestic 30 The amended rule, however, would not custody arrangements to be evaluated custodian responsible for foreign custody matters, preclude a board and its delegate from agreeing that subject to the board’s general oversight; also the board’s guidance would be sought on a based on the level of safekeeping they recommending that the Commission consider particular matter, such as changing custodians. See will afford fund assets. Thus, the requiring indemnification protections from the Custodian Letter II, supra note 14, at 16–17 amended rule would require findings fund’s domestic custodian). (expressing concerns that, without the board’s that the fund’s foreign custody 25 The adviser, for example, could evaluate the involvement, responsibility for changing custodians risks associated with the custody of the fund’s could increase a delegate’s liability if, for example, arrangements will provide reasonable assets in a particular jurisdiction and a U.S. the delegate does not make a custodian change and protection for fund assets. The proposed custodian could evaluate the risks of using specific fund assets are lost as a result of the custodian’s ‘‘reasonable protection’’ standard is foreign custodians. insolvency). intended to facilitate evaluations of 26 Proposed rule 17f–5(b). U.S. bank delegates 31 Proposed rule 17f–5(b)(2). foreign custody arrangements by would have to be subject to federal or state 32 Id. A material change in the fund’s regulation by virtue of the definition of bank in arrangements could include a delegate’s decision to section 2(a)(5) of the Act. Through the definition of remove the fund’s assets from a particular 21 See ‘‘Discussion—Eligible Foreign Custodians’’ ‘‘qualified foreign bank,’’ proposed rule 17f–5(d)(6) jurisdiction or custodian. A material change also below. would require foreign delegates to be regulated as could include circumstances that may adversely 22 See rule 17f–5(a)(1)–(3). either a foreign banking institution or trust affect a foreign custodian’s financial or operational 23 See 1984 Reproposing Release, supra note 8, at company by the government of the country under strength, such as a change in control resulting from 59608 (in making the required best interest finding, whose laws it is organized or any agency thereof. the custodian’s sale. If appropriate, the delegate’s the board should weigh the risks of maintaining the 27 Proposed rule 17f–5(b)(1). report could discuss the reasons for continuing to securities in or near a country against the benefits 28 See generally Custodian Letter II, supra note 14, maintain the fund’s assets in the country or with of the arrangement). at 2 (indicating that U.S. custodians can provide a particular custodian. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39595 meeting following the delegate’s fund’s foreign custodians.37 The ICI mandate the standard of care to be used actions.33 suggested that evaluating foreign by delegates in making custodial The Commission requests comment custodian arrangements is within the decisions? 43 on the proposed approach and possible expertise of the fund’s U.S. custodian Finally, the Commission requests and not the fund’s adviser.38 The alternatives. The Commission requests comment generally on the relationship Custodian Group expressed concerns specific comment on the proposed between the level of the delegate’s role entities to which foreign custody about advisers being in a position to make a U.S. custodian use a foreign in selecting foreign custodians and the responsibilities could be delegated. In flexibility that a fund should have in particular, the Commission requests custodian with which the U.S. using particular custodians. For comment whether U.S. and foreign bank custodian does not have a pre-existing example, current rule 17f–5 both limits delegates should be required to meet relationship and whose practices and the class of foreign banks that are specific capital standards. The procedures do not meet the U.S. Commission also requests comment custodian’s standards.39 eligible to hold fund assets (based on, whether custodian delegates should be Although these approaches may limit among other things, their shareholder’s limited to U.S. banks.34 Alternatively, flexibility, they could eliminate equity) and requires the fund’s board to should the rule permit the board to use potential questions between different select an appropriate custodian from any party that, in the board’s judgment, delegates concerning their respective that class based on several qualitative would be qualified to make foreign roles in foreign custody matters. They factors (such as the bank’s reputation). custody decisions? also could eliminate the need to As discussed below, the amended rule attribute various foreign custody risks to The Commission also requests would not require foreign custodians to the practices of a particular country or satisfy an objective financial standard.44 comment whether the amended rule 40 foreign custodian. The amended rule instead would should require the same delegate to The Commission also requests require the board’s delegate to select evaluate all aspects of the fund’s comment on the proposed requirements foreign custodians based on the arrangements or tie certain relating to the board’s delegation. The 35 responsibilities to particular delegates. Commission requests specific comment qualitative determination that the The ICI and the Custodian Group, for on requiring the board to determine that custodian will provide reasonable 45 example, indicated that the fund’s it is reasonable to rely on the delegate protection for the fund’s assets. adviser should be the exclusive delegate to perform the delegated responsibilities The Commission requests comment for considering a county’s custodial and whether another standard would be on an alternative approach that would risks because of the relationship more appropriate. The Commission also rely exclusively on objective standards between decisions to invest in the requests comment on requiring to determine those custodians that country and maintain the fund’s assets delegates to provide the board with would be eligible to hold fund assets. in that country.36 They also suggested periodic reports concerning the fund’s Under this approach, having determined that U.S. bank custodians should be the arrangements. In particular, does the that a potential custodian meets the only eligible delegates for selecting the proposed approach appropriately rule’s objective standards, a delegate address the role of the board in foreign would not be required to evaluate the 33 Proposed rule 17f–5(b)(2). See ICI Letter I, custody matters? Should, for example, appropriateness of the foreign custodian supra note 14, at 6–7; Custodian Letter I, supra note the rule require the board to establish 14, at 18 (recommending that delegates provide based on any qualitative determination. written year-end reports). guidelines and procedures governing a 41 Nor would the delegate be required by 34 delegate’s responsibilities? Should the Several exemptive orders relating to rule 17f– the rule to provide the fund’s board 5 involve foreign banks and their foreign rule specify particular representations subsidiaries. See, e.g., Barclays Bank PLC, that delegates must make in performing with specific reports concerning the Investment Company Act Release Nos. 20128 (Mar. their responsibilities? 42 Should the rule fund’s arrangements.46 Commenters 10, 1994), 59 FR 12390 (Notice of Application) and favoring this approach should 20192 (Apr. 5, 1994), 56 SEC Docket 1117 (Order). 35 Requiring the same delegate to evaluate all 37 ICI Letter III, supra note 14, at 3 and at 1, 6 recommend specific objective standards aspects of foreign custody arrangements could (Exhibit A); Custodian Letter I, supra note 14, at 8– that would not unduly limit or preclude effectively eliminate the potential for U.S. 9 and at 3–4, 7–8 (Exhibit A) (also recommending the use of qualified foreign custodians.47 that boards be permitted to delegate to U.S. custodians to serve as delegates, since the Commenters also should consider Custodian Group has suggested that U.S. custodians custodians the authority to negotiate and approve may be unwilling to evaluate the prevailing foreign custody contracts and to monitor the fund’s whether objective standards, by custodial risks of a particular country. See infra arrangements). themselves, would protect fund assets 38 note 36 and accompanying text. ICI Letter III, supra note 14, at 3. or whether, consistent with the current 36 ICI Letter I, supra note 14, at 4, n.5; ICI Letter 39 Custodian Letter I, supra note 14, at 8. III, supra note 14, at 1–3; Custodian Letter I, supra 40 Under the current rule, for example, the board rule, delegates should be required to note 14, at 6–7; Custodian Letter II, supra note 14, is responsible for both the decision to place fund consider additional qualitative factors. at 2. See also Custodian Letter III, supra note 14, assets in a particular country and with a particular at 2. The Custodian Group indicated that, because custodian. If a country’s prevailing custodial risks representations to the board prior to using a foreign decisions relating to a country’s prevailing are not evaluated by the board in deciding to custodian). custodial risks may depend on the fund’s maintain assets in a particular jurisdiction, these 43 investment strategies and willingness to accept risks would be considered in selecting particular See ICI Letter III, supra note 14, at 3 and at 1, certain risks, custodians are not in a position to custodians in that jurisdiction. See also infra notes 6 (Exhibit A); Custodian Letter I, supra note 14, at make these assessments. Custodian Letter I, supra 49 and 71 and accompanying text. 8–9 and at 3–4, 7–8 (Exhibit A) (recommending note 14, at 6–7; Custodian Letter II, supra note 14, 41 See ICI Letter III, supra note 14, at 1–3 (Exhibit that, in selecting foreign custodians, U.S. bank at 2; Custodian Letter III, supra note 14, at 2. The A); Custodian Letter I, supra note 14, at 3–5 (Exhibit delegates be required to act with the degree of care, Custodian Group also asserted that requiring U.S. A) (recommending board-approved guidelines and prudence, and diligence of a reasonable custodians to evaluate prevailing custodial risks procedures that include factors governing a professional custodian under applicable state law). would transfer new liabilities to U.S. banks, which delegate’s selection of foreign custodians). See also 44 See ‘‘Eligible Foreign Custodians’’ below. could raise bank regulatory concerns. Id. at 5–6. rules 10f–3, 17a–7, and 17e–1 under the Act, 17 45 See ‘‘Selecting Foreign Custodians’’ below. As discussed infra notes 62–68 and CFR 270.10f–3, –17a–7, –17e–1 (consistent with 46 This approach would be consistent with the accompanying text, the ICI and the Custodian this approach). provisions of section 17(f) governing the custody of Group viewed differently the responsibilities 42 See ICI Letter III, supra note 14, at 5 (Exhibit fund assets with a domestic bank. See supra note involved in determining whether to maintain A); Custodian Letter I, supra note 14, at 7 (Exhibit 6. custody of fund assets in a particular country. A) (recommending that delegates make certain 47 See ‘‘Eligible Foreign Custodians’’ below. 39596 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 2. Custody in Foreign Countries factors, the prevailing practices in a In addition, the amended rule would a. Prevailing Custodial Risks country for the safekeeping of the fund’s permit the delegate to consider any assets.53 Evaluating a country’s special arrangements that mitigate Rule 17f–5 requires a fund’s board to custodial practices typically would prevailing custodial risks.59 Such approve each country where the fund’s involve, among other things, arrangements would include, for 48 assets will be maintained. Because considering the manner in which example, insurance or guarantee placing fund assets in a particular securities are maintained (e.g., whether agreements covering the loss of fund country may affect the safekeeping of securities are held in physical or assets. Such arrangements also may those assets, the amended rule would uncertificated form), the physical include instituting special procedures continue to address the risks associated protections available for certificated that depart from prevailing practices with custody of a fund’s assets in a securities (e.g., the use of vaults or other 49 and are designed to reduce custodial foreign country. facilities), the method of keeping risks. A recent Division no-action The amended rule would require a custodial records (e.g., the use of position, for example, was based, in finding that custody of the fund’s assets computers, microfilm or paper records), part, on the existence of certain in a particular country can be custodial communication systems (e.g., contractual protections that would not maintained in a manner that will the use of electronic media, telex, or otherwise have been given in the course provide reasonable protection for those telephone), security and data protection of the country’s prevailing custody assets.50 Making the proposed practices (e.g., alarm systems and the practices.60 determination would not require a use of pass codes and back-up finding that fund assets could never be procedures for electronically stored The Notes to the current rule instruct lost in a foreign country.51 Rather, the information), and the protections the fund’s board to consider the proposed determination would require provided by governmental or other likelihood of various adverse political the delegate to consider whether the regulatory oversight.54 These events (e.g., the expropriation or fund’s assets will be maintained in a considerations seek to address the freezing of assets) and potential manner that will provide reasonable systemic custodial risks of a particular difficulties in converting the fund’s cash protection based on all relevant factors country. Although evaluating a and cash equivalents to U.S. dollars.61 and, in particular, the factors specified country’s custodial practices would The amended rule would not address in the amended rule.52 require knowledge of foreign custody these risks. Although these risks may The amended rule would require the arrangements, it would not require a affect the safety and liquidity of fund delegate to evaluate, among other finding concerning the protections assets, they appear to relate more to the provided by any specific foreign investment risks of a particular country 48 See rule 17f–5(a)(1)(i). custodian.55 than the custodial risks of that country. 49 See Custodian Letter I, supra note 14, at 6–7 In evaluating the custodial risks of a Adverse political events and foreign (indicating that deciding to place assets in a particular country, the delegate would particular country may mean accepting certain risks exchange problems, for example, may if custodial protections comparable to those of the be required to assess any adverse effects threaten fund assets regardless of where United States are not available in the foreign foreign law may have on the safekeeping the assets are held. The Commission jurisdiction). of fund assets.56 The delegate believes that these risks should be The proposed approach also seeks to address specifically would have to consider considered in connection with the circumstances where different delegates assess the whether foreign law would restrict (A) custodial risks of a particular country and the risks determination that a fund should invest of using a particular foreign custodian. If, for the access of the fund’s accountants to in a particular country. example, a country’s prevailing custodial risks are the custodian’s books and records and not evaluated by a delegate in deciding to maintain (B) the fund’s ability to recover its assets The ICI and the Custodian Group assets in the country, a different delegate selecting in the event of a custodian’s bankruptcy recommended different approaches to the fund’s foreign custodians could determine that or a loss of assets in the custodian’s evaluating a country’s prevailing the custody of the fund’s assets in that country custodial risks. The ICI recommended presents unacceptable risks, without regard to the control. These factors are derived from protections provided by any specific custodian. the Notes to the current rule.57 The eliminating country-related risk Delegates making the respective country-wide and amended rule would broaden the determinations from the rule.62 The ICI custodian risk assessments could, in effect, disagree current rule, however, by requiring indicated that, for the most part, the over the appropriateness of maintaining fund assets risks of maintaining assets in a in the country. Such disputes may have to be consideration of all relevant foreign resolved by the board, which could undermine the legal constraints, in addition to those particular jurisdiction (e.g., purposes of delegation by re-involving the board in governing the custodian’s books, expropriation risks) are independent of foreign custody decisions. bankruptcy, and loss of assets.58 the risks associated with using a specific 50 Proposed rule 17f–5(a)(1). Consistent with the current rule, this finding would have to be made prior to placing the fund’s assets in the country. 53 Proposed rule 17f–5(a)(1)(i). reasonable protection for those assets, however, The amended rule would not address the 54 The importance of each of these factors would delegates would not be required to find that the investment risks associated with investing in depend on the particular jurisdiction and related protections provided by foreign law are equivalent foreign securities, since these risks fall outside the securities market. For example, vault facilities and to U.S. standards. scope of rule 17f–5. alarm systems may be less important in markets 59 Proposed rule 17f–5(a)(1)(iii). 51 This approach would be consistent with the where securities are primarily held in book-entry 60 Templeton Russia Fund, Inc. (pub. avail. Apr. current rule. form. Similarly, the need for electronic information 18, 1995) (contracts between the fund’s foreign systems may be more important in markets with a 52 Throughout this release, references are made to custodian and certain registries). high volume of securities transactions than in a delegate’s responsibilities, since the amendments 61 Rule 17f–5, Notes 1(d)–(e). markets where trading is less frequent. See contemplate that the board will use one or more 62 ICI Letter III, supra note 14, at 3–7. The ICI’s Custodian Letter II, supra note 14, at 4–5. delegates to establish and oversee the fund’s foreign proposal would require the decision to place assets 55 custody arrangements. If, however, the board See ‘‘Selecting Foreign Custodians’’ below. in a particular jurisdiction to have been made by decides to retain decision-making authority for 56 Proposed rule 17f–5(a)(1)(ii). the board or adviser as a condition precedent to foreign custody matters, these responsibilities 57 See rule 17f–5, Notes 1(a)–(c). selecting specific foreign custodians. Id. at 6–7. The would remain with the board. The amended rule 58 In evaluating any adverse effects foreign law ICI indicated that the board or adviser would uses the term foreign custody manager to recognize may have on the safekeeping of fund assets, consider the custodial risks of a particular that a delegate or the board may assume consideration of U.S. legal standards may be jurisdiction in deciding whether to invest in the responsibility for the fund’s arrangements. See relevant. In determining whether custody of fund country. ICI Letter I, supra note 14, at 4, n.5; ICI proposed rule 17–f(d)(1). assets in a particular country will provide Letter III, supra note 14, at 6–9. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39597 foreign custodian.63 The ICI indicated the selection of compulsory depositories the depository, whether the depository’s that, as a consequence, assessments of part of the assessment of a country’s involvement is required to transfer country-related risks are not appropriate prevailing custodial risks.70 The securities ownership, and whether considerations for a foreign custody amended rule would require a finding significant time and expense are rule.64 The ICI also expressed concerns that using a compulsory depository will associated with keeping securities that requiring evaluations of a country’s provide reasonable protection for the outside the depository.75 prevailing custodial risks would transfer fund’s assets based on factors specified The Commission requests comment to the country selection process the in the amended rule governing the 71 on requiring compulsory depositories to responsibility to determine whether one selection of foreign custodians. be evaluated in connection with The amended rule would define a or more custodians in a country could assessments of a country’s prevailing compulsory depository as a depository provide reasonable protections for the custodial risks.76 The Commission also 65 the use of which is mandatory (i) by law fund’s assets. requests comment on the proposed or regulation, (ii) because securities The Custodian Group recommended definition of compulsory depository. that the rule require an evaluation of a cannot be withdrawn from the country’s prevailing custodial risks depository, or (iii) because maintaining 3. Selecting Foreign Custodians 77 prior to placing assets in that securities outside the depository is not jurisdiction.66 As to the factors consistent with prevailing custodial The amended rule would require a governing these assessments, the practices.72 Part (iii) of the proposed finding that using a particular custodian definition is intended to recognize cases will provide reasonable protection for Custodian Group recommended that the 78 Commission consider adding two new when a depository’s use is effectively the fund’s assets. Selecting foreign factors to the Notes to the current rule.67 compulsory as a result of prevailing custodians would not involve The Custodian Group’s new factors practices even though securities may be reassessments of a country’s prevailing would require the board’s delegate to held outside of the depository.73 custodial risks and the use of any evaluate each securities depository in Determining whether a depository’s use compulsory depositories. Under the the country and to consider whether the is compulsory would depend on the amended rule, these matters would be 74 financial systems in the country, facts and circumstances presented. evaluated in determining whether the including the methods for securities Factors relevant to making this custody of the fund’s assets in the determination may include whether country will provide reasonable settlement and custody, are sufficient to 79 provide reasonable protection for the virtually all securities are maintained in protection for those assets. fund’s assets.68 In selecting foreign custodians, the 70 See Custodian Letter I, supra note 14, at 4–5, delegate would not be required to find The Commission requests comment 6–7 and Custodian Letter II, supra note 14, at 11– on these two approaches. The 12 (indicating that, once a fund invests in a country that assets could never be lost while in Commission also requests comment on with a compulsory depository, the fund’s custodian the foreign custodian’s possession. an alternative approach that would (or any foreign bank custodian in that country) has Instead, the amended rule would focus no choice but to use the compulsory depository). on the reasonableness of a custodian’s make evaluations of a country’s The current rule does not distinguish between prevailing custodial risks part of the compulsory depositories and other foreign protections based on all relevant factors custodian selection process. Such an custodians or associate the use of any specific and, in particular, those factors approach would simplify the rule and foreign custodian with the decision to maintain specified in the amended rule.80 The assets in a particular country. proposed factors that would govern the should not raise any safekeeping 71 Proposed rule 17f–5(a)(1) and (a)(1)(iv). See concerns since the factors that relate to also proposed rule 17f–5(a)(2)(i)–(iii), discussed selection of foreign custodians are a country’s prevailing custodial risks infra notes 80–91 and accompanying text. The would be evaluated in connection with Commission recognizes that, conceptually, the 75 See Custodian Letter II, supra note 14, at 14– 69 decision to use a compulsory depository appears to 15 (discussing these considerations). a custodian’s selection. fall within the scope of the rule’s provisions 76 See ICI Letter III, supra note 14, at 10 governing the selection of foreign custodians b. Compulsory Depositories (recommending that evaluations of compulsory (discussed in the text below). The Commission also depositories be part of the custodian selection recognizes that a significant number of foreign Certain countries have depositories process); Custodian Letter I, supra note 14, at 4–5, depositories may be considered compulsory 6–7 (consistent with proposed approach). the use of which is unavoidable for the depositories. Consequently, requiring compulsory 77 custody of foreign securities purchased depositories to be evaluated in connection with a Any custodian selected by the delegate would by a fund (a ‘‘compulsory depository’’). country’s prevailing custodial risks could mean that have to be an ‘‘eligible foreign custodian’’ as defined in proposed rule 17f–5(d)(3). See ‘‘Eligible Because the custody of fund assets in a the majority of depository decisions will not be made by the delegate selecting the fund’s other Foreign Custodians’’ below. foreign country may necessitate using foreign custodians. 78 Proposed rule 17f–5(a)(2). See also ICI Letter III, any compulsory depository in the 72 Proposed rule 17f–5(d)(4). See also proposed supra note 14, at 5 (Exhibit A); Custodian Letter I, country, the amended rule would make rule 17f–2(d)(3)(iv) (defining an eligible foreign supra note 14, at 7 (Exhibit A) (recommending that custodian to include a compulsory depository). The U.S. bank delegates be required to represent to the board that a foreign custodian’s internal controls or 63 ICI Letter III, supra note 14, at 3–7, 10. As proposed definition should be construed narrowly. If maintaining assets in a depository or with a established procedures are adequate to provide discussed in the text above, the amended rule reasonable protection for fund assets). would not address political and foreign exchange foreign bank custodian are feasible alternatives, the The proposed approach would be consistent with considerations. Commission believes the decision to use a depository should be made in connection with the that governing country-wide custodial risks 64 ICI Letter III, supra note 14, at 6–7, 10. custodian selection process. See ‘‘Selecting Foreign evaluations. Like the current rule, the proposed 65 Id. at 3–8 (commenting on the Custodian Custodians’’ below. finding of reasonable protection would have to be Group’s recommendations). See supra 49 and 55 73 See ICI Letter III, supra note 14, at 10 (Exhibit made prior to placing the fund’s assets with the notes and accompanying text (regarding the A); Custodian Letter I, supra note 14, at 13 (Exhibit foreign custodian. approach of the amended rule). A) (suggesting that a depository should be 79 Proposed rule 17f–5(a)(2). See ‘‘Custody in 66 Custodian Letter I, supra note 14, at 3–7. considered to be compulsory if securities held Foreign Countries’’ above. 67 Id. at 7. outside the depository cannot be traded or 80 Proposed rule 17f–5(a)(2) (i) through (iii). As 68 Id. transferred in accordance with routine clearance indicated in the text accompanying note 71 supra, 69 This approach, however, may have potential and settlement practices). proposed rule 17f–5(a)(1) would require delegates drawbacks in connection with boards selecting 74 When different delegates evaluate country-wide that evaluate the protection afforded fund assets different delegates to evaluate different aspects of and foreign custodian risks and disagree on whether held by a compulsory depository to consider the the fund’s arrangements. See supra note 35 and using a depository is compulsory, the depository’s factors set forth in rule 17f–5(a)(2) (i) through (iii) infra note 70 and accompanying text. status may have to be determined by the board. governing the selection of foreign custodians. 39598 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules derived from the Notes to the current would not be addressed under the process in the United States or rule.81 amended rule, the delegate may consented to U.S. jurisdiction.91 The Notes to rule 17f–5 address a appropriately consider custodial The Commission requests comment foreign custodian’s financial strength, efficiency and costs in selecting a on the proposed approach and the its general reputation and standing in foreign custodian. factors that delegates would be required the country, and its ability to provide The Notes to rule 17f–5 also state that to consider in selecting foreign efficiently the custodial services the fund’s board should consider custodians. required and the relative costs of those whether a foreign custodian will 4. Foreign Custody Contracts services.82 provide a level of safeguards not In addition to a custodian’s financial materially different from those of the a. Proposed Approach strength,83 the amended rule would 86 fund’s U.S. custodian. The Rule 17f–5 currently requires the address a custodian’s reputation and Commission believes that foreign standing generally, rather than in the fund’s foreign custody arrangements to custodian arrangements, although be governed by a written contract that country where the custodian is different from U.S. arrangements, 92 located.84 A custodian’s reputation and has been approved by the board. The nonetheless may provide reasonable and current rule also enumerates specific standing outside of its own country may effective safeguards for fund assets.87 be relevant, especially in the case of provisions that must be included in the Accordingly, the amended rule would contract. The contract generally must multi-national banks. By no longer tying focus on whether a foreign custodian consideration of a custodian’s provide that: (A) The fund will be would provide reasonable protection for indemnified and its assets insured in reputation and standing to the country fund assets, and would specifically where the custodian is located, the the event of loss; (B) the fund’s assets require the delegate to consider the will not be subject to liens or other amended rule seeks to provide delegates custodian’s practices, procedures, and with greater flexibility to evaluate a claims in favor of the foreign custodian internal controls in making this or its creditors; (C) the fund’s assets will custodian’s reputation based on the 88 determination. be freely transferable without the facts and circumstances relevant to the The protections provided by particular custodian. The amended payment of money; (D) records will be custodians within a foreign country may kept identifying the fund’s assets as provision also would require, in the vary widely. Thus, one custodian’s case of a securities depository, belonging to the fund; (E) the fund’s practices and internal controls may independent public accountants will be consideration of the depository’s provide reasonable protections, while operating history and number of given access to those records or 85 those of other custodians may not. In confirmation of the contents of those participants. addition, although the rule would not In addition, the amended provision records; and (F) the fund will receive require parity between foreign and U.S. would no longer address a custodian’s periodic reports, including notification custodian arrangements, reference to efficiency and relative costs. Weighing a of any transfers to or from the fund’s U.S. standards may be relevant in 93 custodian’s efficiency against the costs account. determining whether a foreign of its services does not appear to be The amended rule would retain the custodian’s practices and internal particularly germane to the safety of requirement of a written foreign custody controls will reasonably protect fund fund assets in the hands of that contract, but would not enumerate assets. custodian. Although these matters specific provisions that must be Finally, the amended rule would included in the contract.94 In proposing 81 See rule 17f–5, Notes 2(a)–(d). require the delegate to assess the this approach, the Commission does not 82 Rule 17f–5, Note 2(a). likelihood of U.S. jurisdiction over and intend to imply that the contract 83 In evaluating a custodian’s financial strength, enforcement of judgments against a provisions required under the current 89 the delegate, for example, may consider foreign custodian. The proposed rule are not important. Rather, the capitalization, financial history, and any other lines requirement would broaden the Notes to of business undertaken by the custodian and the Commission believes that funds should potential effects of such businesses on the the current rule, which address whether be able to establish contractual custodian’s financial condition and operations. a foreign custodian has any branch arrangements that reflect the particular 90 84 Proposed rule 17f–5(a)(2)(i). offices in the United States. Under the circumstances presented. Contract 85 These matters currently are addressed as a proposed approach, in addition to provisions other than those currently separate Note under rule 17f–5. Rule 17f–5, Note considering domestic branches, the 2(d). Although certain matters (i.e., operating required may be important in any given history and number of participants) would delegate could take into account other foreign market or for a specific foreign specifically apply to depositories, all of the factors jurisdictional and enforcement means, custodian. In addition, certain practical set forth in proposed rule 17f–5(a)(2) (i) through (iii) such as whether a foreign custodian has problems and interpretive questions would have to be considered when selecting foreign appointed an agent for service of depositories. have arisen regarding the current 95 The Custodian Group indicated that information contract requirements. As custody 86 Rule 17f–5, Note 2(b). concerning certain depositories may be difficult or 87 practices change, similar issues may impossible to obtain. The ICI and the Custodian See Custodian Letter II, supra note 14, at 3–6. Group recommended that the rule address this 88 Proposed rule 17f–5(a)(2)(ii). See ICI Letter III, 91 problem by requiring consideration of a supra note 14, at 2 (Exhibit A); Custodian Letter I, The Commission recognizes that U.S. depository’s operating history if such information is supra note 14, at 9–11 and at 4 (Exhibit A) jurisdiction may not be obtainable over certain ‘‘reasonably obtainable.’’ ICI Letter III, supra note (recommending that the rule focus on the foreign depositories. As with the other factors under 14, at 2–3 (Exhibit A); Custodian Letter I, supra note protections provided by foreign custodians rather the amended rule, an affirmative finding of U.S. 14, at 14–16 and at 4 (Exhibit A). than the equivalency of those protections to U.S. jurisdiction would not be required. Rather, the absence of U.S. jurisdiction would have to be The extent (or absence) of information about a standards). considered in making the overall determination that foreign depository may be relevant in determining When different delegates evaluate country-wide using the custodian will provide reasonable whether the depository will provide reasonable and foreign custodian risks, the delegates may come protection for fund assets. protection for fund assets. For example, the lack of to different determinations, which are attributable 92 available information about a depository’s operating to the different assessments involved. See text Rule 17f–5(a)(1)(iii). history may militate against the depository’s use. accompanying note 55 supra (regarding evaluations 93 Rule 17f–5(a)(1)(iii)(A)–(F). Consequently, the amended rule would not make an of a country’s prevailing custodial risks). 94 Proposed rule 17f–5(a)(3). exception when information about a depository is 89 Proposed rule 17f–5(a)(2)(iii). 95 See ‘‘Request for Comment on Specific Contract not available. 90 See rule 17f–5, Note 2(c). Provisions’’ below. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39599 arise in the future that could delay or Depository services typically are custodial arrangements involving preclude certain arrangements. provided through foreign banks that foreign banks.104 The Commission The amended rule would require a have an established relationship with requests specific comment whether this finding that the foreign custody contract the depository.100 The amended rule, is the case. will provide reasonable protection for like the current rule, would not require The ICI and the Custodian Group the fund’s assets based on all factors foreign depositories to be parties to the recommended modifying the current relevant to the safekeeping of such fund’s foreign custody contract.101 requirement prohibiting liens on the assets. Determining whether a contract Instead, the delegate should consider fund’s assets.105 The ICI and the provides such protection typically the responsibilities of the bank Custodian Group indicated that this would involve consideration of the custodian interacting with the requirement should not apply to cash, contract provisions required under the depository, along with the rights of the since, in most jurisdictions, cash may current rule as well as those customarily fund in relation to both the intermediary become subject to creditors’ claims if a provided by U.S. custodians and other custodian and depository. custodian becomes bankrupt.106 foreign custodians operating in the The Commission requests comment The ICI and the Custodian Group also country.96 on the proposed approach. The recommended modifying the current In addition, the Commission Commission requests specific comment recordkeeping requirement to understands that funds often contract whether the amended rule should specifically recognize the permissibility with their primary custodians for require specific contract provisions. In of ‘‘omnibus accounts.’’ 107 These foreign custody services; the primary particular, would the proposed accounts contain the assets of more than custodian, in turn, enters into separate approach facilitate the use of foreign one custodial customer, and are contracts with the fund’s foreign bank custody arrangements or create established by intermediary custodians custodians. When the fund’s contractual difficulties in obtaining important with foreign banks and securities relationship with a foreign custodian is contractual protections from foreign depositories.108 In an omnibus account indirect, the delegate should consider custodians? For example, codifying structure, the intermediary, which is the fund’s rights vis-a-vis both the specific contract requirements may offer reflected on the foreign custodian’s contracting intermediary custodian and certain advantages to fund shareholders books as the record owner of the assets, the foreign custodian that holds the by removing these protections from the is responsible for maintaining records fund’s assets. The delegate, for example, items that could be subject to that identify each of its customer’s should consider whether the negotiation. The Commission also assets.109 intermediary custodian has agreed in its requests comment whether the amended The ICI and the Custodian Group contract with the fund to obtain rule should include specific factors disagreed on how the rule should indemnification or other contractual (such as those discussed above) that address indemnification and protections from the foreign custodian. delegates would have to consider in insurance.110 The ICI recommended The delegate also should consider, evaluating the protections provided by a 102 among other things, whether the fund contract. 104 See Custodian Letter I, supra note 14, at 11 would be able to assert claims directly b. Request for Comment on Specific 105 ICI Letter III, supra note 14, at 12; Custodian Letter I, supra note 14, at 21–22. See rule 17f– against the foreign custodian in the Contract Provisions event of loss.97 5(a)(1)(iii)(B). The Commission also understands The ICI and the Custodian Group 106 ICI Letter III, supra note 14, at 12; Custodian recommended retaining the rule’s Letter I, supra note 14, at 21–22. that depository arrangements typically 107 ICI Letter III, supra note 14, at 3–4 (Exhibit A); are not governed by contract.98 In current contract requirements, with Custodian Letter I, supra note 14, at 22–23. See rule addition, a foreign depository’s services certain modifications.103 The 17f–5(a)(1)(iii)(D). often are not provided directly to the Commission requests comment on the 108 Custodian Letter I, supra note 14, at 22–23. fund or its primary custodian.99 current provisions and the related The ICI and the Custodian Group also recommendations of the ICI and the recommended specifically recognizing the role of U.S. intermediary custodians in connection with 96 The proposed approach would not require a Custodian Group. In addition, the the current provisions relating to indemnification finding that the foreign custody contract provides Custodian Group indicated that the and insurance, access to the foreign custodian’s protections equivalent to U.S. safeguards or that the rule’s current contract requirements books, and periodic reporting. ICI Letter III, supra contract addresses every possible contingency for have become industry standards for note , at 3–4 (Exhibit A); Custodian Letter III, supra loss of the fund’s assets. Rather, the amended rule note 14, at 5–6 (Exhibit A). This approach may help would focus on whether the contract would provide clarify the rule’s requirements, although it does not reasonable protection for the fund’s assets. 100 Id. (indicating that, from the fund’s appear to be necessary. 97 See, e.g., Citibank, N.A., Investment Company perspective, a depository typically will be a 109 Although the recommended change may help Act Release Nos. 18710 (May 15, 1992), 57 FR custodian for a foreign bank custodian, which is clarify the rule’s requirements, it is not necessary. 21835 (Notice of Application) and 18782 (June 12, itself a subcustodian of the fund’s U.S. custodian). The current rule does not prescribe a specific 1992), 51 SEC Docket 1533 (Order) (contract See also Custodian Letter II, supra note 14, at 6– manner for keeping custody records. See also State between the intermediary U.S. custodian and the 8. Street Bank and Trust Company (pub. avail. Feb. 28, foreign custodian gives the fund the right to enforce 101 See Investment Company Institute 2–3 (pub. 1995) (regarding the permissibility of omnibus the agreement directly against the foreign avail. Nov. 4, 1987) (hereinafter 1987 Division accounts). custodian). Letter). 110 By its terms, rule 17f–5 requires foreign 98 See Custodian Letter II, supra note 14, at 6–8. 102 Including specific factors does not appear to be custody contracts to provide that the fund will be The ICI and the Custodian Group recommended necessary since the Commission understands that indemnified and its assets insured in the event of that any required contract provisions should not foreign custody contracts incorporating important loss. Rule 17f–5(a)(1)(iii)(A). Consistent with a prior apply to depositories. ICI Letter III, supra note 14, contractual protections are a matter of standard Division no-action position, the ICI and the at 3–5 (Exhibit A); Custodian Letter I, supra note industry practice. See, e.g., Custodian Letter I, Custodian Group recommended requiring either 14, at 11–12. The ICI and the Custodian Group discussed infra note 103. indemnification or insurance. ICI Letter III, supra recommended requiring the rules or established 103 ICI Letter I, supra note 14, at 5 (indicating that note 14, at 5 (Exhibit A); Custodian Letter III, supra practices of a depository to provide specific it is appropriate for the rule to require certain note 14, at 4 (Exhibit B). See also 1987 Division safeguards relating to the free transferability of the essential contract provisions); Custodian Letter I, Letter, supra note 101, at 2–3. The ICI and the fund’s assets, the keeping of adequate records, and supra note 14, at 11. The ICI and the Custodian Custodian Group also recommended requiring fund periodic reporting and notification of asset Group recommended that the contract requirements assets to be protected for losses resulting from a transfers. ICI Letter III, supra note 14, at 3–5 apply only to foreign bank custodians. See supra foreign custodian’s failure to use reasonable care. (Exhibit A); Custodian Letter I, supra note 14, at 12. note (regarding the ICI and the Custodian Group’s ICI Letter III, supra note 14, at 5 (Exhibit A); 99 See Custodian Letter I, supra note 14, at 11–12. recommendations for depository arrangements). Continued 39600 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules that, instead of requiring changes.116 Determining appropriate alternative or in addition to providing a indemnification or insurance as a monitoring procedures would depend specific grace period, the rule should contract provision, the rule require the on the facts and circumstances require the use of interim arrangements, fund’s U.S. custodian (acting as the involved. For example, custodial such as insurance or third-party delegate responsible for the foreign practices in certain countries or used by indemnification agreements, to protect custody contract) to represent that the certain custodians may require frequent against possible loss of fund assets until fund’s overall contractual arrangements monitoring, while other arrangements alternative arrangements can be made. require significantly less oversight.117 provide indemnification or insurance C. Eligible Foreign Custodians protections.111 The ICI indicated that, If an arrangement no longer meets the under its approach, indemnification or requirements of the amended rule, the 1. Banks and Trust Companies insurance protections could appear fund would have to withdraw its assets a. Proposed Approach either in the fund’s contract with its from the country or custodian as soon U.S. custodian or in the contract as reasonably practicable. The current The amended rule would define an between the U.S. custodian and the rule requires a fund in these ‘‘eligible foreign custodian’’ as foreign foreign custodian.112 The Custodian circumstances to withdraw its assets banks and trust companies that are from a foreign custodian as soon as subject to foreign bank or trust company Group objected to the ICI’s approach, 120 arguing that it would make custodian reasonably practical, but specifies that, regulation. An eligible foreign delegates responsible for indemnifying in any event, assets withdrawals must custodian also would include majority- 118 owned foreign subsidiaries of a or insuring depository arrangements.113 be made within 180 days. The amended rule would eliminate the 180 qualified U.S. bank or a U.S. bank 5. Monitoring Custody Arrangements day provision and focus instead on the holding company.121 The amended rule and Withdrawing Assets From importance of taking prompt action would not subject foreign bank and trust Custodians based on the circumstances presented. custodians to specific capital For example, a fund that invests its requirements.122 The amended rule, The amended rule would require the assets primarily in a single country may however, would prohibit foreign bank delegate to monitor the continuing require more time to withdraw those and trust custodians from being appropriateness of the custody of the assets than a fund that has placed only affiliated persons of the fund or fund’s assets in a country, with a 123 a small percentage of its assets with a affiliated persons of such persons. particular custodian, and under the Rule 17f–5 currently limits the class 114 particular custodian or in a particular foreign custody contract. This country. of eligible fund custodians to foreign requirement seeks to address the The Commission requests comment banks and trust companies that have possibility that the fund’s arrangements, on the proposed monitoring more than $200 million in shareholders’ although consistent with the amended requirement. The Commission requests equity and majority-owned foreign rule’s requirements when initially specific comment whether the amended subsidiaries of qualified U.S. banks or entered into, may later fail to provide rule should require asset withdrawals to bank-holding companies that have more 115 reasonable protection for fund assets. be effected within a specific time than $100 million in shareholders’ The proposed monitoring requirement period.119 Commenters favoring this equity.124 Although this approach seeks would involve establishing a means of approach should indicate what the time to protect against the risk of loss from receiving sufficient and timely period should be and whether a period a custodian’s insolvency,125 the information to respond to material of less than 180 days (e.g., 90 days) shareholders’ equity requirement has would be appropriate. The Commission become an inflexible standard that does Custodian Letter III, supra note 14, at 4 (Exhibit B). also requests comment whether, as an not address matters, such as credit and See 1987 Division Letter, supra note 14, at 2–3 market risks, that may affect an (indicating that the rule requires indemnification or 116 institution’s financial health.126 insurance to cover foreseeable risks of loss). See 1984 Reproposing Release, supra note 8, at 2910 (consistent with the proposed approach). 111 ICI Letter I, supra note 14, at 5 (noting that See also 1987 Division Letter, supra note 101, at 4 120 indemnification provisions often are included in Proposed rule 17f–5(d)(3)(i). n.5 (indicating that, under the current rule, the the fund’s contract with its U.S. custodian); ICI 121 A ‘‘qualified U.S. bank’’ would be defined in board generally may rely on the fund’s U.S. Letter III, supra note 14, at 12 and at 4 (Exhibit A). proposed rule 17f–5(d)(5). Under current rule 17f– custodian or another third-party expert to oversee 112 5, the definition of a qualified U.S. bank mirrors the ICI Letter III, supra note 14, at 12. This the fund’s arrangements so long as the expert agrees definition of ‘‘bank’’ in section 2(a)(5), except that approach currently is permitted under rule 17f–5, to notify the board of any material changes, and that it requires certain banks and trust companies that which does not specify the party that must provide the board is not required to review periodic reports receive deposits or exercise fiduciary powers and indemnification and insurance protections. See rule in the absence of a material change). that are subject to state or federal regulation to be 17f–5(a)(1)(iii)(A). 117 The ICI and the Custodian Group organized under state or federal law. See 15 U.S.C. 113 Custodian Letter III, supra note 14, at 4. The recommended allowing delegates to satisfy their Custodian Group would not require 2(a)(5)(C) and rule 17f–5(c)(3)(iii). Proposed rule monitoring obligations by periodically, but no less 17f–5(d)(5) would not change this definition. indemnification or insurance with respect to frequently than annually, reviewing a foreign 122 The Commission previously considered using depository arrangements. Id. See also Custodian custodian’s financial position and internal controls. this approach. See 1982 Proposing Release, supra Letter II, supra note 14, at 6–7 (indicating that ICI Letter III, supra note 14, at 6 (Exhibit A); depositories often establish compensation funds for Custodian Letter I, supra note 14, at 17 (also note 3, at 16347. losses attributable to the depository). indicating that, in a formal sense, the board or a 123 See section 2(a)(3), 15 U.S.C. 80a–2(a)(3) 114 Proposed rule 17f–5(a)(4). See rule 17f–5(a)(2) custodian delegate could not be expected to (defining affiliated person). (requiring a system to monitor the fund’s monitor continuously a foreign custodian’s 124 Rule 17f–5(c)(2) (i) and (ii). arrangements to ensure compliance with the financial position and internal controls). 125 See John Downes & Jordan Elliot Goodman, conditions of the rule). 118 Rule 17f–5(a)(4). See generally 1985 Release Dictionary of Finance and Investment Terms 377 115 The amended rule seeks to clarify the scope of Proposing Amendments, supra note 8, at 24541 (2d ed. 1987) (defining shareholders’ equity as total the monitoring requirement by tying monitoring (proposing a 90-day grace period); 1985 Release assets minus total liabilities of a corporation). Cf. obligations to the reasonable protection findings Adopting Amendments, supra note 8, at 37655 1984 Reproposing Release, supra note 8, at 2907 required to be made in establishing foreign custody (adopting a 180-day grace period to provide (indicating that the rule’s capital requirements seek arrangements. See ICI Letter III, supra note 14, at sufficient time for funds to negotiate alternative to address disparities in the protections provided by 6 (Exhibit A); Custodian Letter I, supra note 14, at arrangements). various foreign regulatory systems). 17 (recommending that monitoring responsibilities 119 See ICI Letter III, supra note 14, at 6 (Exhibit 126 The shareholders’ equity requirement has been relate to specific representations that would have to A); Custodian Letter I, supra note 14, at 8 (Exhibit the subject of several no-action letters and a number be made when custody arrangements are entered A) (incorporating the 180-day grace period of the of exemptive orders. See infra notes 128, 142, and into). current rule). 144 and accompanying text. Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39601 Shareholders’ equity also does not example, the ICI and the Custodian rule applicable to funds that retain provide a uniform assessment of Group recommended lowering the custody of their own assets, has been financial strength, since it may be current $100 million and $200 million applied to affiliated custody calculated differently depending both standards to expand the class of eligible arrangements.138 on the country where the institution is foreign custodians in emerging and The Commission is aware of only one organized and the institution’s smaller markets.133 In particular, they existing affiliated foreign custody accounting practices.127 recommended that a custodian with arrangement, and believes that other In addition, the shareholders’ equity more than $25 million in shareholders’ such arrangements may be best requirement may limit unnecessarily the equity should be eligible to hold fund addressed on a case-by-case basis.139 class of eligible foreign custodians. assets, if it is one of the five largest The Commission recognizes, however, Certain highly capitalized custodians, banks in the country.134 The Custodian that affiliated arrangements may become such as national banks that maintain Group indicated that this approach more prevalent as global investing and substantial government-funded reserves should not present significant risks, custodian networks continue to grow to satisfy their liabilities, do not have given the limited amount of assets likely and as the fund industry continues to shareholders’ equity.128 In addition, in to be maintained in smaller markets and consolidate.140 The Commission, certain emerging and smaller markets, the other protections of the rule.135 therefore, requests comment whether very few or no foreign custodians have The Commission also requests the proposed prohibition would be sufficient shareholders’ equity to meet comment whether any additional unduly restrictive and whether the the $100 million and $200 million entities, such as foreign broker-dealers, prohibition should apply only to certain standards.129 should be permitted to serve as affiliated arrangements, such as when In proposing to eliminate specific custodians.136 Commenters addressing there is a control relationship between capital requirements, the Commission this issue should consider the the fund’s adviser and a foreign does not intend to imply that a circumstances under which additional custodian.141 The Commission also custodian’s financial strength is not types of entities should be permitted to requests comment whether there are important to the custodian’s ability to hold fund assets. For example, should alternative safeguards that would serve a fund.130 The amended rule these entities be subject to capital or address the investor protection concerns 137 would require the board’s delegate to other special requirements? raised by these arrangements. For determine that foreign custodians will Finally, the Commission requests example, should fund boards establish provide reasonable protection for the comment on prohibiting affiliated and oversee affiliated arrangements fund’s assets based on, among other foreign custody arrangements. Custody without the discretion to delegate this things, a custodian’s financial by fund affiliates raises special investor responsibility? protection concerns. To guard against strength.131 This approach should potential abuses resulting from control b. Other Alternatives Considered sufficiently address the adequacy of a over fund assets by related persons, rule The Commission considered several custodian’s capital, without imposing 17f–2 under the Act, the Commission other approaches to defining an eligible specific capital requirements. foreign custodian. These alternatives The Commission requests comment shareholders’ equity requirement ‘‘has served the could be used in lieu of the current on the proposed approach. The Custodian community well in major, established shareholders’ equity requirement or in Commission requests specific comment markets’’). conjunction with reduced capital whether the current shareholders’ 133 ICI Letter III, supra note 14, at 7 (Exhibit A); standards. The Commission requests equity requirement should be retained, Custodian Letter I, supra note 14, at 18–19. See also comment on each approach. with higher or lower standards.132 For ‘‘Other Alternatives Considered’’ below (regarding the ICI’s and the Custodian Group’s other The Commission considered using an recommendations). approach that would focus on a bank or 127 The Commission previously sought to address 134 ICI Letter III, supra note 14, at 7 (Exhibit A); trust company’s safekeeping abilities.142 this problem by proposing that shareholders’ equity Custodian Letter I, supra note 14, at 18–19. See also be calculated according to generally accepted 1984 Adopting Release, supra note 8, at 36082 accounting principles. 1985 Release Proposing (rejecting the use of foreign bank custodians that 138 See, e.g., Pegasus Income and Capital Fund, Amendments, supra note 8. The Commission constitute one of the five largest banks in a country Inc. (pub. avail. Dec. 1, 1977) (custody by U.S. decided to postpone final action on this proposal when no bank in that country meets the adviser-bank). Rule 17f–2 appears to be unworkable due to concerns that compliance costs would be shareholders’ equity requirement). in the foreign custody context because the rule excessive. 1985 Release Adopting Amendments, 135 Custodian Letter I, supra note 14, at n.12. The requires, among other things, fund assets to be supra note 8. Custodian Group also noted that smaller banks maintained in a bank that is subject to state or 128 See 1984 Adopting Release, supra note 8, at would not become eligible custodians in larger federal regulation; the fund’s assets also must be 36082. Custodians organized as private banks also markets, since they would not be one of the five subject to Commission inspection and verified by may not have shareholders’ equity. No-action largest banks in the country. Id. at 19. an independent public accountant. Rule 17f–2(b), (d), and (e). See 1984 Reproposing Release, supra letters, however, have found the capital of certain 136 When a foreign entity acts as both a bank and note 8, at 2907–08. private banks to be the equivalent of shareholders’ broker-dealer, it would meet the definition of an equity. See Pictet & Cie (pub. avail. Sept. 8, 1993) eligible foreign custodian if the division or part of The Division currently is reviewing rule 17f–2, (private bank with partners’ equity); Union Bank of the entity that has custody of fund assets is and may recommend in the future that the Norway (pub. avail. Nov. 30, 1992) (private bank regulated under foreign law as a banking Commission propose certain changes in the rule’s found to have the equivalent of paid-in capital and institution. See generally 1984 Reproposing requirements. retained earnings). Release, supra note 8, at 2907–08 (not allowing 139 Dean Witter World Wide Investment Trust 129 See Custodian Letter I, supra note 14, at 18– foreign broker-dealers to serve as custodians since (pub. avail. Mar. 14, 1988) (affiliation between the 19. funds had not expressed an interest in these fund’s sub-adviser and primary custodian deemed 130 See generally Sub-custodian Services Survey, arrangements). See also Canada Trustco Mortgage sufficiently remote so as not to require the Euromoney 116 (Jan. 1994) (indicating that U.S. Company (pub. avail. Dec. 29, 1989) (loan company protections of rule 17f–2). custodians view capitalization and credit rating as with wholly-owned trust subsidiary deemed to be 140 See John Waggoner, Urge to Merge Hits Mutual the most significant considerations in selecting an eligible foreign custodian). Funds, USA Today, Feb. 8, 1995, at 1B. See also foreign custodians). 137 Broker-dealers, for example, could be required Timothy L. O’Brien and Steven Lipin, In the Latest 131 See ‘‘Delegation of Board Responsibilities— to be subject to foreign regulatory requirements Round of Banking Mergers, Even Big Institutions Selecting Foreign Custodians’’ above. relating to their financial responsibility and the Become Targets, Wall St. J., July 14, 1995, at A3. 132 See ICI Letter II, supra note 14, at 3 (suggesting segregation and handling of customer securities. 141 See section 2(a)(3)(C) of the Act. that the Commission consider whether the current See, e.g., rule 206(4)–2(b) under the Investment 142 See Permanent Trustee Company Limited, standards are unnecessarily high); Custodian Letter Advisers Act of 1940, 17 CFR 275.206(4)–2(b). See Investment Company Act Release Nos. 17833 (Oct. I, supra note 14, at 18 (indicating that the also rule 17f–1 under the Act. Continued 39602 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules Under this approach, a bank or trust parent custodians and their foreign securities in a country.153 This company would be an eligible foreign subsidiaries.147 requirement seeks to ensure a country’s custodian if it had maintained custody In addition, the ICI recommended that interest in establishing and maintaining of a substantial amount of assets (e.g., the Commission consider using an a depository’s integrity.154 The $500 million) over a specified period of investment grade rating from a Commission believes, however, that the time (e.g., the past five years) and had nationally recognized statistical rating current provision, which has been the not incurred any material loss of agency as a means of determining a subject of a number of no-action 155 custodial assets during that period. foreign bank’s eligibility to serve as a positions, is overly restrictive. With fund custodian.148 The ICI also Commenters addressing this alternative the increased immobilization and recommended that the Commission dematerialization of securities, the should discuss the criteria that should consider using international capital Commission believes that rule 17f–5 be used to establish a custodian’s standards, such as those approved by should not constrain the use of safekeeping abilities and the feasibility the Basle Committee on Banking depository arrangements.156 of monitoring compliance with such Regulations and Supervisory Practices The amended rule would address a 143 criteria. (the ‘‘Basle Accord’’).149 country’s interest in a depository by The ICI and the Custodian Group 2. Non-Compulsory Depositories and requiring the depository to be subject to recommended using an approach based Transnational Systems 150 foreign regulation by the government, an on prior exemptive orders.144 Under this agency thereof, or a self-regulatory alternative, a foreign bank or trust Under the amended rule, an eligible organization. The amended rule also company would not have to satisfy a foreign custodian would include a would require, among other things, securities depository or clearing agency shareholders’ equity requirement if (i) consideration of the depository’s that operates a system for the central the bank or trust company is a operating history and number of handling of securities or equivalent participants and whether the depository subsidiary of the fund’s primary book-entries that is regulated by a custodian; (ii) the primary custodian will provide reasonable protection for ‘‘foreign financial regulatory authority,’’ the fund’s assets.157 This approach meets certain capital requirements; and which would include a foreign (iii) the primary custodian assumes should sufficiently address a government, an agency thereof, or a depository’s custodial integrity, while financial responsibility for the bank or 151 foreign self-regulatory organization. giving funds the flexibility to use a trust custodian’s use.145 The An eligible foreign custodian also would depository that may not operate an Commission requests commenters include a depository or clearing agency exclusive book-entry system. addressing this alternative to consider that operates a transnational system for The Commission requests comment the appropriateness of allowing U.S. the central handling of securities or on the proposed approach. The 152 and foreign banks to serve as both equivalent book-entries. Commission requests specific comment assurance-providers and delegates for Rule 17f–5 currently requires on requiring regulatory oversight of foreign custodian selection.146 The depositories and clearing agencies that depository arrangements and on Commission also requests commenters are not transnational systems to operate permitting such oversight to be to consider whether assurance the only system for the handling of conducted by self-regulatory arrangements should be limited to organizations.158 The Commission also 147 See State Street Bank and Trust Company, Investment Company Act Release Nos. 20519 (Aug. 31, 1990), 55 FR 46749 (Notice of Application) and 31, 1994), 59 FR 46463 (Notice of Application) and 153 Rule 17f–5(c)(2)(iii). 17888 (Nov. 30, 1990), 47 SEC Docket 1627 (Order) 20583 (Sept. 27, 1994), 57 SEC Docket 2091 (Order) 154 See 1984 Reproposing Release, supra note 8, (granting exemptive relief from the shareholders’ (custodian providing assurances was not the foreign at 2908. equity requirement based on the applicant’s custodian’s parent). See also Bank van Haften 155 See, e.g., 1987 Division Letter, supra note 101, established record as a custodian and certain other Labouchere N.V., Investment Company Act Release at 3 (taking a no-action position with respect to factors). Nos. 19073 (Nov. 2, 1992), 57 FR 53531 (Notice of certain groups of depositories that are integrated 143 In some foreign countries, for example, the Application) and 19135 (Dec. 1, 1992), 52 SEC and effectively function as one system within a amount of assets in a custodian’s safekeeping may Docket 2892 (Order) (assurances provided by a country); Custody of B Shares Trading on the be considered proprietary information that would foreign company that was not an eligible foreign Shenzhen and Shanghai Securities Exchanges (pub. not be available to delegates. custodian since it was primarily engaged in the avail. Apr. 26, 1993) (no-action position with 144 See, e.g., Chase Manhattan Bank, Investment insurance business). respect to depositories that operate the central Company Act Release Nos. 18025 (Mar. 4, 1991), 56 148 ICI Letter II, supra 14, at 3. See also Nationally system for a particular issue and class of securities). FR 10451 (Notice of Application) and 18077 (Apr. Recognized Statistical Rating Organizations, See generally Templeton Russia Fund, supra note 2, 1991), 48 SEC Docket 864 (Order). Securities Act Release No. 7085 (Aug. 31, 1994), 59 60 (addressing the unique custodial and settlement 145 ICI Letter III, supra note 14, at 8–10 (Exhibit FR 46314 (requesting comment on the role of arrangements in Russia). See also ICI Letter III, A); Custodian Letter I, supra note 14, at 20 and at ratings generally in the federal securities laws). supra note 14, at 10 (Exhibit A); Custodian Letter 10–12 (Exhibit A) (the primary custodian would 149 ICI Letter II, supra 14, at 3. In general, the I, supra note 14, at 21 and at 12–13 (Exhibit A) have to be either a U.S. bank with more than $100 Basle Accord seeks to establish minimum standards (recommending expanding the class of eligible million in shareholders’ equity or a foreign bank or of capital adequacy for internationally active banks foreign depositories by codifying prior no-action trust company with more than $200 million in through a ratio that measures an institution’s capital positions). shareholder’s equity; in addition, the primary in relation to credit risk. See Basle Committee on 156 Securities are immobilized by storing stock custodian would have to assume responsibility for Banking Regulations and Supervisory Practices, certificates or other indicia of securities ownership any loss arising from the arrangement (including International Convergence of Capital Measurement with the depository. Securities are dematerialized losses attributable to the foreign custodian’s and Capital Standards, Fed. Banking L. Rep. (CCH) by dispensing with physical evidence of securities bankruptcy or insolvency) to the same extent as if ¶ 5403 at 3309 (amended Nov. 6, 1991). ownership. Group of Thirty Report, supra note 20, the primary custodian had itself performed the 150 See also ‘‘Custody in Foreign Countries— at 55–56. See also Custodian Letter I, supra note 14, custody services). See also supra note 24. Compulsory Depositories’’ above. at 14 (indicating that depositories generally are 146 For example, banks serving as both assurance- 151 Proposed rule 17f–5(d)(3)(ii) (using the subject to strict government regulation and provide provider and the board’s delegate may be inclined definition of foreign financial regulatory authority a high level of safety for fund assets). to disregard custodial problems in hopes of in section 3(a)(52) of the Securities Act of 1934 [15 157 See ‘‘Delegation of Board Responsibilities— delaying or avoiding their indemnification U.S.C. 78c(a)(52)). See 1984 Reproposing Release, Selecting Foreign Custodians’’ above. responsibilities. On the other hand, banks serving supra note 8, at 2908 n.31 (noting that securities 158 See 1984 Reproposing Release, supra note 8, in both capacities may be more vigilant in depositories may be denominated clearing agencies at 2908 (not requiring depositories to be regulated establishing and overseeing foreign custody in some countries). by foreign governments or agencies thereof since arrangements, since they would be liable for losses 152 Proposed rule 17f–5(d)(3)(iii). See rule 17f– several principal depositories would not meet the associated with the foreign custodian’s use. 5(c)(iv) (consistent with the proposed approach). requirement). Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39603 requests comment whether jurisdictional concerns, these provisions Alternatively, should the amended transnational depositories should be are more restrictive than those applied rule allow Canadian funds to use foreign required to be subject to similar or other to U.S. funds.166 Rule 17f–5 allows custody arrangements on the same basis requirements.159 Canadian funds to maintain their assets as their U.S. counterparts? 173 only in overseas branches of qualified D. Assets Maintained in Foreign Commenters favoring this alternative U.S. banks.167 The rule also places Custody should consider whether any special responsibility for the fund’s foreign requirements should be imposed to Rule 17f–5 permits funds to use custody arrangements on the fund’s address jurisdictional concerns. For foreign custody arrangements for their board of directors.168 example, should Canadian funds be foreign securities, cash, and cash Canadian investment companies have required to consent to U.S. jurisdiction equivalents.160 Rule 17f–5 defines not sought to register under the Act for or should limits be placed on the foreign securities to include those that some time, and very few Canadian amount of a Canadian fund’s assets that are issued and sold primarily outside funds currently offer their shares in the could be maintained outside the United the United States by foreign and U.S. United States.169 Accordingly, the States? 174 issuers.161 By restricting the types of amended rule would make limited securities that may be maintained changes in the foreign custody F. Disclosure of Custody Risks outside the United States, the rule seeks requirements applicable to Canadian The Notes to rule 17f–5 currently to establish a nexus between its scope funds. The amended rule would revise instruct the fund’s board to consider and its purpose, i.e., to give funds the the current ‘‘best interest’’ standard for disclosing in the fund’s prospectus flexibility to keep abroad assets that are placing fund assets in a particular material risks, if any, associated with purchased or intended to be sold country and require instead a finding the fund’s foreign custody abroad.162 In addition, rule 17f–5 limits that such custody will provide arrangements.175 The amended rule the cash and cash equivalents that funds reasonable protection for the fund’s would not address disclosure issues. may maintain outside the United States assets.170 In addition, the amended rule The Commission believes that these to amounts that are reasonably would eliminate the current issues are more appropriately addressed necessary to effect the fund’s foreign requirement that the board of a by individual funds in considering their securities transactions.163 Canadian fund review and approve disclosure obligations under the The amended rule would not change foreign custody arrangements at least Securities Act of 1933.176 these restrictions, although it would annually. Under the amended rule, the simplify the definition of foreign board instead would be required to G. Unit Investment Trusts securities by eliminating references to monitor the continuing appropriateness Under the Act, unit investment trusts specific types of issuers.164 The of the fund’s arrangements.171 If an (‘‘UITs’’) are required to maintain their Commission requests comment whether arrangement no longer meets the rule’s assets in the custody of U.S. banks or any other changes should be made. In requirements, the fund would be their foreign branches.177 UITs generally particular, should the amended rule required to withdraw its assets from the are not permitted to use the foreign continue to restrict the types of country or custodian as soon as securities and amounts of cash and cash reasonably practicable.172 173 The ICI and the Custodian Group equivalents that may be maintained The Commission requests comment recommended this approach. ICI Letter I, supra note outside the United States? on the proposed approach. The 14, at 4 (also recommending that the foreign custody arrangements of any non-Canadian foreign E. Canadian and Other Foreign Funds Commission requests specific comment funds continue to be evaluated on a case-by-case whether the special provisions basis); Custodian Letter I, supra note 14, at 1 Rule 17f–5 contains special applicable to Canadian funds should be (Exhibit A). provisions governing the foreign eliminated. Under this approach, a 174 In 1991, a South African fund was allowed to custody arrangements of registered Canadian fund’s foreign custody rely on rule 17f–5 as if it were a U.S. fund. ASA Canadian funds.165 To address Limited, Investment Company Release Nos. 17904 arrangements could be considered in (Dec. 17, 1990) 55 FR 52925 (Notice of Application), connection with the fund’s registration and 17945 (Jan. 15, 1991), 47 SEC Docket 1535 159 The Commission understands that there are under the Act. In evaluating proposed (Order). Although the fund’s custody arrangements very few transnational systems, and is not aware of arrangements, the Commission would were not restricted to foreign branches of U.S. any problems associated with the current banks, limits were placed on the amount of the transnational provision. be able to consider any jurisdictional fund’s assets that could be held overseas. Id. 160 Rule 17f–5(a). concerns and the requirements of rule 175 Rule 17f–5, Note 3. 161 Rule 17f–5(c)(1). 17f–5 applicable to U.S. funds in effect 176 See, e.g., Forms N–1A, 17 CFR 239.15A (the 162 See 1984 Reproposing Release, supra note 8, at that time. registration form for open-end funds) and N–2, 17 at 2907. CFR 274.11a–1 (the registration form for closed-end 163 Rule 17f–5(a). funds). Item 4(c) of Form N–1A and item 8.3.a of 166 See 1984 Reproposing Release, supra note 8, 164 Proposed rule 17f–5(a) and (d)(2). Form N–2 require disclosure in the prospectus of at 2906–07; 1984 Adopting Release, supra note 8, 165 the principal risk factors associated with investing See rule 17f–5(b). Section 7(d) of the Act at 36082. prohibits foreign investment companies from in the fund. Item 13(c) of Form N–1A and item 17.3 167 See 1984 Adopting Release, supra note 8, at publicly offering their securities in the United of Form N–2 require disclosure in the Statement of 36082 (indicating that, by restricting custody to Additional Information (‘‘SAI’’) of the risks inherent States unless the Commission issues an order overseas branches of U.S. banks, Canadian funds in certain significant investment policies, such as permitting registration under the Act. 15 U.S.C. may not maintain their assets with Canadian investing in foreign securities. Guide 9 to Form N– 80a–7(d). Rule 7d–1 sets forth conditions governing branches of U.S. banks). applications by Canadian funds that seek 2 instructs funds with more than 10% of their assets 168 See rule 17f–5(b)(1)–(3). Commission orders pursuant to section 7(d). 17 CFR in foreign securities to discuss in the SAI the fund’s 169 270.7d–1. Among other conditions, rule 7d–1 Protecting Investors report, supra note 15, 193 foreign custody arrangements. See generally provides that the assets of Canadian funds are to be n.23 (noting that, in 1992, only three Canadian Templeton Russia Fund, supra note 60 (apprising held in the United States by a U.S. bank, except as funds were active). fund investors of certain custodial risks in Russia). provided under rule 17f–5. Rule 7d–1(b)(8)(v). 170 See ‘‘Standard for Evaluating Foreign Custody 177 A UIT is a type of fund that issues redeemable Although rule 7d–1 by its terms only applies to Arrangements’’ above. securities representing an undivided interest in a Canadian funds, funds organized in other 171 Proposed rule 17f–5(c)(2). portfolio of specified securities. 15 U.S.C. 80a–4(2). jurisdictions generally have agreed to comply with 172 Proposed rule 17f–5(c)(3). See ‘‘Delegation of See Investment Company Act §§ 2(a)(5) (defining its conditions as a prerequisite to receiving a Board Responsibilities—Monitoring Custody bank) and 26(a)(1) (requiring UIT custodians to section 7(d) order. Protecting Investors report, supra Arrangements and Withdrawing Assets from have at least $500,000 in capital, surplus and note 15, at 193 n.23. Custodians’’ above. undivided profits). 39604 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules custodians available to funds under rule be made in establishing these ‘‘Cost/Benefit Analysis’’ section of this 17f–5.178 The foreign custody arrangements. The amended rule would Release also is reflected in the analysis. arrangements of UITs may raise special require findings that foreign custody A copy of the Initial Regulatory concerns, since UITs do not have boards arrangements will provide reasonable Flexibility Analysis may be obtained by of directors to oversee the protection for fund assets. contacting Elizabeth R. Krentzman, arrangements.179 In addition, the amendments would Securities and Exchange Commission, The Commission requests comment allow fund boards to play a role more 450 Fifth Street, NW., Mail Stop 10–6, on the appropriateness of a rule that consistent with their traditional Washington, DC 20549. would expand the foreign custody oversight role in connection with arrangements available to UITs.180 The foreign custody arrangements, by VI. Statutory Authority Commission requests specific comment permitting boards to delegate their The Commission is proposing to on allowing UIT sponsors, custodian responsibility under the rule to evaluate amend rule 17f-5 pursuant to the banks or other parties to establish and foreign custody matters. The authority set forth in sections 6(c) and monitor foreign custody arrangements, amendments also would eliminate the 38(a) of the Investment Company Act of without independent oversight. The current requirement that boards 1940 [15 U.S.C. 6(c), 37(a)]. Commission also requests comment annually approve foreign custody Text of Proposed Rule Amendments whether special protections should arrangements. attend UIT foreign custody The proposed delegation provisions List of subjects in 17 CFR Part 270 arrangements by, for example, requiring may impose certain additional costs Investment companies, Reporting and the sponsor, custodian bank, or other since delegates would be required to recordkeeping requirements, Securities. provide fund boards with written party to assume financial responsibility For the reasons set out in the 181 reports regarding certain aspects of the for a foreign custodian’s use. Finally, preamble, Title 17, Chapter II of the arrangements. These costs, however, are the Commission requests comment Code of Federal Regulations is proposed whether foreign custody arrangements not expected to be significant, and are to be amended as follows: and the procedures for changing those likely to be much less than the costs arrangements should be required to be associated with providing fund boards PART 270ÐRULES AND set forth in UIT trust indentures. with information pertaining to their REGULATIONS, INVESTMENT annual review of foreign custody COMPANY ACT OF 1940 IV. Cost/Benefit Analysis arrangements. In addition, because the The amendments would substantially reports would facilitate a board’s 1. The authority citation for part 270 reduce burdens on fund directors and oversight of the delegate’s performance, continues to read, in part, as follows: provide funds with greater flexibility to any additional costs associated with the Authority: 15 U.S.C. 80a–1 et seq., 80a–37, establish and use foreign custody reports would be outweighed by the 80a–39 unless otherwise noted; arrangements, consistent with the benefits provided to funds and their * * * * * protection of fund assets. To facilitate shareholders. 2. By revising § 270.17f-5 to read as evaluations of foreign custody The amendments also would expand follows: arrangements, the amendments would the class of foreign banks and securities revise the findings that currently must depositories that could serve as fund § 270.17f-5 Custody of investment custodians. Under the amendments, company assets outside the United States. 178 Several exemptive orders permit UITs to foreign custodians would no longer (a) A registered management maintain their assets in certain foreign transnational have to satisfy specific capital standards investment company, incorporated or securities depositories. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Investment Company Act or other objective requirements. The organized under the laws of the United Release Nos. 15739 (May 14, 1987), 52 FR 19006 amended rule instead would require States or of a state, may place and (Notice), and 15813 (June 16, 1987), 38 SEC Docket delegates to select foreign custodians maintain in the care of an Eligible 891 (Order). based on the custodian’s ability to Foreign Custodian the company’s 179 UITs do not have corporate-type management structures. Typically, UITs are created by a sponsor provide reasonable protection for fund Foreign Securities, cash and cash or ‘‘depositor’’ that accumulates a portfolio of assets. While addressing safekeeping equivalents in amounts reasonably securities and deposits them with a U.S. bank or considerations, this approach avoids necessary to effect the company’s ‘‘trustee’’ under the terms of a trust indenture. A imposing inflexible standards that may Foreign Securities transactions, UIT’s portfolio generally is unmanaged; thus, UITs do not have investment advisers. A UIT’s unnecessarily limit the use of foreign provided that: operations are subject to the terms of the trust custodians. In addition, instead of (1) The Foreign Custody Manager indenture, which specifies the ongoing requiring foreign custody contracts to shall have determined that custody of responsibilities of the trustee, the depositor and contain specific provisions (as under the the company’s assets in a particular other third-party service providers. See generally Form N–7 for Registration of UITs Under the current rule), the amendments would country can be maintained in a manner Securities Act of 1933 and Investment Company require these contracts to reasonably that will provide reasonable protection Act of 1940, Securities Act Release No. 33–6580 protect fund assets. for the company’s assets and that (May 14, 1985), 50 FR 21282. custody of the company’s assets with 180 See Letter of Pierre de Saint Phalle, Davis Polk V. Summary of Initial Regulatory any Compulsory Depository in that & Wardwell, to Diane C. Blizzard, Assistant Flexibility Analysis Director, SEC (Mar. 14, 1995) (recommending a rule country will provide reasonable for UIT foreign custody arrangements) (File No. S7– The Commission has prepared an protection for the company’s assets, 23–95). In addition, certain UITs have sought Initial Regulatory Flexibility Analysis in after considering, in each case, all exemptive relief to use foreign custody accordance with 5 U.S.C. 603 regarding arrangements available to management funds. See factors relevant to the safekeeping of United States Trust Company of New York (filed amendments to rule 17f–5. The analysis such assets, including: July 28, 1992); Merrill Lynch, Pierce, Fenner & notes that the amendments are designed (i) The prevailing practices in the Smith, Inc. (filed Oct. 27, 1993) (both seeking to provide funds with greater flexibility country for the custody of the exemptive relief from section 26(a)(2)(D) of the Act). in establishing and using foreign company’s assets; 181 Such financial assurances, for example, could cover the loss of UIT assets attributable to the custody arrangements, consistent with (ii) Whether the country’s laws will foreign custodian’s failure to exercise reasonable the protection of their assets. Cost- affect adversely the safekeeping of the care or bankruptcy or insolvency. benefit information reflected in the company’s assets, such as by restricting: Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules 39605 (A) The access of the company’s paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) not an affiliated person of the company independent public accountants to a of this section, provided that: or an affiliated person of such person; custodian’s books and records; and (1) The board shall have determined (ii) A securities depository or clearing (B) The company’s ability to recover that it is reasonable to rely on the agency that operates a system for the its assets in the event of a custodian’s delegate to perform the delegated central handling of securities or bankruptcy or the loss of assets in a responsibilities; equivalent book-entries in the country custodian’s control; (2) The board shall require the that is regulated by a foreign financial (iii) Whether special arrangements delegate to provide written reports regulatory authority as defined under that mitigate the risks of maintaining the notifying the board of the placement of section 3(a)(52) of the Securities company’s assets in the country would the company’s assets in a country and Exchange Act of 1934 (15 U.S.C. be used; and with a particular custodian (including 78c(a)(52)); (iv) With respect to any Compulsory any Compulsory Depository) and of any (iii) A securities depository or Depository, the factors specified in material change in the company’s paragraph (a)(2) of this section. clearing agency that operates a arrangements, with such reports to be transnational system for the central (2) Subject to the decision to place provided to the board no later than the assets in the country and to use any handling of securities or equivalent next regularly scheduled board meeting book-entries in the country; or Compulsory Depository in that country following such event. under paragraph (a)(1) of this section, (c) Any management investment (iv) A Compulsory Depository. the Foreign Custody Manager shall have company, incorporated or organized (4) Compulsory Depository means an determined that the foreign custodian under the laws of Canada and registered eligible foreign custodian under will provide reasonable protection for under the Act pursuant to the paragraph (d)(2)(ii) of this section, the the company’s assets, after considering conditions of § 270.7d-1, may place and use of which is mandatory: all factors relevant to the safekeeping of maintain its Foreign Securities, cash (i) By law or regulation; such assets, including: and cash equivalents in the care of an (i) The custodian’s financial strength, (ii) Because securities cannot be overseas branch of a Qualified U.S. its general reputation and standing and, withdrawn from the depository; or Bank, provided that: additionally, in the case of a securities (iii) Because maintaining securities (1) Prior to placing any assets with depository, the depository’s operating outside the depository is not consistent such overseas branch, the company’s history and number of participants; with prevailing custodial practices. (ii) The custodian’s practices, board of directors shall have determined that custody of the assets in the (5) Qualified U.S. Bank means an procedures, and internal controls; and entity that has an aggregate of capital, (iii) Whether the company will have particular country will provide reasonable protection for those assets; surplus, and undivided profits of a jurisdiction over and be able to enforce specified minimum amount, which judgments against the custodian, such (2) The company’s board of directors shall have established a system to shall not be less than $500,000, and that as by virtue of the existence of any is: offices of the custodian in the United monitor such foreign custody States or the custodian’s consent to arrangements for their continuing (i) A banking institution organized service of process in the United States. appropriateness under this section and under the laws of the United States; (3) The company’s foreign custody to ensure that the amount of cash and (ii) A member bank of the Federal arrangements shall be governed by a cash equivalents maintained in the care Reserve System; written contract that the Foreign of such overseas branch is limited to an (iii) Any other banking institution or Custody Manager has determined will amount reasonably necessary to effect trust company organized under the laws provide reasonable protection for the the company’s Foreign Securities of any state or of the United States, fund’s assets, after considering all transactions; and whether incorporated or not, doing factors relevant to the safekeeping of (3) If an arrangement no longer meets business under the laws of any state or such assets. the requirements of this section, the of the United States, a substantial (4) The Foreign Custody Manager company shall withdraw its assets from portion of the business of which shall have established a system to the country or such overseas branch, as consists of receiving deposits or monitor the appropriateness of the case may be, as soon as reasonably exercising fiduciary powers similar to maintaining the company’s assets in a practicable. those permitted to national banks under particular country and using any (d) For purposes of this section: the authority of the Comptroller of the Compulsory Depository in that country (1) Foreign Custody Manager means Currency and which is supervised and under paragraph (a)(1) of this section, the company’s board of directors or any examined by State or Federal authority maintaining the company’s assets with person serving as the board’s delegate having supervision over banks, and a particular custodian under paragraph under paragraph (b) of this section. which is not operated for the purpose of (a)(2) of this section, and the contract (2) Foreign Securities mean securities evading the provisions of this section: or issued and sold primarily outside the governing the company’s arrangements (iv) a receiver, conservator, or other United States. under paragraph (a)(3) of this section. If liquidating agent of any institution or (3) Eligible Foreign Custodian means an arrangement no longer meets the firm included in paragraphs (d)(5) (i), an entity that is incorporated or requirements of this section, the (ii), or (iii) of this section. company shall withdraw its assets from organized under the laws of a country the country or foreign custodian, as the other than the United States and that is: (6) Qualified Foreign Bank means a case may be, as soon as reasonably (i) A banking institution or trust banking institution or trust company, practicable. company that is regulated as such by the incorporated or organized under the (b) The company’s board of directors country’s government or an agency laws of a country other than the United may delegate to the company’s thereof or a majority-owned direct or States, that is regulated as such by the investment adviser or officers or to a indirect subsidiary of a Qualified U.S. country’s government or an agency U.S. bank or to a Qualified Foreign Bank Bank or bank-holding company, thereof. the responsibilities set forth in provided that such foreign custodian is Dated: July 27, 1995. 39606 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Proposed Rules By the Commission. Margaret H. McFarland, Deputy Secretary. [FR Doc. 95–18890 Filed 8–1–95; 8:45 am] BILLING CODE 8010±01±P federal register August 2,1995 Wednesday Hazardous Substances;FinalRule 49 CFRParts171and172 Administration Research andSpecialPrograms Transportation Department of Part VI 39607 39608 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: make the required notifications if a I. Background discharge of a hazardous substance Research and Special Programs occurs. In addition to the reporting Administration Section 202 of SARA (Pub. L. 99–499) requirements of the HMR found in amended Section 306(a) of CERCLA §§ 171.15 and 171.16, a discharge of a 49 CFR Parts 171 and 172 (Pub. L. 96–510), 42 U.S.C. 9656(a), by hazardous substance is subject to EPA requiring the Secretary of reporting requirements at 40 CFR 302.6 [Docket No. HM±145K; Amdt Nos. 171±133; Transportation to list and regulate and may be subject to the reporting 172±141] hazardous substances, listed or requirements of the U.S. Coast Guard at designated under Section 101(14) of 33 CFR 153.203. RIN 2137±AC71 CERCLA, 42 U.S.C. 9601(14), as hazardous materials under the Federal II. Regulatory Analyses and Notices Hazardous Substances hazardous materials transportation law In accordance with the (49 U.S.C. 5101–5127). RSPA carries out Administrative Procedure Act, 5 U.S.C. AGENCY: Research and Special Programs the rulemaking responsibilities of the 553(b)(3)(B), RSPA has determined that Administration (RSPA), DOT. Secretary of Transportation under the a notice of proposed rulemaking and an Federal hazardous materials opportunity for public comment and ACTION: Final rule. transportation law. 49 CFR 1.53(b). This review are impracticable and final rule is necessary to comply with 42 unnecessary. SARA mandates that the SUMMARY: In this final rule, RSPA is U.S.C. 9656(a) as amended by Section Department of Transportation list and amending the Hazardous Materials 202 of SARA. regulate, as hazardous materials under Regulations (HMR) by revising the ‘‘List In carrying out that statutory mandate, 49 CFR Parts 171–180, hazardous of Hazardous Substances and Reportable RSPA has no discretion to determine substances designated by EPA under Quantities’’ which appears in an what is or is not a hazardous substance CERCLA. EPA is the sole agency appendix to the Hazardous Materials or the appropriate reportable quantity authorized to designate hazardous Table. This action is necessary to (RQ) for materials designated as substances and their reportable comply with the Superfund hazardous substances. This authority is quantities. Therefore, public comment Amendments and Reauthorization Act vested in EPA. Therefore, under the and review are unnecessary because: (1) (SARA) of 1986, which amended the CERCLA scheme EPA must issue final The public was afforded time to Comprehensive Environmental rules amending the list of CERCLA comment when EPA published its Response, Compensation and Liability hazardous substances, including notice of proposed rulemaking Act of 1980 (CERCLA) to mandate that adjusting RQ’s, before RSPA can amend concerning that agency’s change in the RSPA regulate, under the HMR, all its list of hazardous substances. In the subject RQ’s; and (2) RSPA does not hazardous substances designated by the preamble to the final rule on this subject have the authority to designate Environmental Protection Agency issued under Docket HM–145F (51 FR hazardous substances or determine their (EPA). The intended effect of this action 42174; November 21, 1986), RSPA reportable quantities. is to enable shippers and carriers to included the following statement: identify CERCLA hazardous substances, Executive Order 12866 and DOT thereby enabling them to comply with It is RSPA’s intention to make changes Regulatory Policies and Procedures from time to time to the list of hazardous all applicable HMR requirements and to This final rule is not considered a make the required notifications if a substances or their RQ’s in the Appendix as adjustments are made by EPA. significant regulatory action under discharge of a hazardous substance section 3(f) of Executive Order 12866 occurs. No notice of proposed This document adjusts the ‘‘List of and, therefore, was not reviewed by the rulemaking has preceded this final rule Hazardous Substances and Reportable Office of Management and Budget. The because, in light of RSPA’s lack of Quantities’’ that appears in Appendix A rule is not considered significant under discretion concerning the regulation of to § 172.101, based on a final rule EPA the regulatory policies and procedures hazardous substances under the HMR, published on June 12, 1995 (60 FR of the Department of Transportation (44 RSPA finds that under the 30926) which added 47 hazardous air FR 11034). The economic impact of this Administrative Procedure Act notice pollutants, designated by the 1990 Clean final rule is minimal to the extent that would serve no purpose and thus is Air Act (CAA) Amendments to the list preparation of a regulatory evaluation is unnecessary. of hazardous substances, and adjusted not warranted. the RQ’s for 8 hazardous wastes codes. DATES: This amendment is effective on To keep its ‘‘List of Hazardous Executive Order 12612 February 2, 1996. However, immediate Substances and Reportable Quantities’’ compliance with the regulations as This final rule has been analyzed in consistent with EPA’s list of CERCLA amended herein is authorized. accordance with the principles and hazardous substances and reportable criteria contained in Executive Order FOR FURTHER INFORMATION CONTACT: John quantities, RSPA is amending the HMR 12612 (‘‘Federalism’’). Federal law A. Gale (202) 366–8553, Office of in accordance with EPA’s final rule. In expressly preempts State, local, and Hazardous Materials Standards, or addition, RSPA is making one non- Indian tribe requirements applicable to George Cushmac (202) 366–4545, Office substantive editorial change to the the transportation of hazardous of Hazardous Materials Technology, definition of ‘‘Hazardous substance’’ in materials that cover certain covered RSPA, 400 7th Street, SW, Washington, § 171.8 by identifying completely the subjects and are substantially the same DC 20590. Questions about hazardous petroleum exclusion for hazardous as the Federal requirements. 49 U.S.C. substance designations or reportable substances as defined in 40 CFR 300.5. 5125(b)(1). These subjects are: quantities should be directed to the This rulemaking will enable shippers (i) The designation, description, and Environmental Protection Agency and carriers to identify CERCLA classification of hazardous materials; (EPA). Call the RCRA/Superfund hotline hazardous substances and thereby (ii) The packing, repacking, handling, at (800) 424–9346 or, in Washington, enable them to comply with all labeling, marking, and placarding of DC, (202) 382–3000. applicable HMR requirements and to hazardous materials; Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39609 (iii) The preparation, execution, and Paperwork Reduction Act 2. In § 171.8, in the definition of use of shipping documents pertaining to There are no new information ‘‘Hazardous substance’’, the concluding hazardous materials and requirements collection requirements in this final text following the table is revised to respecting the number, content, and rule. read as follows: placement of such documents; (iv) The written notification, Regulation Identifier Number (RIN) § 171.8 Definitions and abbreviations. recording, and reporting of the A regulation identifier number (RIN) * * * * * unintentional release in transportation is assigned to each regulatory action Hazardous substance *** of hazardous materials; or listed in the Unified Agenda of Federal (v) The design, manufacturing, Regulations. The Regulatory Information The term does not include petroleum, fabrication, marking, maintenance, Service Center publishes the Unified including crude oil or any fraction reconditioning, repairing, or testing of a Agenda in April and October of each thereof which is not otherwise package or container which is year. The RIN number contained in the specifically listed or designated as a represented, marked, certified, or sold heading of this document can be used hazardous substance in Appendix A to as qualified for use in the transportation to cross-reference this action with the § 172.101 of this subchapter, and the of hazardous materials. Unified Agenda. term does not include natural gas, This final rule concerns the natural gas liquids, liquefied natural List of Subjects designation of hazardous materials. This gas, or synthetic gas usable for fuel (or final rule preempts State, local, or 49 CFR Part 171 mixtures of natural gas and such Indian tribe requirements in accordance synthetic gas). with the standards set forth above. Exports, Hazardous materials Section 5125(b)(1) of title 49 U.S.C. transportation, Hazardous waste, * * * * * provides that if DOT issues a regulation Imports, Reporting and recordkeeping concerning any of the covered subjects requirements. PART 172ÐHAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, after November 16, 1990, DOT must 49 CFR Part 172 determine and publish in the Federal HAZARDOUS MATERIALS Register the effective date of Federal Hazardous materials transportation, COMMUNICATIONS, EMERGENCY preemption. That effective date may not Hazardous wastes, Labels, Markings, RESPONSE INFORMATION, AND be earlier than the 90th day following Packaging and containers, Reporting TRAINING REQUIREMENTS the date of issuance of the final rule and and recordkeeping requirements. not later than two years after the date of Issued in Washington, DC on July 25, 1995, 3. The authority citation for Part 172 issuance. RSPA has determined that the under authority delegated in 49 CFR Part 1. continues to read as follows: Ana Sol Gutie´rrez, effective date of Federal preemption for Authority: 49 U.S.C. 5101–5127; 49 CFR these requirements will be February 2, Deputy Administrator, Research and Special 1.53. 1996. This rule is mandated by Programs Administration . CERCLA, and does not have sufficient In consideration of the foregoing, 4. In Appendix A to § 172.101, Table federalism implications to warrant Parts 171 and 172 of Title 49, Code of 1 is amended by removing, revising and preparation of a Federalism Assessment. Federal Regulations, are amended as adding in alphabetical order the Regulatory Flexibility Act follows: following entries to read as follows: I certify that this final rule will not PART 171ÐGENERAL INFORMATION, Appendix A to § 172.101ÐList of have a significant economic impact on REGULATIONS, AND DEFINITIONS Hazardous Substances and Reportable a substantial number of small entities. Quantities This rule applies to shippers and 1. The authority citation for part 171 carriers of hazardous substances, some continues to read as follows: * * * * * of which are small entities; however, the Authority: 49 U.S.C. 5101–5127; 49 CFR economic impact of this rule is minimal. 1.53. TABLE 1.ÐHAZARDOUS SUBSTANCES OTHER THAN RADIONUCLIDES Reportable quantity (RQ) Hazardous substance Synonyms pounds (kilograms) [REMOVE] Benzene, dimethyl ...... Xylene (mixed) ...... 1000 (454) m-Benzene, dimethyl ...... m-Xylene. o-Benzene, dimethyl ...... o-Xylene. p-Benzene, dimethyl ...... p-Xylene. Cresol(s) ...... Cresylic acid ...... 1000 (454) Phenol, methyl-. m-Cresol ...... m-Cresylic acid. o-Cresol ...... o-Cresylic acid. p-Cresol ...... p-Cresylic acid. Cresylic acid ...... Cresols ...... 1000 (454) Phenol, methyl-. m-Cresol ...... m-Cresylic acid. o-Cresol ...... o-Cresylic acid. p-Cresol ...... p-Cresylic acid. Phenol, methyl ...... Cresol(s) ...... 1000 (454) Cresylic acid. 39610 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations TABLE 1.ÐHAZARDOUS SUBSTANCES OTHER THAN RADIONUCLIDESÐContinued Reportable quantity (RQ) Hazardous substance Synonyms pounds (kilograms) m-Cresol ...... m-Cresylic acid. o-Cresol ...... o-Cresylic acid. p-Cresol ...... p-Cresylic acid. Xylene (mixed) ...... Benzene, dimethyl ...... 1000 (454) m-Benzene, dimethyl ...... m-Xylene. o-Benzene, dimethyl ...... o-Xylene. p-Benzene, dimethyl ...... p-Xylene. [REVISE] ******* DDE ...... 4,4'-DDE ...... 5000 (2270) 4,4'-DDE ...... DDE ...... 5000 (2270) D023 o-Cresol ...... 100 (45.4) D024 m-Cresol ...... 100 (45.4) D025 p-Cresol ...... 100 (45.4) D026 Cresol ...... 100 (45.4) F004 ...... 100 (45.4) The following spent non-halogenated solvents and the stillbottoms from the recovery of these solvents: (a) Cresols/Cresylic acid ...... 1000 (454) (b) Nitrobenzene ...... 100 (45.4) K088 ...... 10 (4.54) Spent potliners from primary aluminum reduction. K090 ...... 10 (4.54) Emission control dust or sludge from ferrochromiumsilicon pro- duction K091 ...... 10 (4.54) Emission control dust or sludge from ferrochromium production ******* [ADD] ******* Acetamide ...... 100 (45.4) 4±Aminobiphenyl ...... 1 (0.454) o-Anisidine ...... 100 (45.4) Benzene, dimethyl- ...... Xylene; Xylene (mixed); Xylenes (isomers and mixtures) ...... 100 (45.4) Benzene, m-dimethyl- ...... m-Xylene ...... 1000 (454) Benzene, o-dimethyl- ...... o-Xylene ...... 1000 (454) Benzene, p-dimethyl- ...... p-Xylene ...... 100 (45.4) Biphenyl ...... 100 (45.4) 1,3±Butadiene ...... 10 (4.54) Calcium cyanamide ...... 1000 (454) Caprolactam ...... 5000 (2270) Carbonyl sulfide ...... 100 (45.4) Catechol ...... 100 (45.4) Chloramben ...... 100 (45.4) Chloroacetic acid ...... 100 (45.4) 2±Chloroacetophenone ...... 100 (45.4) Chloroprene ...... 100 (45.4) Cresols (isomers and mixture) ...... Cresylic acid (isomers and mixture) Phenol, methyl- ...... 100 (45.4) m-Cresol ...... m-Cresylic acid ...... 100 (45.4) o-Cresolo ...... -Cresylic acid ...... 100 (45.4) p-Cresol ...... p-Cresylic acid ...... 100 (45.4) Cresylic acid (isomers and mixture) ...... Cresols (isomers and mixture); phenol, methyl- ...... 100 (45.4) m-Cresylic acid ...... m-Cresol ...... 100 (45.4) o-Cresylic acid ...... o-Cresol ...... 100 (45.4) p-Cresylic acid ...... p-Cresol ...... 100 (45.4) Diazomethane ...... 100 (45.4) Dibenzofuran ...... 100 (45.4) Diethanolamine ...... 100 (45.4) N,N-diethylaniline ...... 1000 (454) Diethyl sulfate ...... 10 (4.54) N,N-dimethylaniline ...... 100 (45.4) Dimethylformamide ...... 100 (45.4) 1,2±Epoxybutane ...... 100 (45.4) Ethylene glycol ...... 5000 (2270) Hexamethylene-1,6-diisocyanate ...... 100 (45.4) Hexamethylphosphoramide ...... 1 (0.454) Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39611 TABLE 1.ÐHAZARDOUS SUBSTANCES OTHER THAN RADIONUCLIDESÐContinued Reportable quantity (RQ) Hazardous substance Synonyms pounds (kilograms) Hexane ...... 5000 (2270) Hydroquinone ...... 100 (45.4) MDI ...... Methylene diphenyl diisocyanate ...... 5000 (2270) 4,4'-Methylenedianiline ...... 10 (4.54) Methylene diphenyl diisocyanate ...... MDI ...... 5000 (2270) Methyl tert-butyl ether ...... 1000 (454) 4-nitrobiphenyl ...... 10 (4.54) n-Nitrosomorpholine ...... 1 (0.454) Phenol, methyl- ...... Cresols (isomers and mixture); Cresylic acid (isomers and 100 (45.4) mixture). p-Phenylenedimine ...... 5000 (2270) beta-Propioaldehyde ...... 1000 (454) Propoxur (baygon) ...... 100 (45.4) Styrene oxide ...... 100 (45.4) Titanium tetrachloride ...... 1000 (454) Trifluralin ...... 10 (4.54) 2,2,4±Trimethylpentane ...... 1000 (454) Vinyl bromide ...... 100 (45.4) Xylene ...... Benzene, dimethyl-; Xylene (mixed); Xylenes (isomers and 100 (45.4) mixture). m-Xylene ...... Benzene, m-dimethyl- ...... 1000 (454) o-Xylene ...... Benzene, o-dimethyl- ...... 1000 (454) p-Xylene ...... Benzene, p-dimethyl- ...... 100 (45.4) Xylene (mixed) ...... Benzene, dimethyl-; Xylene; Xylenes (isomers and mixture) .... 100 (45.4) Xylenes (isomers and mixture) ...... Benzene, dimethyl-; Xylene; Xylenes (mixed) ...... 100 (45.4) ******* [FR Doc. 95–18679 Filed 8–1–95; 8:45 am] BILLING CODE 4910±60±P federal register August 2,1995 Wednesday Communications Systems;FinalRule Use ofFederalAviationAdministration 14 CFRPart189 Federal AviationAdministration Transportation Department of Part VII 39613 39614 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Subsequent amendments to part 612 and Notices to Airmen (NOTAM’s) accomplished the following: (1) (Class A messages). The acceptance and Federal Aviation Administration Expanded the service to any station transmission of these messages is services by the Integrated International completed without charge. This 14 CFR Part 189 Aeronautical Network (now AFTN); (2) amendment will not alter that service. [Docket No. 27778; Amendment No. 189± defined the specific messages that In addition to accepting Class A 3] would be accepted free of charge and messages, IFSS’s and those FSS’s those for which fees would be charged; located outside the 48 contiguous States RIN 2120±AE68 (3) established the priority given to two and the District of Columbia, may Use of Federal Aviation Administration categories of messages; and (4) limited accept messages originated by and Communications Systems the Government’s liability in the addressed to aircraft operating agencies, handling of all messages accepted under or their representatives, that directly AGENCY: Federal Aviation these provisions. bear on the efficient and economic Administration (FAA), DOT. Concurrent with the evolution of part conduct of day to day operations. These ACTION: Final rule. 612, similar International Civil Aviation messages (Class B messages) include Organization (ICAO) procedures were such things as new or revised passenger SUMMARY: This action modifies the developed. Beginning in 1951, ICAO or cargo rates and train or hotel Federal Aviation Regulations (FAR) procedures were implemented whereby reservations. The current rule provides relating to the use of FAA each country would: (1) Accept, free of for a fee of 25 cents for each group of communications systems by removing charge, messages that were meant for 10 words. FSS acceptance of these outdated fee provisions and services. ‘‘* * * ensuring safety of air navigation messages is based on the absence of Due to enhanced commercial and regularity of air traffic between adequate non-USA communication communications (i.e., aeronautical fixed stations of the facilities. telecommunications, satellites, etc.) the different States * * *;’’ (2) accept other In recent years additional means of FAA has determined that the need to messages that did not fall in the above communication have been developed, accept messages (and to charge fees for category provided there was an ‘‘* ** including satellites, computer networks, this service) that address such topics as absence of rapid commercial and cellular telephones. Therefore, the lost baggage, hotel reservations, crew telecommunications * * *;’’ and (3) need to use the FAA AFTN system for assignments, and other commercial determine the acceptability of messages. the transmission of Class B messages matters (Class B messages) no longer Communication systems and the air has been greatly reduced. In January, exists. This action does not affect the traffic control system have improved 1988, a communication network called FAA’s transmission of messages relating greatly in the last several decades. National Airspace Data Interchange to flight safety, flight plans, and weather Consequently, users have elected to Network (NADIN) was commissioned in (Class A messages). Also, this rule will transmit Class B messages through the United States. The capability to not alter the current practice of relaying communications systems other than the segregate Class B messages, which messages received from an FAA Flight FAA’s. required payment from the user, was Service Station (FSS) outside of the 48 The FAA has previously considered intentionally omitted from the system contiguous States and the District of the need for, and removal of, part 189 because the need for such a capability Columbia, or received from a foreign of the FAR. In 1981, all FAA Regional is negligible. However, part 189 was not station of the Aeronautical Fixed offices were queried regarding what amended when NADIN was Telecommunications Network (AFTN). operational effect, if any, the complete commissioned; consequently the rule removal of part 189 would have. At that EFFECTIVE DATE: September 18, 1995. still contains outdated provisions for the time, only the Alaska region objected to collection of fees for the transmission of FOR FURTHER INFORMATION CONTACT: this action. The International Flight Class B messages. Ellen E. Crum, Air Traffic Rules Branch, Service Station (IFSS) in Anchorage, Annex 10, an International Civil ATP–230, Airspace-Rules and Alaska, handled a high volume of Class Aviation Organization (ICAO) Aeronautical Information Division, B messages, and the Region felt strongly document, provides guidance to FSS’s Federal Aviation Administration, 800 that complete removal of part 189 for handling the operational aspects of Independence Avenue, SW., would preclude them from continuing international aeronautical Washington, DC 20591, telephone (202) this service. In 1992, the Regions were telecommunications. The FAA relays 267–8783. again queried regarding their positions Class A or B messages that were SUPPLEMENTARY INFORMATION: with respect to the proposed originally accepted for transmission at Background amendment to part 189. All of the an FAA FSS outside of the 48 Regions concurred with this proposal. contiguous States and the District of The predecessor of part 189 (part Since the IFSS in Anchorage, Alaska Columbia that were received from a 612—Aeronautical Fixed was decommissioned in 1984, aircraft foreign station of the AFTN, and that in Communications, published in the that had previously utilized its normal routing would require transit of August 25, 1950, Federal Register) communications services are now using the 48 contiguous States or the District became effective on September 1, 1950. a private communications company; of Columbia in order to reach an Part 612 specified that airlines could therefore, the prior concerns of the overseas address. send certain messages over specific Alaska Region are no longer relevant. Government circuits. The specific Discussion of Comments circuits were established between Current Requirements Interested persons were invited to several Pacific Islands. The United Part 189 stipulates that domestic participate in this rulemaking action by States government made this FSS’s may accept for transmission only submitting written data, views, or communications network available, at messages related to distress and distress arguments. The comment period closed the users expense, to transmit Class B traffic, safety of human life, flight safety on September 7, 1994. The FAA messages since there were few other (including air traffic control messages), received one comment, from the Airline communication systems established. weather, aeronautical administration, Pilots Association, supporting the Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39615 proposal. The FAA specifically Regulatory Policies and Procedures. The Federalism Implications requested comments and information on FAA does not expect the amendment to This action will not have substantial the potential use of this service and on impose a significant cost on society effects on the States, on the relationship any impact from eliminating the (aviation industry, public, or between the national government and acceptance for transmission of Class B government). The rule will not cause the States, or on the distribution of messages. No such comment or any diminution of safety. power and responsibilities among the information was received. This action will delete rule language various levels of government. Therefore, Except for minor editorial changes, that allows the transfer of certain data. in accordance with Executive Order this rule is the same as that proposed in This data includes messages addressing 12612, it is determined that this action the Notice of Proposed Rulemaking topics such as: lost baggage, hotel will not have sufficient federalism published in the Federal Register on reservations, and crew assignments on implications to warrant the preparation June 9, 1994 (59 FR 29934). international or overseas flights (Class B of a Federalism Assessment. The Rule data). At present, only IFSS’s and FSS’s located outside the 48 contiguous States International Civil Aviation Elimination of Acceptance for and the District of Columbia have the Organization and Joint Aviation Transmission of Class B Messages authority and capability to accept such Regulations Currently, only FAA IFSS’s or FSS’s information for transmission. In In keeping with U.S. obligations located outside the 48 contiguous States practice, the FAA has not received under the Convention on International and the District of Columbia may accept requests for this service for several Civil Aviation, it is FAA policy to for transmission Class B messages when years. comply with International Civil adequate commercial communication The FAA queried FSS’s to determine Aviation Organization Standards and systems are not available. These the consequences of this action. The Recommended Practices (SARP) to the facilities have not received any requests responses indicated that this action maximum extent practicable. For this to accept Class B messages for would not affect any air carrier operator. action, the FAA has reviewed the SARP transmission in over 5 years. Adequate private communications of Annex 10. The FAA has determined Communication systems technology facilities are available to transmit Class that this amendment will not present has improved and expanded to include B data and, in the past few years, any differences. private data networks, private line international and overseas carriers have Conclusion services, telegrams, satellite not chosen to avail themselves of the For the reasons discussed in the communications, and cellular FAA service. However, the FAA preamble, the FAA has determined that telephones. Therefore, the need to use recognizes a remote possibility that a this regulation is not a significant FAA communications systems for future potential user of this service regulatory action under Executive Order transmission of Class B messages has would not have the chance to do so. 12866. In addition, the FAA certifies diminished. This rule will not restrict or that this rule will not have a significant deny users from utilizing the FAA International Trade Impact Analysis economic impact, positive or negative, communications systems for relay of This action will have no effect on the on a substantial number of small entities Class B messages when other adequate sale of foreign products or services in under the criteria of the Regulatory communications systems are not the United States. The action also does Flexibility Act. This action is not available. Additionally, this action will not affect the sale of United States considered significant under DOT Order align the regulations with current products or services in foreign 2100.5, Policies and Procedures for practices by eliminating the authority of countries. Hence, all foreign and Simplification, Analysis, and Review of FSS’s to accept for transmission Class B domestic trade will be equally Regulations. messages without adversely affecting unaffected by this rule. the users. List of Subjects in 14 CFR Part 189 Regulatory Flexibility Act Elimination of Charges for Class B Determination Air transportation, Messages Telecommunications. The Regulatory Flexibility Act of 1980 The current rule requires that fees be The Amendment (RFA) ensures that government charged when Class B messages are regulations do not needlessly and In consideration of the foregoing, the accepted for transmission over FAA disproportionately burden small Federal Aviation Administration revises communication systems. However, businesses. The RFA requires the FAA 14 CFR part 189 to read as follows: current communication systems cannot to review each rule that may have ‘‘a segregate those kinds of messages that PART 189ÐUSE OF FEDERAL significant economic impact on a require a charge for transmission. In AVIATION ADMINISTRATION substantial number of small entities.’’ fact, over the last 5 years, there are no COMMUNICATIONS SYSTEM records of fees having been collected for The amendment deletes rule language transmission of Class B messages, nor that allows the transfer of certain data Sec. does the FAA propose to resume this because users have not requested this 189.1 Scope. service for several years. Hence, the rule 189.3 Kinds of messages accepted or practice. This change will remove from relayed. the regulation all references to the will not impose a significant cost on a substantial number of small entities. 189.5 Limitation of liability. collection of fees and align the Authority: 49 U.S.C. 106(g), 40101, 40104, regualtion with current practices. Paperwork Reduction Act 40113, 44502, and 45303; sec. 501, 65 Stat. 290; 31 U.S.C. 9701. Economic Summary In accordance with the Paperwork This rule will be neither a significant Reduction Act of 1980 (Pub. L. 96–511), § 189.1 Scope. regulatory action under Executive Order there are no requirements for This part describes the kinds of 12866 nor a significant rule under the information collection associated with messages that may be transmitted or Department of Transportation this rule. relayed by FAA Flight Service Stations. 39616 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations § 189.3 Kinds of messages accepted or (iii) Other meteorological information (2) Messages originated by and relayed. exchanged between meteorological addressed to aircraft operating agencies (a) Flight Service Stations may accept offices. or their representatives that directly for transmission over FAA (5) Aeronautical administrative bear on the efficient and economic communication systems any messages messages— conduct or day to day operations, if concerning international or overseas (i) Concerning the operation or adequate non-United States aircraft operations described in maintenance of facilities essential to the communications facilities are not paragraphs (a)(1) through (6) of this safety or regulatory of aircraft operation; available and the messages concern— section. In addition, Flight Service (ii) Essential to efficient functioning (i) Matter described in paragraph Stations may relay any message of aeronautical telecommunications; or (b)(1) of this section, but not meeting the described in this section that was (iii) Between civil aviation authorities time limitations described in paragraph originally accepted for transmission at concerning aircraft operation. (b)(1) of this section; an FAA Flight Service Station outside (6) Notices to airmen. (ii) Aircraft parts, equipment, or the 48 contiguous States, or was (b) The following messages may only supplies, air navigation or received from a foreign station of the be relayed through the FAA communications, or essential ground Aeronautical Fixed communications systems: facilities; Telecommunications Network that, in (1) Flight regularity messages— (iii) Train or hotel reservations for normal routing, would require transit of (i) Addressed to the point of intended passengers or employees; the United States to reach an overseas landing and to not more than two other (iv) Lost baggage or personal effects; address: addressees in the general area of the (v) Tickets or cargo shipments and (1) Distress messages and distress route segment of the flight to which the payment therefore; traffic. message refers, containing information (vi) Location of passengers and cargo; (2) Messages concerning the safety of required for weight and balance (vii) New or revised passenger or human life. computation and remarks essential to cargo rates; (3) Flight safety messages the rapid unloading of the aircraft; (viii) Crew assignments and similar concerning— (ii) Concerning changes, taking effect operations personnel matters taking (i) Air traffic control, including— within 72 hours, in aircraft operating effect within 7 days; (A) Messages concerning aircraft in schedules; (ix) Post flight reports for record flight or about to depart; (iii) Concerning the servicing of purposes; (B) Departure messages; aircraft en route or scheduled to depart (x) Publicity and special handling (C) Flight plan departure messages; within 48 hours; regarding dignitaries; or (D) Arrival messages; (iv) Concerning changes in the (xi) Reservations, when originated by (E) Flight plan messages; collective requirements for passengers, aircraft operating agencies to secure (F) Flight notification messages; crew, or cargo of aircraft en route or space required in transport aircraft. (G) Messages concerning flight about to depart, if the changes are cancellation; and caused by unavoidable deviations from § 189.5 Limitation of liability. (H) Messages concerning delayed normal operating schedules and are The United States is not liable for any departure; necessary for flight regularity; omission, error, or delay in transmitting (ii) Position reports from aircraft; (v) Concerning non-routine landings or relaying, or for any failure to transmit (iii) Messages originated by an aircraft to be made by aircraft en route or about or relay, any message accepted for operating agency of immediate concern to depart; transmission or relayed under this part, to an aircraft in flight or about to depart; (vi) Concerning parts or materials even if the omission, error, delay, or and urgently needed to operate aircraft en failure to transmit or relay is caused by (iv) Meteorological advice of route or scheduled to depart within 48 the negligence of an employee of the immediate concern to an aircraft in hours; or United States. flight or about to depart. (vii) Concerning pre-flight (4) Meteorological messages arrangement of air navigation services Issued in Washington, DC on July 11, 1995. concerning— and, in the case of non-scheduled or David R. Hinson, (i) Meteorological forecasts; irregular operations, operational Administrator. (ii) Meteorological observations servicing of aircraft scheduled to depart [FR Doc. 95–18915 Filed 8–1–95; 8:45 am] exclusively; or within 48 hours. BILLING CODE 4910±13±M federal register August 2,1995 Wednesday Misuse inTransitOperations;FinalRule Transit Operations;PreventionofAlcohol Prevention ofProhibitedDrugUsein 49 CFRParts653and654 Federal TransitAdministration Transportation Department of Part VIII 39617 39618 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations DEPARTMENT OF TRANSPORTATION transit operators, one insurance carrier, segregating these functions would cause two U.S. senators, one U.S. administrative havoc. According to a Federal Transit Administration representative, and two associations. An number of commenters, volunteers do overwhelming majority of these not perform safety-sensitive work on a 49 CFR Parts 653 and 654 commenters (50 of 54) favored regular and consistent basis. As a result, [Docket No. 92±H or I] exempting volunteers. Only four testing would be difficult to administer. commenters (two large transit operators, Several commenters argued that the cost RIN 2132±AA37; 2132±AA38 one small transit operator, and one trade of administering these tests would be Prevention of Prohibited Drug Use in organization) opposed exempting prohibitive. Some claimed that the cost Transit Operations; Prevention of volunteers from FTA’s drug and alcohol of providing testing would drain Alcohol Misuse in Transit Operations testing rules. The commenters raised a operating budgets and drastically reduce number of key issues: the services that are provided. For AGENCY: Federal Transit Administration, Volunteers are not likely to be example, one commenter estimated that DOT. involved in drug or alcohol-caused the cost of providing drug testing for its ACTION: Final rule. collisions. Several commenters pointed volunteers would exceed $43,000 per out that no statistical evidence suggests year. This additional cost would SUMMARY: The Federal Transit that volunteer transit drivers have been translate into 597 fewer rides per month Administration (FTA) is amending its involved in drug or alcohol-caused or 7,164 rides per year. Another drug and alcohol testing rules to exempt collisions. Many small operators stated dimension of the problem would be the volunteers and eliminate the citation that they have operated for years cost of losing the use of volunteers’ requirement in the non-fatal, post- without one incident relating to the use vehicles. A number of commenters accident testing provision applicable to of drugs or alcohol. Several operators indicated that volunteers often provide non-rail vehicles. This rule is intended noted that they already provide a transportation with their own vehicles. to ease administrative burdens and comprehensive screening program that The potential loss of those drivers clarify certain provisions in the existing evaluates a volunteer’s driving record would place a tremendous hardship on rules. along with their criminal history. For transit providers in rural areas. EFFECTIVE DATE: September 1, 1995. example, one program requires a Exempting volunteers compromises medical statement signed by a rider safety. As mentioned above, four FOR FURTHER INFORMATION CONTACT: For physician, a vehicle inspection commenters believe that exempting program issues, Judy Meade, Office of statement signed by a mechanic, proof volunteer drivers from drug and alcohol Safety and Security, Federal Transit of insurance, a driver’s license print-out, testing is contrary to the spirit of the Administration, telephone: 202–366– and a code of conduct which includes testing mandates of Congress and in 2896. For legal questions, Nancy Zaczek a statement that the driver will not use direct conflict with safe practice and or Kristin O’Grady, Office of Chief mood-altering drugs or alcohol while common sense. One commenter Counsel, Federal Transit serving as a volunteer. In addition, this suggested that the exemption Administration, telephone: 202–366– same program requires annual medical compromises safety and erodes the 4011 (voice); 202–366–2979 (TDD). and vehicle statements from its existing intent of a drug and alcohol-free Copies of the regulation are available in drivers. Further, commenters claimed workplace. alternative formats upon request. that volunteers are generally retired Discussion SUPPLEMENTARY INFORMATION: On professionals with a heightened level of February 6, 1995, FTA published a safety. According to commenters, the FTA agrees with those commenters Notice of Proposed Rulemaking (NPRM) majority of volunteers are over 60 years that favor exempting volunteers from proposing to amend its drug and alcohol old, community-minded, and not likely the drug and alcohol testing testing rules to (1) exempt volunteers to be drug or alcohol users. requirements. Based on the comments and (2) eliminate the citation People will not volunteer if they must submitted to FTA, the significant cost of requirement in the non-fatal, post- submit to drug and alcohol testing rules. subjecting volunteers to drug and accident testing provision applicable to Commenters stated that volunteers alcohol testing far outweighs the safety non-rail vehicles. FTA also sought consider a drug and alcohol test an benefits. Commenters indicated that comment on whether an ‘‘accident’’ invasion of privacy. Since volunteers volunteers often are screened by the should be defined to include the are not compensated for their services operator and are mature citizens with discharge of a firearm by a transit and are not entitled to the benefits that good driving records. Furthermore, the security officer. FTA received 83 employees receive, volunteers are not costs related to conducting drug and comments over a two-month period. likely to submit to drug and alcohol alcohol testing of volunteers are testing requirements. In fact, several considerable. First, the operator must I. Volunteers commenters stated that some volunteers divert funds from its transportation Under FTA’s current drug and alcohol have indicated that they would not functions to pay for drug and alcohol rules, 49 CFR Parts 653 and 654, a continue to volunteer if they had to testing. Second, the operator may lose volunteer who performs a safety- submit to a drug or alcohol test. Some volunteers and their vehicles if drug and sensitive function generally is subject to commenters claimed that volunteerism alcohol testing is required. Third, the testing for prohibited drugs and the is down from last year and argued that time volunteers are able to donate is misuse of alcohol. Since issuance of the required drug and alcohol testing will always limited and would be further final rules in 1994, however, a number surely exacerbate this downward trend. restricted by the time consumed by the of entities have urged the agency to It is costly and impractical for testing process. Finally, many of the exempt volunteers from application of organizations to administer drug and operators that depend heavily on the rules. alcohol tests to volunteers. Many volunteers are small and cannot easily volunteers are part-time and serve a absorb the extra cost that testing Comments variety of functions, e.g. clerical volunteers would involve. On the volunteer issue, FTA received support, in addition to safety-sensitive As noted above, a few commenters 54 comments from large and small work. Commenters stated that argued that exempting volunteer drivers Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations 39619 from drug and alcohol testing is Police officers rarely issue citations in additional unfunded costs that are not contrary to the spirit of the testing time for drug and alcohol testing to be in proportion to any expected benefit. mandates of Congress in the Omnibus useful. The majority of commenters Discussion Employee Testing Act of 1991. indicated that law enforcement officials However, the legislative history of the rarely issue citations in non-fatal FTA agrees with those commenters drug and alcohol testing requirement accidents. When a citation is warranted, who favor removing the citation does not reflect a specific concern about often too much time has passed for the requirement. Because of the delay in drug and alcohol testing of volunteers. testing to be useful. One commenter issuing a citation in many accidents, the In fact, the tragic accidents that moved pointed out that unless an officer citation requirement renders post- Congress to action involved professional witnesses the accident, the officer will accident alcohol and drug testing transportation employees, not want to conduct an investigation before virtually ineffective. volunteers. See, for example, issuing a citation, which means that Arguments that removing the citation Conference Report to Accompany H.R. virtually no post-accident tests are requirement would increase the number 2942, Department of Transportation and conducted for non-fatal accidents. of drug and alcohol tests given and Related Agencies Appropriation Bill, Local guidelines sometimes already increase the cost are not persuasive. The Fiscal Year 1992, in Congressional require testing without a citation. Two legislative history reveals that Congress Record, H7672, October 3, 1991. large commenters indicated that local intended that post-accident testing of FTA recognizes that the term guidelines provide for a stricter safety-sensitive employees should be ‘‘volunteer,’’ as used in the revised standard that already requires post- required definition of ‘‘covered employee,’’ could accident testing, even without a citation In the case of any accident in which occurs be construed broadly to include any being issued. a loss of human life, or, as determined by the non-employee. FTA’s intention in this Requiring a citation is inconsistent Secretary, other serious accident involving final rule, however, is to exempt only with the Omnibus Employee Testing Act bodily injury or significant property damage. It is not the Committee’s intent that drug and non-employee volunteers who perform a of 1991. One commenter opined that the alcohol testing should be required every time service as a charitable act without the Omnibus Transportation Employee there is an accident involving a mass expectation of receiving a benefit, Testing Act of 1991 requires that FTA transportation operation. Rather, post- whether financial or as part of a mandate testing, without the citation accident testing should be limited to those program established to relieve an requirement, to insure that the transit instances in which there is a loss of human obligation. Other non-employees remain industry is free from employees using life or other accident of sufficient magnitude covered by the rule, i.e., those who illegal drugs and misusing alcohol while in terms of bodily injury or significant provide charitable service in return for performing safety-sensitive functions. property damage for which testing for drugs FTA’s definition of ‘‘accident’’ should and alcohol would be warranted. Report of some benefit, for example, in the the Senate Committee on Commerce, context of ‘‘workfare’’-type programs change. Commenters suggested several Science, and Transportation, on S. 676, that make public assistance or other changes to FTA’s definition of Omnibus Transportation Employee Testing benefits contingent on the donation of ‘‘accident’’ for the purpose of Act of 1991. 102d Congress, 1st Session, transportation services or community determining when post-accident testing Report 102–54 (1991). (Emphasis added.) service programs that confer academic is necessary. It was not FTA’s intention Based upon the comments FTA credit or provide an alternative to a to solicit comments on this part of the received, the Agency does not believe criminal sentence. This issue was not rule, but rather the part of the rule that that the issuance of a citation is the best raised in the NPRM or in the comments currently requires a citation to be issued measure for whether the accident is of to the docket, but we would consider it before post-accident testing occurs. sufficient magnitude to warrant drug in the future if appropriate. Commenters made the following and alcohol testing. The issuance of a arguments in favor of retaining the II. Post-Accident Testing citation depends on several factors, such citation requirement: as whether the law enforcement officer FTA received 20 comments from large The citation requirement is easy to was physically present at the accident and small transit operators on FTA’s follow. One commenter noted that the scene. These factors are often proposal to eliminate the citation citation requirement provides an easily completely unrelated to the magnitude requirement in the non-fatal, post- understood benchmark and gives of the accident. Moreover, the timing of accident testing provision applicable to decision-making confidence to the issuance of a citation is not driven non-rail transit vehicles. Currently, 49 supervisors and managers. Another by the requirements of drug and alcohol CFR sections 653.45(a)(2)(i) and commenter pointed out that the current testing. As a result, by the time a 654.33(a)(2)(i) require a post-accident regulation operates well in that it citation is issued, it is often too late to drug and alcohol test after a non-fatal requires the judgment of law conduct drug and alcohol testing. accident if, among other things, the enforcement officials, people who are The result of requiring a citation as operator of the mass transit vehicle trained in accident investigation, to the trigger for a post-accident drug and involved in the accident receives a assess whether the transit operator’s alcohol test is that too many accidents citation from a State or local law actions contributed to the accident. have not been properly investigated for enforcement official. Five large and two The proposed rule would require drug and alcohol-related causes. This small transit operators favored retaining more testing, which will increase overall amendment is better tailored to the citation requirement. Eight large and costs. One commenter estimated that the accomplish the Congressional intent five small transit operators commented proposed rule would require the testing that all significant, non-fatal accidents that the citation requirement should be of approximately twenty more should trigger drug and alcohol testing eliminated. individuals a year, adding an additional of appropriate personnel. $3,000 to their estimated $70,000 Comments annual cost of conducting drug and III. Definition of Accident—Armed Commenters made the following alcohol testing. Another commenter Security Personnel arguments in favor of eliminating the pointed out that elimination of the FTA received only seven responses to citation requirement: citation requirement will result in our request for comment on whether the 39620 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Rules and Regulations definition of ‘‘accident’’ should include D. Paperwork Reduction Act § 653.45 [Amended] the discharge of a firearm by armed This rules does not include 3. The first sentence of security personnel (who are considered information collection requirements § 653.45(a)(2)(i) is amended by safety-sensitive workers subject to the subject to the Paperwork Reduction Act. removing ‘‘if that employee has received drug and alcohol testing program). Most a citation under State or local law for a commenters opposed an amendment to E. Executive Order 12612 moving traffic violation arising from the the definition of ‘‘accident’’ to include We reviewed parts 653 and 654 under accident’’ and adding ‘‘unless the the discharge of a firearm by a covered the requirements of Executive Order employer determines, using the best employee while on duty. Most of these 12612 on Federalism. These proposed information available at the time of the commenters were transit operators who rules, if adopted, will not change those decision, that the covered employee’s noted that they already have internal assessments. performance can be completely policies and procedures for dealing with F. National Environmental Policy Act discounted as a contributing factor to the accident’’. accidental discharges of firearms. A few The agency determined that these commenters favored including the regulations had no environmental PART 654ÐPREVENTION OF discharge of a firearm in the definition implications when it issued parts 653 ALCOHOL MISUSE IN TRANSIT of ‘‘accident,’’ mostly for safety reasons. and 654, and there will be none under OPERATIONS Since there seems to be little interest in these amendments. amending the definition of accident to 4. The authority citation for part 654 include the discharge of firearms, FTA G. Energy Impact Implications continues to read as follows: will not take any action at this time. These amendments do not affect the Authority: 49 U.S.C. 5331; 49 CFR 1.51. use of energy. IV. Regulatory Process Matters 5. The definition of ‘‘covered List of Subjects in 49 CFR Parts 653 and A. Executive Order 12688 employee’’ in section 654.7 is revised to 654 read as follows: Alcohol testing, Drug testing, Grant The FTA evaluated the costs and § 654.7 Definitions benefits of the drug and alcohol testing programs—transportation, Mass rules when it issued 49 CFR parts 653 transportation, Reporting and * * * * * and 654 on February 15, 1994, at 59 FR recordkeeping requirements, Safety and Covered employee means a person, 7531–7611. It is not anticipated that the Transportation. including an applicant or transferee, who performs a safety-sensitive function change to the post-accident testing For the reasons set forth in the for an entity subject to this part; provision should significantly alter the preamble, the FTA is amending Title 49, Code of Federal Regulations, parts 653 however, a volunteer is covered only if costs and benefits of either part 653 or and 654 as follows: operating a vehicle designed to 654. On the other hand, the exclusion of transport sixteen or more passengers, volunteers from coverage under the Part 653ÐPREVENTION OF including the driver. rules should slightly lower the overall PROHIBITED DRUG USE IN TRANSIT * * * * * cost of the program. OPERATIONS § 654.33 [Amended] B. Departmental Significance 1. The authority citation for part 653 continues to read as follows: 6. The first sentence of Neither rule is a ‘‘significant § 654.33(a)(2)(i) is amended by regulation’’ as defined by the Authority: 49 U.S.C. 5331; 49 CFR 1.51. removing ‘‘if that employee has received Department’s Regulatory Policies and 2. The definition of ‘‘covered a citation under State or local law for a Procedures, because it involves only employee’’ in section 653.7 is revised to moving traffic violation arising from the minor changes to parts 653 and 654. read as follows: accident’’ and adding ‘‘unless the § 653.7 Definitions employer determines, using the best C. Regulatory Flexibility Act information available at the time of the * * * * * decision, that the covered employee’s In accordance with the Regulatory Covered employee means a person, performance can be completely Flexibility Act, 5 U.S.C. 601 et seq., the including an applicant or transferee, discounted as a contributing factor to FTA evaluated the effects of parts 653 who performs a safety-sensitive function the accident’’. and 654 on small entities when they for an entity subject to this part; were issued in February 1994. These however, a volunteer is covered only if Issued on: July 28, 1995. changes will not significantly change operating a vehicle designed to Gordon J. Linton, that analysis, but should reduce the cost transport sixteen or more passengers, Administrator. of drug and alcohol testing for small including the driver. [FR Doc. 95–19025 Filed 8–1–95; 8:45 am] entities. * * * * * BILLING CODE 4910±57±P federal register August 2,1995 Wednesday Certain LaborOrganizations and ItsEmployeesRepresentedby Between MetroNorthCommuterRailroad Emergency BoardToInvestigateDisputes Executive Order12967ÐEstablishingan The President Part IX 39621 39623 Federal Register Presidential Documents Vol. 60, No. 148 Wednesday, August 2, 1995 Title 3— Executive Order 12967 of July 31, 1995 The President Establishing an Emergency Board To Investigate Disputes Be- tween Metro North Commuter Railroad and Its Employees Represented by Certain Labor Organizations Disputes exist between Metro North Commuter Railroad and certain employ- ees represented by certain labor organizations. The labor organizations in- volved in these disputes are designated on the attached list, which is made a part of this order. The disputes have not heretofore been adjusted under the provisions of the Railway Labor Act, as amended (45 U.S.C. 151 et seq.) (the ‘‘Act’’). Parties empowered by the Act have requested that the President establish a second emergency board pursuant to section 9A of the Act (45 U.S.C. 159a). Section 9A(e) of the Act provides that the President, upon such request, shall appoint a second emergency board to investigate and report on the disputes. NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States of America, including section 9A of the Act, it is hereby ordered as follows: Section 1. Establishment of the Board. There is established effective July 31, 1995, a board of three members to be appointed by the President to investigate these disputes. No member shall be pecuniarily or otherwise interested in any organization of railroad employees or any carrier. The board shall perform its functions subject to the availability of funds. Sec. 2. Report. Within 30 days after creation of the board, the parties to the disputes shall submit to the board final offers for settlement of the disputes. Within 30 days after submission of final offers for settlement of the disputes, the board shall submit a report to the President setting forth its selection of the most reasonable offer. Sec. 3. Maintaining Conditions. As provided by section 9A(h) of the Act, from the time a request to establish a board is made until 60 days after the board makes its report, no change, except by agreement, shall be made by the parties in the conditions out of which the disputes arose. Sec. 4. Records Maintenance. The records and files of the board are records of the Office of the President and upon the board’s termination shall be maintained in the physical custody of the National Mediation Board. Sec. 5. Expiration. The board shall terminate upon submission of the report provided for in section 2 of this order. œ– THE WHITE HOUSE, July 31, 1995. 39624 Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Presidential Documents LABOR ORGANIZATIONS Brotherhood of Locomotive Engineers including the American Train Dis- patchers Department Brotherhood of Railroad Signalmen International Association of Machinists & Aerospace Workers International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers International Brotherhood of Electrical Workers International Brotherhood of Firemen and Oilers International Brotherhood of Teamsters Sheet Metal Workers International Union Transport Workers Union of America Transportation Communications International Union-ARSA Division United Transportation Union [FR Doc. 95–19174 Filed 7–31–95; 4:52 pm] Billing code 3195–01–P i Reader Aids Federal Register Vol. 60, No. 148 Wednesday, August 2, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING AUGUST Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. 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The Fax-On-Demand Proposed Rules: 194...... 39131 telephone number is: 301±713±6905 806...... 39128 372...... 39132 17 CFR 42 CFR FEDERAL REGISTER PAGES AND DATES, AUGUST Proposed Rules: 409...... 39122 270...... 39574, 39592 484...... 39122 39101±39240...... 1 274...... 39574 Proposed Rules: 39241±39624...... 2 18 CFR 412...... 39304 413...... 39304 35...... 39251 424...... 39304 284...... 39252 485...... 39304 489...... 39304 19 CFR 132...... 39108 44 CFR 64...... 39123 24 CFR 25...... 39236 46 CFR 26...... 39236 30...... 39267 ii Federal Register / Vol. 60, No. 148 / Wednesday, August 2, 1995 / Reader Aids 150...... 39267 160...... 39268 Proposed Rules: 5...... 39306 10...... 39306 12...... 39306 15...... 39306 47 CFR 1...... 39268 73...... 39127 Proposed Rules: 1...... 39134 61...... 39136 64...... 39136 69...... 39136 73 ...... 39141, 39142, 39143, 39308 49 CFR 171...... 39608 172...... 39608 575...... 39269 653...... 39618 654...... 39618 Proposed Rules: 571...... 39308 1312...... 39143 50 CFR 204...... 39248 210...... 39271 216...... 39271 250...... 39271 270...... 39271 604...... 39271 Proposed Rules: 17 ...... 39309, 39314, 39326, 39337 23...... 39347 663...... 39144